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Challenging Evidence: 402 hearings and beyond!

By: Christa Haggai-Ramey
CAALA Vegas 2012

The very basic fact of challenging evidence is that all evidence must be admissible to be introduced at trial.  (Cal. Evid. Code § 350.)  Relevant evidence is evidence that has any tendency to prove or disprove any fact of consequence.  (Cal. Evid. Code § 210.)  Seems pretty simple.  But, of course it is not.  The courtroom is not the wild-wild west and judges can, and should, exclude evidence that is unreliable for any number of reasons.  Evidence may be unreliable because it is hearsay (and, therefore, not trustworthy), is character evidence (when character is not at issue), is untested or not respected in the scientific community, among other reasons.  Evidence may also be unreliable when any probative value of the evidence is “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the jury.  (Evid. Code § 352 [emphasis added].)

There are a number of ways that the trial lawyer can challenge evidence.  If you learn about evidence that is unreliable and should be challenged early in litigation, you may file a motion in limine.  Sometimes the motion may alternatively request that the court hold a Evidence
Code, section 402 hearing before determining whether the evidence should be excluded.  You may learn of unreliable evidence after expert discovery or even during trial.  You should alert your issues to the judge as soon as you learn of any issues.  Sometimes just objecting at the time the question is asked is all that is needed.

It is important on a preliminary note to suggest, encourage, and plead with you all to look at your evidence early and often during litigation.  Know where the bodies are buried and what you need to do to protect your client.  I once had a mediator tell me that defense counsel criticized me at mediation by stating that I worked a case up like a defense lawyer.  I think what he meant to say he was surprised I knew my case as well as I did – which is certainly no insult.  I also know, being married to a defense attorney, that many of us in the Plaintiff’s bar have a reputation for not knowing our evidence/facts of our cases as well as we should.  I begin investigating, studying and learning everything about my case for day one!  You should too.  Make sure you leave no stone unturned.

In this regard, you should make sure you do not skimp on ordering your client’s medical records.  There is a lot of potential for the discovery of unreliable and misleading evidence here.  When I first sign a client up, I give them a fairly long questionnaire, which is primarily based upon form interrogatories and other questions I think that the defense may ask my client.  I get them to list all medical providers for the last 5 years, sometimes more depending upon the injury and case value.  I immediately begin ordering and summarizing medical records.  When you do this, you will certainly discover providers your client did not disclose – this is usually where the scary stuff may be found.

As you are investigating, studying and learning, make a list of evidence which concerns you.  Some of this may become the subject of your later evidentiary challenges.  Keep that list handy and update it often.   You will find items to add from medical records; interviews with your client and other witnesses; there will be information in discovery responses; and you will find information in depositions.  In some cases your evidentiary challenges may be a short list – others may be more substantial.

Motions in Limine

The most common way to address evidentiary issues you have in your case when you know about the evidence early on is a motion in limine. These motions are made in advance of trial and governed by various rules, including Los Angeles County Court Rules, Rule 3.57, which provides:

  1. Required Declaration.Motions made for the purpose of precluding the mention or display of inadmissible and prejudicial matter in the presence of the jury must be accompanied by a declaration that includes the following:
    • Specific identification of the matter alleged to be inadmissible and prejudicial;
    • A representation to the court that the subject of the motion has been discussed with opposing counsel, and that opposing counsel has either indicated that such matter will be mentioned or displayed in the presence of the jury before it is admitted in evidence or that counsel has refused to stipulate that such matter will not be mentioned or displayed in the presence of the jury unless and until it is admitted in evidence;
    • A statement of the specific prejudice that will be suffered by the moving party if the motion is not granted; and
    • If the motion seeks to make binding an answer given in response to discovery, the declaration must set forth the question and the answer and state why the use of the answer for impeachment will not adequately protect the moving party against prejudice in the event that evidence inconsistent with the answer is offered.
  2. Summary Adjudication Improper. A motion in limine may not be used for the purpose of seeking summary judgment or the summary adjudication of an issue or issues. Those motions may only be made in compliance with Code of Civil Procedure section 437c and applicable court rules.
  3. Bifurcation of Issues Improper. A motion in limine may not be used for the purpose of seeking an order to try an issue before the trial of another issue or issues. That motion may only be made in compliance with Code of Civil Procedure section 598.
  4. Timing of Ruling. The court may defer ruling upon a motion in limine, and may order that no mention or display of the matter that is the subject of the motion be made in the presence of the jury unless and until the court orders otherwise. If the court so orders, or if the motion is granted, it is the duty of counsel to instruct associates, clients, witnesses, and other persons under their control that no mention or display be made in the presence of the jury of the matter that is the subject of the motion.

