(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.
In Morales v. Thompson (1959) 171 Cal. App.2d 405, 407, the appellate court, citing former Vehicle Code section 488 (the predecessor to V.C. section 20013), noted that “the trial court properly precluded a police report plaintiff’s attorney sought to introduce…” As explained in Summers v. Burdick (1961) 191 Cal. App.2d 464, 470, Vehicle Code sections 488 and 488.5 (now sections 20012 to 20015, inclusive), preclude police reports from being admitted into evidence.
In addition, any witness statements contained within the report are inadmissible hearsay, and not subject to any recognized exception. Evidence Code section 1200, et seq.
Not only is the traffic collision report inadmissible, but the plaintiff should be precluded from introducing statements contained therein through the back door by way of their experts. As explained by the court in the recent case of Garibay v. Hemmat (2008) 161 Cal. App.4th 735, 743, an “expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural…” The expert in that case based his opinions from medical records which were hearsay, and therefore, the court concluded that the expert’s opinion based on assumptions of fact without evidentiary support has no evidentiary value. Id.
The court in Garibay disapproved of the back door method of admitting otherwise inadmissible evidence through experts: Physicians can testify as to the basis of their opinion, but this is not intended to be a channel by which testifying physicians can place the opinion of out-of-court physicians before the trier of fact. Id. In other words, experts should not be used as a method to put inadmissible evidence before the jury. “[T]he expert’s opinion may not be based on assumptions of fact without evidentiary support…” People v. Richardson (2008) 43 Cal.4th 959.
An expert may not testify as to the details of matters on which the expert relies if those matters are otherwise inadmissible. For example, an expert may not under the guise of reasons bring before the jury incompetent hearsay evidence. People v. Coleman (1985) 38 Cal.3d 69, 92.
Therefore, based on the above the defendants request that the court preclude admission of the traffic collision report into evidence, preclude the plaintiff’s counsel and witnesses from making reference to the report, and preclude the plaintiff’s experts from basing any opinions on the report and from testifying as to the contents of the report.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.