(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)
ALLOWING TESTIMONY, WITHOUT PROPER FOUNDATION, AMOUNTED TO ERROR OF LAW [C.C.P. §657 subds. 1 and 7.1
The following witnesses were erroneously permitted to give expert opinion and evidence without proper foundation:
Defendant’s Expert Accident Reconstructionist, Dr. Brown’s Opinion That There Was a Single Rear-end Impact to the Black Vehicle:
Over objection, and based solely on a single page, page 13, in the police report identifying. three impacts, Dr. Brown was allowed to testify that the Black vehicle may not have been impacted at all by the Escalade after the Escalade was hit by defendant White. That police report is attached as Exhibit 1. Plaintiff’s counsel objected that there was no foundation for such an opinion since the report was merely hearsay opinion of the officer’s, without a showing of his knowledge, education or training. Defendant was unable to sustain an offer of proof otherwise. Despite the foregoing, the court allowed Dr. Brown to express this opinion.
Subsequently, Officer King, the police officer who wrote that page of the report, testified. His testimony did not establish the necessary foundation for Dr. Brown’s opinion. (Declaration of Shana Mulligan, page 3, paragraph 5 and 6.) As Officer Brown explained, outside the presence of the jury, the three point-of-impacts described in his police report represented his opinion that the majority of the damage to the vehicles was done by the first three collisions and not the collisions that followed White striking Lyon.
After an in-depth 402 hearing, the court held that Officer King’s education, background, knowledge and experience did not qualify him to give expert testimony on the respective magnitudes of the collisions. (Declaration of Shana Mulligan, page 3, paragraphs 6 and 7.)
Because this statement on the police report was inadmissible, it could not lay an adequate foundation for an opinion by Dr. Brown. No other basis was cited by Dr. Brown in his deposition. This opinion that there were only three impacts should have been excluded. (San Diego Land & Town Co. v. Neale (1891) 88 Cal. 50, 62-63; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.) This testimony was prejudicial to plaintiff. (See Part 5 of 12.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.