Motions in Limine should be reserved for true evidentiary issues.  I have heard judges state at these conferences all of the time that motions that basically ask that they follow the law are a wasting the court’s time.  Further, you will lose credibility with the Court when you file such motions.  Therefore, you should not be filing motions along the lines of “To Exclude Evidence Not Produced in Discovery.”  This sort of motion is premature and is basically telling the judge they should follow the law if an issue arises.  The purpose of motions in limine was most succinctly stated in People v. Morris (1991) 53 Cal.3d 152, 188, 279 Cal.Rptr. 720, 807 P.2d 949, disapproved on an unrelated ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, 38 Cal.Rptr.2d 394, 889 P.2d 588, as noted in Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659 [56 Cal.Rptr.2d 803]:

“Motions in limine are a commonly used tool of trial advocacy and management in both criminal and civil cases. Such motions are generally brought at the beginning of trial, although they may also be brought during trial when evidentiary issues are anticipated by the parties. In either event, they are argued by the parties, either orally or in writing or both, and ruled upon by the trial judge. The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. (3 Witkin, Cal. Evidence, supra, § 2011 at p. 1969.) ‘The advantage of such motions is to avoid the obviously futile attempt to “unring the bell” in the event a motion to strike is granted in the proceedings before the jury.’ (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337 [145 Cal.Rptr. 47].) [¶] Motions in limine serve other purposes as well. They permit more careful consideration of evidentiary issues than would take place in the heat of battle during trial. They minimize side-bar conferences and disruptions during trial, allowing for an uninterrupted flow of evidence. Finally, by resolving potentially critical issues at the outset, they enhance the efficiency of trials and promote settlements. [Citation.]”

Basically, motions in limine should be reserved for the most prejudicial evidence to avoid alerting the jury to the issue of the particular piece of evidence during trial (i.e., not some potential yet unknown piece).  You will want to make sure you file important evidentiary motions in limine in advance of trial.  These often come up with expert witness’ qualifications and testimony beyond their areas of expertise or in the instance of scientific testimony that is new or untested.  For instance, is the Defense’s expert opining outside his or her area of expertise.  (Evid. Code 720.)  If so, then you should alert the judge to this in a motion in limine in advance of trial.

Some judges are very particular about filing your motions in limine in time to be heard at the final status conference.  This can present a number of problems.  Most importantly, expert discovery will often not be completed in time to notice a motion in limine on the day of the final status conference.  Expert discovery may be occurring until the eve of trial.  Often times, most of the motions in limine issues arise during expert discovery.  The area I see them come up most often is an expert opining on issues beyond their area of expertise.  This may be a neurologist (non-surgeon) commenting on the need for surgery or the biomechanic opining on the issue of causation of injury.  In either respect, these folks are not qualified to testify to these things.  For instance, I have had a number of cases where a certain neurologist was designated to testify for the defense on the issue of Plaintiff’s injuries and whether surgery is indicated.  The good doc is a neurologist not a neurosurgeon.  Therefore, he is not qualified to give opinions about the necessity of surgery or the costs related to that surgery.  I have kept him from testifying to these opinions at trial.

Evidence Code Section 720 states as follows:

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 relates. [S]uch special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

An expert who lacks the proper knowledge or education may not testify as an expert witness as to the ultimate issues at trial. (Putensen v. Clay Adams, Inc. (1970) 12 Cal. App. 3d 1062, 1081.)  If the special knowledge or education level of an expert is not shown before trial, he or she may not testify as an expert at trial. (People v. King (1968) 266 Cal. App. 2d 437, 444.)  In order to be qualified as an expert in a subject, one must have the basic educational background customary for others in the field in which the expert proposes to testify.  (Pearce v. Linde (1952) 113 Cal. 2d 627, 630-631.)  When one does not possess the requisite educational level or knowledge in a subject, then one may not testify as an expert.  (People v. Fierro (1991) 1 Cal. 4th 173, 223-224.)  Therefore, having a doctor in medicine or a board certification in neurology is not enough – he or she is not a surgeon.

This will also frequently come up with the biomechanic overreaching in their opinions.

“Biomechanics” is defined as the study of “the mechanics of biological and esp. muscular activity.”  (Webster’s Ninth Collegiate Dictionary 152 (1989).)  It has also been defined as “the understanding or the application of engineering and physics principles to biological systems.” (Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal. App. 3d 53, 58 n.3.)  Some accident reconstruction experts will actually subject themselves to repeated low-speed rear-end impacts in an attempt to prove that one cannot be injured in such a collision.  This is more frequent than you might think.   According to one article, human volunteer tests of this type are “nothing more than anecdotal,” and are confusing and deceptive. The primary flaw is that the test subject anticipates the impact, which renders the results dissimilar to most real life automobile impacts and reduces the likelihood of injury. (See R. Mahoney, “Challenging Expert Testimony in Low Speed Cases” Trial Excellence (Esquire One, 2001), Vol. 13, No 6, pp. 7–8.)  Think about this – the occupants are always facing straight forward, with their hands in the 10/2 position.  What is more, they know the accident is coming.

