(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.)
Officer King: His Opinion on the Magnitude of the Collisions:
Defendant called Officer Ben King. Because plaintiff’s counsel questioned his capacity to give any expert opinion testimony, the court required a 402 hearing on foundation. At the close of the hearing it was obvious that Officer King lacked sufficient training and experience to express any opinions on the cause, magnitude or number of collisions which occurred. Further, he had no personal information since he was not present at the collision site at the time of the accident. After hearing his testimony the court instructed him not to express his opinions to the jury.
Despite the foregoing and despite multiple admonishments by this court, Officer King intentionally and prejudicially responded to plaintiff’s questions. He insisted on placing his opinions on reconstruction before the jury. He gave unfounded expert opinion testimony in an area on which he was directed not to opine, telling the jury that the damage to the Blacks’ vehicle was caused by the force of the first collision with Mr. Lyon. This inadmissible testimony is reflected in the decision of the jury, i.e. that Mr. Lyon’s negligence caused the damage to the black vehicle and the resulting traumatic brain injury to Dr. Black.
Under Evidence Code section 720 subd. (a), a person is qualified to testify as an expert only if he has special knowledge, skill, experience, training or education sufficient to qualify his as an expert on the subject to which his testimony relates. (Evid. Code section 720 subd. (a)) … the courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.)
Absent a foundational showing of the knowledge, skill, education or training required (Evid. Code section 720 subd. (a)) Officer King should not have testified as to his opinion. This misconduct of the witness and error in law in allowing his testimony, created an irregularity in the proceedings. When his testimony is coupled with defendant’s expert Dr. Brown’s that there was potentially one collision (Lyon with Black), it is probable that it prejudiced the jury in favor of the defendant and such prejudicial testimony influenced the jury to come back with a finding of no negligence. (Code of Civil Procedure section 657 subd. 1, 6 and 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.