Your Hearsay Objection to Expert Testimony in Support of an Award for Future Damages: Use it or Lose it

In David v. Hernandez, 2017 No. B270133, the California Court of Appeal, Second District, upheld the trial court’s evidentiary rulings on two distinct expert opinions: (1) speculative testimony regarding plaintiff’s marijuana intoxication was inadmissible, and (2) an award for plaintiff’s future surgery expenses, based in part on an expert’s reliance on hearsay, will be upheld where no hearsay objection is raised.

The defendant truck driver was hauling a flatbed trailer north on Pacific Coast Highway. Plaintiff was driving south on Pacific Coast Highway. Plaintiff’s vehicle collided with defendant’s trailer. Plaintiff had no recollection of the collision. Plaintiff sustained a compound fracture of his shoulder. At the hospital after the accident, plaintiff disclosed to his physician that he occasionally used marijuana, but had not consumed it within 36 hours prior to the incident. However, a urine sample tested positive for marijuana.

An initial jury trial resulted in a judgment for defendant. Plaintiff appealed and the appellate court reversed the judgment. On a retrial, the jury awarded plaintiff $3.3 million, including future expenses for four shoulder surgeries. Defendant appealed. Defendant conceded that one future shoulder surgery was reasonably certain, but argued there was insufficient evidence for three subsequent surgeries. Defendant also argued that the trial court erroneously excluded expert testimony that plaintiff’s driving ability was impaired by marijuana. The Court of Appeal affirmed the judgment for plaintiff.

Admissibility of Marijuana Intoxication Evidence

Plaintiff filed a motion in limine to preclude defendant’s expert from offering testimony regarding plaintiff’s positive drug screening. Defendant sought to admit expert testimony that plaintiff’s post-accident high blood pressure, rapid pulse, rapid respiratory rate, and loss of memory were consistent with being under the influence of marijuana. However, the court indicated that the same symptoms may be caused by stress and physical trauma. Plaintiff offered testimony from two experts who opined that it could not be determined whether plaintiff was intoxicated. The trial court granted plaintiff’s motion and excluded defendant’s expert testimony regarding the alleged intoxication. In doing so, the court relied on Evidence Code Section 801(b) (expert testimony must relate to a subject beyond common experience and assist the trier of fact). The court enumerated that the matter upon which an expert relies must provide a reasonable basis for his or her opinion, and not be based on speculation. The Court of Appeal affirmed the exclusion of defendant’s speculative expert testimony on plaintiff’s purported intoxication.

Admissibility of Future Surgeries Evidence

As to plaintiff’s award for four future shoulder surgeries, defendant argued on appeal that plaintiff’s treating physician’s testimony supported the need for only one surgery. Plaintiff required a prosthetic ball-and-socket shoulder joint. Plaintiff’s physician opined that over time, the cobalt ball will shift into the shoulder blade, requiring future surgeries. The defense expert opined that the ball-and-socket prosthetic would last for plaintiff’s lifetime, and would not require future surgeries. The Court of Appeal upheld plaintiff’s award for the cost of four future shoulder surgeries.

The court relied on Civil Code Section 3283 (allowing damages award for a future detriment reasonably certain to occur). The reasonableness of whether damages are certain to result in the future is a jury question. Plaintiff’s physician did not identify when the future surgeries would occur. As such, the treating physician’s opinion, alone, was insufficient evidence that plaintiff would require additional surgeries after the initial shoulder surgery. Plaintiff presented testimony from a life care planner who offered no evidence regarding the need for future surgery. However, plaintiff proffered testimony from an expert economist, who identified dates for the future surgeries after relying on information provided by the life care planner. Thus, the court inferred that plaintiff’s treating physician provided those dates to the life care planner. Although the economist’s testimony consisted of multiple hearsay, defendant did not object. Accordingly, the court held that plaintiff’s expert testimony was competent evidence, and “substantial” evidence when coupled with that of plaintiff’s medical and life care planning experts.

David serves as a reminder that expert opinion regarding a party’s intoxication will be precluded if based on conjecture. More importantly, David reinforces the idea that it is axiomatic that a party object to expert testimony consisting of improper hearsay, lest it be admitted to prove damages, causing one to forfeit potential appellate issues.

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July 28, 2017