(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.)
THE AUTHORITIES CITED BY THE DEFENSE ARE NOT APPLICABLE TO THE FACTS OF THIS CASE
Defendants’ reliance on Kennemur v. State of California, (1983) 133 Cal.App.3d 907 is misplaced. Even a cursory review reveals the case to be inapposite.
In Kennemur, the plaintiff’s expert, Dr. Mitchell, was deposed on three separate occasions over a six-day period by the defendant The witness was specifically asked whether he was going to testify on accident reconstruction. He specifically stated that he was not and would leave that to a different expert He said that he was limiting his testimony to the stability of the automobile involved in the accident. (Id. at 912.) At the second session of his deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.
The issue before the Court was not whether Dr. Mitchell could testify to areas into which opposing counsel had failed to delve but rather whether he could testify on accident reconstruction issues abut which he was specifically asked and had stated he had no opinion.
The Court stated:
The decisive fact in the present case is the appellant’s failure to disclose Mitchell’s expected testimony … either at Mitchell’s deposition or as required by Section 2037.3. This failure deprived respondent to prepare for Mitchell’s cross-examination.
The Court went on to say that respondent was entitled to rely on Mitchell’s disclaimer [regarding the scope of his testimony] until such time as appellants disclosed that Mitchell had conducted further investigation and had reached additional opinions in a new area of inquiry. (Id. at 919.) (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.