Low-speed impact cases provide fertile ground for evidentiary disputes, especially regarding accident reconstruction and biomechanic expert testimony. In these cases, the defense attempts to put forth expert testimony that occupants of vehicles involved in minor impact accidents could not have been injured, based upon supposedly reliable tests and studies. Other disputed evidence in these cases may include comparisons of low speed accidents to the forces involved with everyday activities (such as “plopping” in a chair), photographs of the purportedly “undamaged” vehicles, and testimony of uninjured experts or witnesses who participated in low speed accident tests.  Several commentators have stated that much of the expert evidence in these cases is “junk science” and should be excluded under Daubert reliability challenges. (See R. Mahoney, “Challenging Expert Testimony in Low Speed Cases” Trial Excellence (Esquire One, 2001), Vol. 13, No 6; Chapter 13, “Overcoming Junk Science Defenses,” Plaintiffs’ Lawyers Guide to Minor Impact Cervical and Lumbar Injury (Thomson West).)

Experts designated as biomechanical experts, are not qualified to provide expert opinion on the cause of injuries.  As stated in Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498, 7 Cal.Rptr.2d 608, “[t]he law is well settled that in a personal injury action causation must be proved within a reasonable medical probability based upon competent expert testimony.”  (See also Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402, 209 Cal.Rptr. 465.)  In the case of Salasquevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, the court held that medical causation of injuries can only be determined by expert medical testimony.  In Inskeep v. Busby (1962) 207 Cal.App.2d 848, the court held that it was proper for a medical expert to opine to the issue of injury causation – both that the injury existed and that a party accident caused the injury.  (Inskeep, supra, 207 Cal.App.2d at 851.)

Injury potential or the causation of the injury to any plaintiff can only be stated by a qualified medical expert with medical education, training, and a license under the California Business and Professions Code.  The term “diagnose” is defined as “to determine the type and cause of a health condition on the basis of signs and symptoms of the patient.” (Mosby’s Medical Dictionary 480 (5th Ed. 1998.)  Thus, the question of causation of a human injury is a component part of a diagnosis, which is, in turn, a part of the practice of medicine.  A biomechanic does not have this expertise.

Therefore, remember when you are taking depositions of defense biomechanics, get all studies and articles on which they are relying to form any opinions.  Make sure that you ask for these in your document demand attached to their expert witness deposition notice.  If you do not get these documents at deposition, follow-up GET THEM.  Then READ them.  Often times these studies relying upon cadavers or are accidents reconstructions that are not similar to yours.  Remember – only relevant evidence is admissible.  If opinions are based upon test and test subjects that are not similar to your client (different ages, genders, pre-existing conditions, etc.) and your accident, it is not reliable and not relevant.  File a motion in limine to exclude this junk science. Bottom line here is to anticipate all of the issues.  The case of the perfect liability and no warts does not get tried – those will settle.

402 Hearings

Some judges may want to conduct a 402 hearing on important evidentiary issues, such as expert testimony or scientific testimony.  You may also want to request the 402 hearing.  This could give you a preview of the evidence and how it will come in at trial.  Evidence Code Section 402 provides:

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.

(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.

This will arise when evidence would not be otherwise relevant without the existence of the preliminary fact being proven.  This is most common in the case of scientific evidence or evidence of the use of drugs or alcohol.  By way of example, I have now had two cases where evidence of methamphetamines where present on toxicology reports immediately following the accident or injury.  The question becomes what does that mean – did the Plaintiff take an illegal substance or just cold medication?  Can that question be determined on a toxicology report?  If so, was the level of methamphetamines sufficient to impair judgment or motor skills?  These are arguments and debates that you do not want to occur in the presence of the jury.  And an affirmative answer is necessary on these questions in order for the evidence to be relevant evidence for the purposes of trial.  That is, where the admissibility of evidence depends upon proving that preliminary fact or facts, this is a question the court needs to determine in advance of allowing the evidence in at trial.  (Reed v. Clark (1873) 47 Cal. 194.)  Therefore, you will want to request a 402 hearing to be held in advance of trial or during trial on some issues.

Pocket Brief During Trial

Sometimes you may not want to bring a motion in limine before trial for strategic reasons.  For instance, you may not want to alert the other side to unfavorable evidence that they may be unaware exists.  In these cases I draft what I call a “Pocket Brief” – one that I keep in my pocket until, and only if, the need arises to bring it to the Court’s attention.  I believe that these can be important tools.  You of course can just object to evidence and request a side bar.  However, if you come armed with a briefing on a particular issue, it has a lot more power.  What is more, you are making a better record for any potential appeal.


Bottom line, during trial things you never anticipate will come up.  Study and know your Evidence Code.  Pay careful attention to hearsay rules and exceptions.  These are the most misunderstood rules of evidence.  However, anything big or highly prejudicial you should have already filed your motions on and not saved them to chance.  Once a juror hears a question and potentially an answer – an objection and motion to strike cannot unring the bell.

Trial requires many hours of preparation but it is never rehearsed or memorized – nor should it be.  You must always anticipate changes in the game plan.  Like in football, even in the most practiced teams make mistakes, fumble the ball, or jump off-sides or throw and interception.  You need to be prepared to run with the ball after that interception or how to recover from your own fumble.  This means you are planning for any potential.  You know your evidence.  You are going into that trial prepared.

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