(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)
This Opposition will be based upon this Notice, the attached Memorandum of Points and Authorities, any supplemental briefs submitted on the issues, as well as on the pleadings, papers, files, and records in this matter, and upon such other further documentary and oral evidence as may be presented at the hearing on this matter.
(1) Plaintiffs’ experts are allowed to respond to the opinions given by Defendants’ experts, especially where the Defendants’ experts were deposed after the Plaintiffs’ experts; and
(2) Counsel should be allowed the right to present all relevant evidence which will assist the jury. There is no basis for a restriction based on an abstract in limine ruling.
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Plaintiff opposes the Motion in Limine #1 submitted by Defendants to the extent that it seeks to exclude testimony of Plaintiffs’ experts that either the Defendant did not elicit from the expert at the time of deposition, or constitutes comment or opinion regarding the testimony of opposing experts.
California Code of Civil Procedure section 2034(j) governs the exclusion of expert testimony. A Court may exclude testimony of an expert only if a party did not list the witness as an expert, did not submit an expert witness Declaration that complied with the expert information disclosure statute, did not produce the expert’s reports, or did not make the expert available for deposition. California Code of Civil Procedure § 2034(j); Bonds v. Roy (1999) 20 Cal.4th 140.
Section 2034(j) does not apply to instances when the expert offers an opinion that the opposing party did not ask about at his deposition, or to comment on the opinions of other experts who were deposed after their depositions were concluded. For example, it would be a gross abuse of both the discovery process and the motion in limine process for Defendants to demand that Plaintiff’s experts be deposed first before they have had an opportunity to learn the opinions of Defendants’ experts and then forbid Plaintiffs’ experts from responding to the Defense expert opinions on the grounds that they did not provide such opinions at their depositions. (See Part 2 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.