A jury found a medical center failed to timely diagnose breast cancer in plaintiffs’ family member, resulting in her death in 2010. Plaintiffs’ expert testified that to a reasonable degree of medical probability, decedent would have survived ten years had she been treated early, even if she had stage 4 cancer in 2007. The jury […]
Posttrial Award Of Expert Fees Under Civ.Proc. § 998.
Prior to trial, and pursuant to Code of Civil Procedure section 998, plaintiff offered to allow judgment to be entered in its favor and against defendant for $665,818. Defendant did not respond to the offer and plaintiff recovered $945,947 at trial. Defendant argued on appeal that the award of expert witness fees by the trial court […]
Trial Court Erred In Excluding Expert Opinion Testimony.
An excess insurance carrier covering Costco sued a tire manufacturer and its insurance carrier to recover sums the excess carrier expended in settlement of a personal injury claim resulting from tire defects. Both Costco and the tire manufacturer settled with the plaintiff in the underlying case. In a motion in limine in the present case, […]
The Continuing Chronicles Of Proving Cost Of Medical Treatment.
In a personal injury action, defendants filed a motion in limine to exclude testimony by plaintiffs’ nonretained treating physicians on any expert opinions that were not formed at the time of and for purposes of treatment, but instead were formed for purposes of litigation. Defendants argued that Plaintiffs had listed 25 individual, nonretained treating physicians […]
Junction Of Civil Procedure Statutes In Expert Exchange Context.
The trial court precluded plaintiff’s use of expert witnesses in a medical malpractice case on the ground plaintiffs unreasonably failed to timely disclose their designated trial experts after receiving a statutory demand from defendants. The initial trial date was February 14, 2012. Defendants served their demand for expert exchange on December 6, 2011 [70 days […]
Game Playing In Expert Exchange Results In Preclusion Of Use Of Experts At Trial.
Neither plaintiff nor defendant timely disclosed experts pursuant to Code of Civil Procedure section 2034.260 in a medical malpractice case. Plaintiff instead filed a motion to disqualify defense counsel. Defendants offered to delay the expert exchange until after the court ruled on the disqualification motion. The trial court denied the motion and defendant made another demand […]
Expert Witness In Federal Court Improperly Excluded.
In a case involving excessive chemical levels in a city’s water system, the city’s expert witness used a four-step methodology, which methodology was published in a manual commissioned by the Environmental Security Technology Certification Program of the U.S. Department of Defense. Based on his methodology, the expert gave his opinion of the dominant source of […]
Grant Of Summary Judgment Reversed Because Trial Court Erred In Not Admitting Plaintiff’s Causation Testimony.
Plaintiff was treated with the drug Zometa for several months after a diagnosis of breast cancer and chemotherapy. She was thereafter treated for osteonecrosis of the jaw by two oral specialists. Following the dental treatment, plaintiff brought an action against the manufacturer of Zometa, and in that pursuit offered the testimony of an expert on […]
Can’t Sue Family Court Child Custody Evaluator For Malpractice.
In a protracted and acrimonious child custody battle, the mother brought an action against a psychologist acting as a family court child custody evaluator for breach of contract, negligence and intentional infliction of emotional distress. The defendant demurred, citing Civil Code section 47, the litigation privilege and asserted the common law privilege for quasi-judicial acts. The […]
Permitting Expert Testimony A Judge Is Taken To Task For Leaving The Gate Unguarded.
In an asbestos action in federal court, a jury awarded damages totaling $10.2 million. An en banc Ninth Circuit vacated the judgment and remanded the matter for a new trial. The issue on appeal was the trial court’s permitting two expert witnesses to testify. The appeals court concluded: “The district court failed to make findings of […]