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.