(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
7. This opinion was offered by an non-designated expert.
Over Chance’s objection, Police Officer Smith opined what vehicle code in his opinion Molly Chance violated on the day of his brief inspection. (RT of Smith’s Testimony, 4/28/08. 29:25 – 30:28, Exh. 1). This expert opinion should never have been allowed Smith had never been designated as an expert as required under C.C.P. 2034 and SDSC Local Rule 2.1.18(3) nor was he offered as a qualified expert even at trial. Further, Smith did not qualify to be an non-designated expert under the two sole provisions of C.C.P. 2034.310(a). That expert has been designated by another party … No party had designated either of the police officers as experts before trial or even designated them as such in the joint witness list. (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial… Officer Smith could not be called to impeach any of the non-party accident eyewitnesses since he had not taken the time to find and interview them except for White who refused to appear.
8. Smith’s opinion impermissibly invaded the exclusive province of the jury as the ultimate finder of fact.
Officer Smith’s opinion went far beyond estimating the point or even area of contact like in the case of Arellano v. Moreno (1973) 109 Cal.Rptr. 421 Cal.App.2.Dist. Instead, his opinion went to the ultimate fact of a party’s negligence per se in violating a statute intended to prevent the type of incident in question. It was the charge of the jury to make a determination if either or both parties were negligent, not Smith.
The decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness on whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier (infra.). There was nothing offered by Smith’s testimony that was beyond the ability of the average juror to understand and apply to the vehicle codes read to them. All Smith was called to testify about was percipient observation as to where the bus had come to rest after hitting Chance and to possibly impeach witness testimony that diverged with what he recorded of a witness at the accident scene, i.e. Davie, Chance and White. It was only for the jury to apply what they learned from admissible percipient eye witness testimony and designated, competent expert testimony to determine if there was a preponderance of evidence to conclude that Chance was in fact outside the southern cross walk of 4th and Elm when the bus struck her and if so they could easily apply that information to the statute as read to them in jury instructions:
CVC 21954(a) Pedestrians outside crosswalks’ (a) Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard. (See Part 13 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.