Defendants_motion_in_limine_2

Motion

Cal. Super. - 4th Dist.January 27, 2017

Law Offices of 10 11 12 13 14 Ls 16 17 18 19 20 21 22 23 24 25 26 2: 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92 (949) 434-2500 633 ELECTRONICALLY RECEIVED Superior Court of California, County of Orange 02/22/2019 at 03:41:15 PM Clerk of the Superior Court aw Offices By Clarissa Bustamante, Deputy Clerk of Cullins & Grandy LLP Moulton Park Place 23141 Verdugo Drive, Suite 204 Laguna Hills, CA 92653-1341 (949)454-2500 Douglas D. Cullins: 105527 Heather G. Cote: 293368 Attorneys for Defendant, LILIANA MEZA SUPERIOR COURT OF THE STATE OF CALIFORNIA ORANGE COUNTY-CENTRAL JUSTICE CENTER PETER KASOLOI, No: 30-2017-00900040 oa Assigned For All Purposes To: Plain, HON. JAMES L. CRANDALL Dept. C33 VS. DEFENDANT’S MOTION IN LIMINE #2 TO EXCLUDE EXPERT MEDICAL LILIANA MEZA and DOES 1 to 25, REPORTS Defendants. Trial date: February 25, 2019 er N e e S a e s S s TO THE COURT, PLAINTIFF AND HIS ATTORNEYS OF RECORD: Defendant LILIANA MEZA respectfully requests that, prior to the commencement of voir dire examination of the jurors, the Court consider and grant the instant motion in limine to exclude any and all medical reports sought to be introduced by Plaintiff as they are inadmissible hearsay and lack sufficient foundation. THE REPORT OF AN EXPERT IS NOT ADMISSIBLE INTO EVIDENCE Evidence Code §1200 provides that hearsay evidence is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” 1 DEFENDANT'S MOTION IN LIMINE #2 Law Offices of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92652 (949) 434-2500 Here, the reports of the experts in this matter were no made by a witness while testifying at a hearing. Therefore, they are not admissible to prove the truth of the matter stated. Although hearsay exceptions exist under California law, those exceptions do no cover expert reports. Specifically, the business records exception does not apply. Evidence Code §1271 states: “Evidence of a writing made as a record of an act, condition or event is not made inadmissible by the hearsay rule when offered to prove that action, condition or event if: (a) The writing was made in the regular course of a business; (b) ~~ The writing was made at or near the time of the action, condition or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and the method and time of preparation were such as to indicate its trustworthiness.” An expert's medical report does not meet these requirements. The report was not made in the regular course of business as there is no evidence that a report is made for each patient. In fact, it is clear that at least some reports were prepared not for the doctor, but for “whom it may concern” or Plaintiff's counsel. The reports also cannot qualify as business records because there is no indication whatsoever that the reports were made at or near the time of the act, condition or event. In fact, the medical reports are prepared long after any treatment or care was rendered to the Plaintiff. The reports also constitute inadmissible hearsay unless the custodian of records of the physician testifies as to the identity and mode of preparation of the medical reports. Additionally, the business record exception pertains to a record of an “act, condition or event,” but any diagnostic opinion or opinion as to prognosis is not a statement of an “act, condition or even.” In People v. Reyes (1974) 12 Cal.3d 486, 503, the Court found: “The psychiatrist's opinion that the victim suffered from a sexual psychopathology was merely an opinion, not an act, condition or event within the meaning of the statute. ‘In order Z DEFENDANT'S MOTION IN LIMINE #2 Law Offices of 10 11 12 13 14 15 16 17 18 19 20 2% Zé 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92 (949) 454-2500 633 for a record to be competent evidence under that section it must be a record of an act, condition or event; a conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion; it may or may not be founded upon sound reason; the person who has formed the conclusion recorded may or may not be qualified to form it and testify to it. Whether the conclusion is based upon observation of an act, condition or event or upon sound reason or whether the person forming it is qualified to form it and testify to it can only be established by the examination of that party under oath. . .” However, the Reyes Court did reason that a patient's ailment is a statement of a fact or condition within the scope of the business record