A woman and her daughter were in two automobile accidents. One defendant rear-ended them in the first. In the second, another defendant broadsided them while they were driving together two months later. The plaintiffs sued both defendants, and by the time of trial, both defendants had admitted the accidents were their fault; the defendants, however, disputed the accidents caused the full range of injuries the plaintiffs claimed to have suffered.The trial court barred the plaintiffs’ neuropsychologist expert witness from opining the traumatic brain injury allegedly suffered by the mother was caused by the accidents because the plaintiffs did not give adequate notice the expert would offer such an opinion and because the expert was in any event incompetent to offer such an opinion. Concluding there was no other substantial evidence that either accident was the cause of her asserted traumatic brain injury and lower back injury, the court later granted the defendants’ motions seeking nonsuit as to those injuries. The appeals court was asked to decide whether the trial court abused its discretion in excluding the plaintiffs’ expert testimony, and whether the trial court properly granted the defendants’ nonsuit motions. For the following reasons, the appeals court affirmed the lower court’s decision.
The appeals court first held that the plaintiffs’ failure to designate the expert to testify on causation was a sufficient ground to exclude his testimony on that topic. The plaintiffs contended the “plain language” of their expert witness declaration gave sufficient notice that he would testify as to the cause of the victim’s alleged traumatic brain injury. Specifically, the plaintiffs quoted language from their expert witness declaration stating that the expert “will express opinions concerning the nature and extent of [the victim’s] injuries sustained in the subject accidents.” That language, the appeals court held, did not suffice to comply with the requirements of the Code of Civil Procedure’s expert disclosure statutes. The terms “nature” and “extent” refer to the type of an injury or its characteristics, as well as perhaps its severity. That, the court explained, is distinct from the concept of causation.
The expert witness designations the plaintiffs served for their other expert witnesses, the court continued, only served to confirm the point, i.e., that “nature and extent” is not a phrase that should be read to include the concept of causation. For seven of their other retained experts, the plaintiffs’ expert witness designations expressly advised that the witnesses would provide opinions “concerning causation,” among other topics. In addition, among the experts the plaintiffs disclosed—but did not call to testify at trial—was a witness with expertise in biomechanics and “human factors in accident causation,” who would be able to describe the “mechanism for injuries” to the plaintiffs and “the potential and likelihood of injuries and symptoms claimed by plaintiffs as a result of the impacts and forces involved in the auto vs. auto accidents.” These other expert witness designations revealed the plaintiffs were unmistakably explicit when providing notice that a witness would potentially offer an opinion on the cause of their claimed injuries. No similar language was included in this expert’s designation, which evinced an apparently knowing lack of compliance with the Code of Civil Procedure’s expert designation rules and highlighted the unfairness to the defendants if the jury were nevertheless permitted to consider opinion testimony from the expert on causation.
The plaintiffs contended, however, that the defendants were neither misled nor prejudiced by the absence of even an oblique reference to causation in the expert’s designation because he had testified about causation during his deposition. But the scope of the inquiry at a deposition is, the appeals court explained, broader than what is admissible at trial. In addition, giving testimony at a deposition neither assures its admissibility at trial (§ 2017.010) nor notifies the other side of an intent to offer that testimony at trial. The trial court was thus well within its discretion in ruling the jury would not be allowed to consider opinion testimony by the expert as to what caused the victim’s asserted traumatic brain injury.
The appeals court next held that nonsuit was proper because there was no substantial evidence that either accident caused the pertinent damages. The plaintiffs argued that the defendants’ motions for nonsuit should not have been granted because they presented substantial evidence that the accidents in question caused the damages that were the subject of the trial court’s ruling. The defendants protested that the plaintiffs waived their ability to seek review of the trial court’s nonsuit rulings because they failed to ask the trial court to allow them to reopen their case to present further evidence on causation. The cases cited by the defendants, the appeals court explained, did not support their position on waiver. The appeals court concluded that although the plaintiffs had the right to ask the trial court to reopen the case to present additional evidence, nothing in the case law cited by the defendants supported their contention that the plaintiffs’ failure to make such a request constituted a waiver of the plaintiffs’ right to challenge the grant of nonsuit on appeal.
For these reasons, the appeals court affirmed the lower court’s decision.
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