Personal Injury Law

Elder Abuse Victim Challenges Expert In Sacramento Nursing Home Wrongful Death Case, Part 2 of 2

By Moseley Collins, Esq.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

SPECULATIVE TESTIMONY REGARDING PLAINTIFF'S LEVEL OF FUNCTIONING WOULD BE HIGHLY PREJUDICIAL

The court has inherent power to grant a motion to exclude Any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clement v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451; Peat. Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d 272, 288.

Evidence Code §352 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. People v. Cardenas (1982) 31 Cal. 3d 879, 904.

Evidence Code §402 allows this court to hear and determine the question of the admissibility if evidence outside the presence or hearing of the jury. Mize v. Atchison, Topeka & Sante Fe Ry. Co. (1975) 46 Cal. App.3d 436, 448.

THE COURT MAY EXCLUDE AN EXPERTS OPINION WHERE BASED ON SPECULATION OR CONJECTURE

An expert may not base his/her opinion on speculation or conjecture. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 338; Long v. Cal-Western States Life Ins. Co. (1955) 43 Cal. 2d 871, 882 (Experiments based largely on speculation or conjecture are not the proper subject of expert testimony). An expert's opinion may also be excluded if it is not shown to be reliable. People v. Price (1991) 1 Cal. 4th 324, 419-420; People v. Carter (1957) 48 Cal. 2d 737, 752.

Full post as published by Sacramento Injury Lawyer Blog on December 30, 2009 (boomark / email).