exception if it records what the person making the diagnosis has observed. The Court stated: “It is true that some diagnoses are a statement of fact or condition, for example, a diagnosis that a man has suffered a compound fracture of the femur is a record of what the person making the diagnosis has seen but this is not true where the diagnosis is but the reasoning of the person making it arrived at from the consideration of many different factors.” Reyes, 12 Cal.3d at 503. When a diagnosis or other conclusion is based on the reporter's thought process, the trier of fact must be given the opportunity to cross-examine him or her to determine what factors prompted the conclusion and whether he or she was qualified to make it. /d. Finally, with respect to any expert opinion that is contained in the medical reports, defendant objects to its admissibility because no foundation has been laid for expert testimony. Evidence Code §720 provides: “(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony related. Against the objection of a party, such special knowledge, skill, experience, training or education must be shown before the witness may testify as an expert. (b) A witness’ special knowledge, skill, experience, training or education may be shown by any otherwise admissible evidence, including his own testimony.” 3 DEFENDANT'S MOTION IN LIMINE #2 Law Offices of 9 10 1: 12 13 14 15 16 1 18 19 20 21 22 23 24 25 26 20 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills. CA 92633 (9:9) 454-2500 Since the medical reports do not contain the information necessary to qualify the physician as an expert, there is no foundation for his opinion testimony. The Court should therefore exclude the medical reports as hearsay evidence and because they lack foundation. Respectfully submitted. DATED: February , 2019 LAW OFFICES OF CULLINS & GRANDY LLP J ” sr LOA NE UGLAS D. CULLINS HEATHER G. COTE Attorneys for Defendant, LILIANA MEZA ORDER: Defendant's Motion in Limine #2 is: GRANTED DENIED 4 DEFENDANT'S MOTION IN LIMINE #2 10 I1 1:2 13 14 15 16 17 18 RES 20 21. 22 23 24 25 26 27 28 Law Offices of CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 PROOF OF SERVICE 1013a(3) C.C.P. STATE OF CALIFORNIA ) ) SS. COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. | am over the age of 18 and not a party to the within action; my business address is: 23141 Verdugo Drive, Suite 204, Laguna Hills, California 92653. I, Ryan Cullins, on the date below, served the foregoing document described DEFENDANT'S MOTION IN LIMINE #2 TO EXCLUDE EXPERT MEDICAL REPORTS on all interested parties in this action addressed as follows: PLEASE SEE SERVICE LIST IX] BY MAIL: As follows: | am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Laguna Hills, California in the ordinary course of business. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. DX] BY FACSIMILE: By facsimile machine telephone (949)454-1409, | served a copy of the above document(s) to the facsimile telephone number(s) on the attached service list by transmitting via facsimile machine. The facsimile machine | used complied with California Rules of Court, Rule 2004 and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), | caused the machine to print a transmission record of the transmission. [X] BY EMAIL: By attaching a .pdf copy of the above-referenced document(s) to an email to plaintiff's counsel Tigran Grigoryan, Esq. at tigran@lawgbg.com and Michael Alder, Esq. at cmalder@alderlaw.com and sending the email on the date below. [_] BY OVERNIGHT COURIER SERVICE: | caused such envelope(s) to be personally delivered via [Federal Express], to the addressee(s) designated on the attached service list. IX] STATE: | declare under penalty of perjury under the laws of the State of California that the above is true and correct. [1 FEDERAL: | declare that | am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on February 7 Z , 2019, at Laguna Hills, California. RYAN CULLINS — ( Law Offices of 10 11 1.2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 KASOLOI V. MEZA Orange County Superior Court — Central Case No.: 30-2017-00900040 Tigran Grigoryan, Esq. Ivy B. Blum, Esq. GRIGORYAN BLUM & GRIGORYAN 30 N. Raymond Ave., Suite 514 Pasadena, CA 91103 626-817-9022 626-598-3690 fax Attorneys for Plaintiff, PETER KASOLOI Michael Alder, Esq. Cioffi Remmer, Esq. ALDERLAW, PC 1875 Century Park East, Suite 1500 Los Angeles, CA 90067 310-275-9131 310-275-9132 fax cmalder@alderlaw.com Associated attorneys for Plaintiff, PETER KASOLOI