Brain-Injured Sacramento Doctor Sues Other Driver, Part 8 of 12

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

Assuming that inadmissible hearsay utilized by an expert to form an opinion is presented, an inquiry into the prejudicial effect of such matter becomes necessary. Here the Simms testing was used to support the opinion of Dr. Bend that Dr. Black was not telling the truth, that he was faking. The main consideration to the court is the purpose for which the material was presented. Where, as here, the jury is allowed to consider the hearsay (evidence presented by the expert in connection with proof of the matter asserted [i.e., the applicable test results), the principles approved by the Supreme Court in People v. Coleman (1985) 38 Cal.3d 69, 92, are violated, and prejudice is apparent. (Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at p. 1518.)

What could be more prejudicial than telling the jury that “objective” testing establishes that the plaintiff is not credible?

Material that forms the basis of an expert’s opinion testimony must be reliable. (1 Witkin, Cal. Evidence (3d ed. 1986) The Opinion Rule, ยง 477, p. 448.) For the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based. (Kennemur v. State of California (1982)133 Cal.App. 3d. 907, 923.)

Consistent with these well-settled principles, the trial court in this case erroneously ruled that Dr. Bend could build his house on a what amounts to nothing more than a pile of sand; Mary Simms’s inherently illegal and unreliable test results – test results from which Dr. Bend based his opinion that Dr. Black was not truthful and falsifying his brain injury.

Although Dr. Bend is certainly a licensed psychologist, Ms. Simms did not meet the basic criteria for a psychological assistant. Therefore, Ms. Simms could not act as the examiner, she could not legally administer neuropsychological testing for a private-non research purpose. Because she was solely responsible for the actual testing of Dr. Black and she did so in violation of the Business and Professions Code, this testing was illegal and prima facially an improper basis for any expert’s opinion as to the interpretation of same.

As the court is aware, the major issue in this case was Dr. Black’s cognitive injury. A critical component of the defense case was that Dr. Black was fabricating the injury for secondary gain. This highly prejudicial and inflammatory defense was based almost entirely on neuropsychological testing of Dr. Bend. Dr. Bend’ test results and the opinions flowing therefrom tainted the entire trial. This coupled with the unfounded testimony of Dr. Brown and Officer King inadmissible reconstruction of the accident succeeded in poisoning the jury against Dr. Black. All of the foregoing was objected to. None of the above referenced testimony should have been allowed. Unfortunately, these opinions were allowed to be placed before the jury. Their verdict directly reflects same. The cumulative effect of this testimony can lead to no conclusion other than plaintiff was prejudiced and requiring that plaintiff be given a new trial. (See Part 9 of 12.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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