Daily Blast July 13, 2018

Today, the Court of Appeal, Fourth Appellate District, Division One (San Diego) published an interesting opinion in Belfiore-Braman v. Rotenberg (June 26, 2018, D072015) __Cal.App.5th ____. The case focused on whether the trial court abused its discretion in ruling, after an Evidence Code section 402 hearing, that a non-retained expert could not testify as to causation and damages. (Slip opn., p. 3.)

The underlying case stemmed from a hip-replacement surgery performed by the defendant. (Slip opn., p. 3.) The plaintiff designated an orthopedic surgeon to testify as to “all issues regarding standard of care, causation, and damages.” (Id. at p. 4.) After that, the plaintiff’s treating physician referred the plaintiff to undergo an MR neurography study. (Ibid.) The doctor who performed the study did not meet with or speak to the plaintiff during the study. (Ibid.) The plaintiff later amended her expert exchange, adding the doctor to a list of treating doctors/non-retained experts who would testify regarding causation. (Ibid.) The defendant took the doctor’s deposition, wherein the doctor indicated that he did not perform hip replacement surgeries and could not say what caused the plaintiff’s symptoms. (Id. at p. 5.) The defendant filed a motion in limine to exclude the doctor from testifying as to the cause of the plaintiff’s injuries. (Id. at pp. 3-4.) The court granted the defendant’s motion after an Evidence Code section 402 hearing. (Id. at p. 9.) The trial court limited the doctor’s testimony to the study he performed and any observations gleaned from the study. (Id. at p. 11.) After a defense verdict, the plaintiff appealed. (Id. at p. 14.)

The Court of Appeal affirmed the trial court’s order, finding the trial court did not abuse its discretion in limiting the doctor’s testimony. (Slip opn., p. 23.) The doctor lacked the proper foundation to testify regarding the cause of the plaintiff’s injuries due to his limited relationship with the plaintiff and lack of knowledge regarding hip replacement surgeries. (Id. at p. 20.) Further, the doctor’s opinions would not be helpful to the jury because the doctor could only speculate as to causation. (Ibid.) The court stated that “[t]o assist in a causation determination, the expert must be able to explain why the researched facts convincingly led to a conclusion that it is more probable than not that a given negligent act was a cause-in-fact of the subject injury.” (Id. at p. 19.) Lastly, the court determined that because the plaintiff had already designated an orthopedic surgeon, any testimony by the doctor would be duplicative. (Id. at pp. 21-22.)

This case will be helpful to any motions in limine concerning non-retained expert opinions.