Did You Know that an Expert can Testify that You were At Fault—Even if You Were Not!

By Barry P. Goldberg, A Professional Law Corporation
Nov 18, 2014

Barry P. Goldberg is careful when advising accident victims that think that their case is a “slam dunk” on liability. In fact, claimants should be aware that if the case goes into active litigation the insurers will hire experts to suggest that the accident did not happen the way it did and that the injury was not caused by the accident. Sometimes a jury will find any excuse to deny liability. A paid expert may be just the excuse the jury is looking for.

How can this happen? Basically, an expert can testify to almost anything as long as it is based on some facts or materials. Believe it or not, the testimony can be based on inadmissible evidence and hypotheticals as well. It takes a strong and experienced advocate to take on a professional witness and point out to a jury that the opinion is only as good as the facts relied upon to make such an opinion.

In California, it is well settled that an expert witness may testify as to the matters he or she relied upon in forming the opinion testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 618 [Gardeley].) “Expert testimony may... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert’s opinion testimony must be reliable.... [¶]So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. (In re Fields (1990) 51 Cal.3d 1063, 1070 [expert witness can base ‘opinion on reliable hearsay, including out-of-court declarations of other persons’].... [B]ecause Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter ... upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations; 2 McCormick on Evidence [(4th ed. 1992)] §324.3, p. 372 [explaining that under rule 703, Fed. Rules Evid., which allows the expert to disclose to the trier of fact the basis for expert opinion, ‘[t]he result is that often the expert may testify to evidence even though it is inadmissible under the hearsay rule.’].)” (Gardeley, at pp.618–619.) And, an expert may render an opinion based on “facts given ‘in a hypothetical question that asks the expert to assume their truth.’ [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence....” (Id. at p.618.)

Further, an expert’s opinion must be based “‘either on facts personally observed or on hypotheses that find support in the evidence.’ [Citations.]” (Pacific Gas & E. Co. v. G. W.Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 44.) “A hypothetical question need not encompass all of the evidence. ‘It is true that “it is not necessary that the question include a statement of all the evidence in the case. The statement may assume facts within the limits of the evidence, not unfairly assembled, upon which the opinion of the expert is required, and considerable latitude must be allowed in the choice of facts as to the basis upon which to frame a hypothetical question.” [Citation.] On the other hand, the expert’s opinion may not be based “on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors....”’ [Citation; see also 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, §194, p. 258 [‘The traditional method of taking the opinion evidence of an expert is the hypothetical question. This may be framed on any theory that can be deduced from the evidence, and the questioner may assume any facts within the limits of the evidence and omit any facts not deemed material.’].)” (People v. Vang (2011) 52 Cal.4th 1038, 1046.)

Typically, we see in trial hypothetical questions posed to the paid expert that are arguably based on facts which could be deduced from evidence. Experienced trial lawyers see the questions addressed a factual pattern which is always contrary to the Plaintiff’s theory of the accident. The questions are not exactly “fabricated” facts but rather based on some testimony or evidence.

That is why we see hearsay statements virtually become evidence because they are “not offered for the truth of the matter,” but simply served as one of the bases for the paid expert’s opinion. (See People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [no error in use of hearsay statements as they were not offered to establish the truth of the matter asserted but merely as one of the bases for the expert witness’s opinion].)

On appeal, obviously flawed defense verdicts are usually permitted to stand because “the jury was free to reject the expert testimony.” (Conservatorship of McKeown (1994) 25 Cal.App.4th 502, 509.) As stated before, it takes a strong and experienced advocate to take on a professional witness and point out to a jury that the opinion is only as good as the facts relied upon to make such an opinion.