The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.
IN THE ALTERNATIVE, THE COURT SHOULD CONDUCT A COTTLE HEARING OR SECTION 402 HEARING TO DETERMINE WHETHER OR NOT PLAINTIFF CAN MAINTAIN THEIR PRIMA FACIE CASE AGAINST DEFENDANT PRIOR TO JURY SELECTION.
Under California Evidence Code section 402:
(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury…
(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.
CAL.EVID.CODE section 402 (emphasis added). Further, California Evidence Code section 400 states in pertinent part:
As used in this article, preliminary fact means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence. The phrase the admissibility or inadmissibility of evidence includes the qualification or disqualification of a person to be a witness…
CAL.EVID.CODE §400 (emphasis added). By the above standard, the qualification of a witness to testify as an expert at trial is a preliminary fact subject to determination prior to jury empaneling. People v. Stanley (1984) 36 Cal.3d 253. (See Part 9 of 9.)
For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.