(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)
Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer v. Cooper, (1965) 233 Cal. App. 2d 750, 754, a case cited with approval in Kennemur, the court stated as follows concerning the scope of required deposition testimony:
The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for. In this case, Dr. Brown and Dr. Smith testified in their depositions as to their observations and opinions and they should not be limited by defense counsel’s failure to conduct a more thorough deposition, as is common in a personal injury case.
DEFENDANTS’ MOTION IS PRECISELY THE TYPE CRITICIZED BY THE COURT IN KELLY VS. NEW WEST FEDERAL SAVINGS
An important recent case on in limine motions, Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, addressed itself to precisely this type of motion and expressly found that such motions are not proper. The Court stated as follows at pages 670-673:
[M]any of the motions filed by Amtech were not properly the subject of motions in limine, were not adequately presented, or sought rulings which would merely be declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses. For example: MIL No.7, previously referred to, sought to limit the opinions of plaintiffs’ experts to those rendered at deposition and in written reports. Again, there was no supporting evidence to suggest what opinions had been rendered at the depositions, leaving the court and the parties to guess what opinions during trial may be included within the scope of the ruling.
It is a misuse of a motion in limine to attempt to compel a witness or a party to conform his or her testimony to a pre-conceived factual scenario based on testimony given during pretrial discovery. One purpose of pretrial discovery is to pin down the testimony of parties and witnesses that can used for impeachment at the time of trial. Amtech clearly succeeded in this regard. Other than issue preclusion based on responses to requests for admissions, sanctions for abuse of the discovery process, or a clear case of waiver or estoppel, a court abuses its discretion when it precludes a party form trying a case on a theory consistent with existing evidence, even though the pretrial testimony of the party relating to how the accident occurred is contrary to the theory.
In this case, Plaintiff or her experts have not engaged in any abuse of discovery, or any activity that could be construed as waiver or warrant estoppel. The Defendants’ motion is clearly a shotgun attempt at excluding relevant expert testimony based upon an overbroad reading of existing case law, as is noted in the first two sections of this motion. To allow the exclusion of Plaintiff’s experts testimony would only serve to harm the Plaintiff and reward the Defendants.
For the foregoing reasons, Defendant’s Motion in Limine No. 1 should be denied.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.