Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
SPECULATIVE TESTIMONY REGARDING PLAINTIFF’S LEVEL OF FUNCTIONING WOULD BE HIGHLY PREJUDICIAL
The court has inherent power to grant a motion to exclude Any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clement v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451; Peat. Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d 272, 288.
Evidence Code §352 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. People v. Cardenas (1982) 31 Cal. 3d 879, 904.
Evidence Code §402 allows this court to hear and determine the question of the admissibility if evidence outside the presence or hearing of the jury. Mize v. Atchison, Topeka & Sante Fe Ry. Co. (1975) 46 Cal. App.3d 436, 448.
THE COURT MAY EXCLUDE AN EXPERTS OPINION WHERE BASED ON SPECULATION OR CONJECTURE
An expert may not base his/her opinion on speculation or conjecture. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 338; Long v. Cal-Western States Life Ins. Co. (1955) 43 Cal. 2d 871, 882 (Experiments based largely on speculation or conjecture are not the proper subject of expert testimony). An expert’s opinion may also be excluded if it is not shown to be reliable. People v. Price (1991) 1 Cal. 4th 324, 419-420; People v. Carter (1957) 48 Cal. 2d 737, 752.
Sammi Nunn is not a licensed psychologist and has demonstrated no experience in evaluating mentally disabled individuals in order to determine their functional capacity. Therefore, she should be precluded from any testimony regarding plaintiff’s functional capacity and competency.
RELIEF REQUESTED
Plaintiff requests that the defense and the defense expert be prohibited from testifying regarding plaintiff’s functional capacity and competency.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.