The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth and brain injury lawsuit and its proceedings.)
If anything, after plaintiffs experts testify regarding the matters relied upon by them from Dr. Smith and Ms. Lee’s report, the defense can certainly request a jury instruction that evidence from those reports only be received for that limited purpose, specifically as part of the information upon which those experts base their opinion. In fact, that was specifically what was done in the Kelley case.
Additionally, defendant’s reliance upon the case of Mosesian v. Pennwalt Corporation (1987) 191 Cal.App.3d 851 is misplaced. (In defendant’s Motion this case is incorrectly cited as Mossman v. Pennant Corporation) In fact, the Mosesian facts are radically different than presented here. In Mosesian, a defense expert specifically testified as to the verbal hearsay opinions of six outside experts regarding the very specific conclusion that that expert was testifying to. This is not remotely close to the issues presented here. Additionally, the facts in Mosesian did not involve a medical issue with physicians relying on reports or studies and/or testing done by other medical experts.
In fact, the court in Mosesian acknowledged the rule and holding of Kelley v. Bailey. The court states:
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Kelly held that physicians could rely on reports of other physicians not as independent proof of facts but as part of the information that testifying physician used to base his own treatment or diagnosis. The report of the physician not testifying stands on a parity with the history of the accident revealed to the treating physician by the patient. Upon request, the jury should be given a limiting instruction that the hearsay is not admitted for the truth of what the patient told the original doctor but as the basis for each physician’s diagnosis. Id. at 861. The quote also states at 863:
This court does not find fault with defendant’s assertion that an expert may base an opinion upon evidence which is not itself admissible as long as it is the type of evidence upon which an expert may reasonably rely. The expert may even rely upon scientific tests performed by other experts. (See Part 4 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.