Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)
It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
The definitive criteria in guidance of the trial court’s determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal.2d 749, at page 753, 205 P.2d at page 5, to rest primarily on “occupational experience,” as stated: The proof of that standard (the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as “occupational experience,” the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood. 2 Wigmore on Evidence 3d Ed., § 556, p. 635.
He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured.” (Emphasis added.) Pearce v. Linde (1952) 113 Cal.App.2d 627, 630-631. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
There seems little reasonable basis for Defendant Smith’s position that he intends to elicit expert opinion testimony from Dr. Lee clearly concerning plastic surgery or nursing.
3) The Law of the Case is that Experts May Not Testify to any Opinions they did not Testify to at their Depositions
All parties agreed, and the Court granted Defendant Smith’s motion in limine to exclude expert testimony beyond the opinions expressed at the experts’ depositions. Defendant Smith now seeks to say, except when Defendant Smith wants to elicit opinions not testified to at depositions. If we are going to start carving out exceptions to the holdings of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919; Jones v. Moore (2000) 80 Cal.App.4th 557; and Bonds v. Ray (1999) 20 CaUth 140, this clearly had to be done before Defendant Smith sought to and obtained an order expressly following the Kennemur line of cases, thereby establishing the law of the case that there will be no expert testimony beyond the opinions expressed by the experts at their depositions.
CONCLUSION
Based upon the foregoing, Plaintiff Ana Black respectfully requests the court preclude Defendant Smith from questioning Dr. Lee regarding standard of care issues for plastic surgeons and nursing care.