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 personal injury cases present such issues to the court.
It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)
Lack of records at the deposition also does not mean that Dr. Lee should be barred from any opinion whatsoever in the broad subject area identified by Plaintiff in the motion. Dr. Lee likely also gleaned some information about David Hill’s military medical history through other sources he did review, such as the deposition of Stella Hill. Just because he does not consider the materials in the binder directly relevant to his opinions does not mean the materials are not relevant at all (it is clear why the events of February 23 and 24, 2008, are more pertinent to Dr. Lee than prior history). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The case law cited by Plaintiff is not on point. The case law cited deals with the scope of opinion an expert plans to present at trial, not the volume or scope of materials reviewed. Counsel cites to no case law that allows him to delineate the scope of opinion testimony to only the documents produced at the deposition. The cases counsel cites seem to stand for the proposition that an expert who affirmatively represents that he has no opinions outside of those provided at deposition or limits opinions to certain areas should be barred from providing opinion testimony on undisclosed areas at trial. This is simply not the case here. Dr. Lee admitted that he did not consider the military records to be as integral to his opinions as certain other records, but he never limited himself in the manner indicated in the cases cited by Plaintiff. A case that is more on point is Sinaiko v. Superior Court (Medical Board of California) 122 Cal.App. 4th 1133, 1142 which provides that an expert’s lack of familiarity with certain case materials is not sufficient grounds for excluding testimony. It is clear here that Dr. Lee at least skimmed the military records.
Plaintiffs counsel could have asked Dr. Lee to describe the documents he reviewed or about the contents of the binder of information. Counsel could have viewed his own records since (a) counsel for Medical Center pointed out that the records provided to the deponent were precisely the records Plaintiff produced to all parties and (b) counsel could have questioned the deponent on the records accordingly since the witness testified that he had at least skimmed the records. Dr. Lee’s inadvertent returning of the records to counsel does not mean he is precluded from opining on any substantive information he gleaned from the records. After all, Dr. Lee was able to state that the records were not especially key to his opinion only because he has some familiarity with the records and reviewed at least some of the records.
For all the foregoing reasons, Plaintiff’s Motion in Limine should be denied.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.