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 brain injury lawsuit and its proceedings.)
EXPERT OPINION IS PROPERLY EXCLUDED WHEN BASED ON ASSUMPTIONS, SPECULATION OR CONJECTURAL EVIDENCE
The Court has the inherent power to grant a motion in limine to exclude any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clemens 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.
Plaintiff should not be allowed to present expert opinions by Mr. Gold which are based on assumptions of fact without evidentiary support and pure speculation. An expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence. Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390. California Evidence Code § 801(b) provides, If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is … perceived by or personally known to the witness or made known to him at or before the hearing … Further, pursuant to California Evidence Code § 352, the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate an undue consumption of time or create substantial danger of undue prejudice, confusing the issues and/or misleading the jury.
Mr. Gold’s expert opinions are based on assumptions and speculation. For example, at deposition Mr. Gold provided the opinion that the Plaintiff could have been walking when crossing the crosswalk.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
He admits however, that such an opinion is pure speculation based on his part and is merely based on his belief that there is no concrete evidence that the Plaintiff was running or jogging even though the Traffic Collision Report and Mr. Gold indicated Plaintiff was running or jogging. Mr. Gold also testified that there was a large tree which blocked the driver’s view of the crosswalk until within 230 feet. However, he admits that he presumed the tree is what the policeman was talking about in the Traffic Collision Report and also admits that the Report never used the term blocked and that was an assumption he made based on speculation.
Mr. Gold goes on to opine that the safe stopping sight distance at a speed of 39 miles per hour is inadequate where the crosswalk was placed, yet he admits that there are no facts in this case to indicate the driver was going 39 miles per hour. Mr. Gold acknowledged that the driver testified he was going 18 to 20 miles per hour and the police report estimated he was going 27 to 37 miles per hour. As such, Mr. Gold’s opinion is not based on any relevant facts to this case. Mr. Gold goes on to provide opinions of what a fictional driver driving through the subject crosswalk would encounter, yet does not base such opinions on any of the facts provided by Mr. Gold, the actual driver in this case. Mr. Gold’s testimony has no evidentiary value and does not assist the trier of fact as his opinions are based on assumptions, conjecture and speculation. (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.