LIMITING EXPERT TESTIMONY TO OPINIONS STATED IN DEPOSITION TESTIMONY
By Paul R. Kiesel, Esq.

Defense counsel and some plaintiffs are using the case of Kennemur vs. State of California (1982) 133 Cal.App.3d 907 for the proposition that experts' testimony given at the time of their depositions must encompass the full extent of the opinions offered at the time of trial. To prevent plaintiffs' experts from introducing any opinions other than those specifically expressed in the deposition, do not be surprised if you are faced with a Motion in Limine based upon the Kennemur decision.

Under California Code of Civil Procedure §2034, the availability of an expert witness and the proper pre-trial disclosure of the contents of their testimony requires that a complete and final opinion be disclosed before trial. The Civil Discovery Act of 1986 incorporated provisions of former §2037, et seq, with modifications, into the current §2034. Section 2034(f)(2)(B) requires a party to disclose "a brief narrative statement of the general substance of the testimony that the expert is expected to give" when such expert has been retained by that party for the purpose of forming and expressing an opinion in preparation for trial testimony.

The Kennemur court held as follows: The legislature has singled out the pre-trial discovery of expert opinions for special treatment. When appropriate demand for exchange of expert witness list, the party is required to disclose not only the name, address and qualifications of the witness but the general substance of the testimony the witness is expected to give at trial. (§2037.3) In our view, this means that the party must disclose either in his witness exchange list or at his expert's deposition, if the expert is asked, the substance of the facts and the opinions which the expert will testify to at trial. Only by such a disclosure will opposing party have reasonable notice of the specific areas of investigation by the expert, the opinions he has reached and the reasons supporting the opinions, to the end the opposing party can prepare for cross-examination and rebuttal of the expert's testimony. Only by such a disclosure will the possibility of a reasonable settlement of the case before trial be encouraged. (citation) Id. at 919 (original emphasis).

In Kennemur, the Court of Appeal ruled that the trial court had properly excluded the testimony of an expert at trial when the expert had, in his pretrial deposition, testified that he was not going to express an opinion with regard to causation. The Court of Appeal agreed the preclusion of the expert's proffered trial testimony regarding causation was appropriate.

I suggest that Plaintiffs who face such a motion argue that the Kennemur decision is being read much too expansively, and that its holding is much more limited than the defense contends, in the following manner:

The Kennemur decision does not advance the theory suggested by the defense---namely, that experts should be limited in their testimony to those opinions and conclusions specifically articulated at the time of the deposition. The Kennemur holding is very narrow and simply prohibits an expert from attempting to offer at trial an opinion upon a subject concerning which he has been questioned and has specifically indicated no opinion would be offered. The general subjects to be addressed by all of the plaintiff's experts have been set forth in plaintiff's expert declaration pursuant to C.C.P. §2034, as well as the deposition taken pursuant to the expert disclosure. However, to hog-tie any expert, plaintiff or defense, to only those areas covered in the expert's deposition is an unreasonably restrictive interpretation I contend was not intended by the Kennemur court. The factual backdrop for the Court's decision was the plaintiff's attempt to challenge the defense theory as to the cause of the accident by means of the testimony of plaintiff's expert accident reconstructionist, after that expert had specifically testified at deposition that he was not offering opinions respecting the accident reconstruction. The Court held that the defendant "was entitled to rely on [the expert's] disclaimer until such time as [plaintiff] disclosed that [he] had conducted a further investigation and had reached additional opinions in a new area of inquiry" and suggested that the disclosure problem presented by such post-deposition revelation could be solved by offering the expert for additional deposition, even after hours during trial, on such new areas. Id., page 920. But in the absence of a specific representation that an opinion would not be offered in a particular subject, which is the only scenario to which Kennemur was intended to apply, plaintiff should not be precluded from asking an expert to "expand upon" his deposition testimony at trial.

Be forewarned, however, that while I would certainly advance this position in opposition to the defendant's Motion in Limine, I believe that many judges will be inclined to grant such a motion and prohibit my experts from offering opinions and conclusions beyond those specifically articulated at the time of their depositions.

If you wish to effectively use the Kennemur decision as sword in detailing all of the opinions and conclusions which will be offered by the opposing parties' experts, I would recommend that at both the beginning and the end of the deposition you provide a "Kennemur warning" advising the expert that you are there to specifically seek all of the expert's opinions and conclusions relative to work which was performed in the subject litigation. I would advise opposing counsel and the expert that it is your intention to file a Motion in Limine under the Kennemur decision to limit the testimony of the experts specifically to the opinions and conclusions offered at the time of trial. Defendant's counsel may object to your attempt to issue this warning to his expert but do not be intimidated make sure that you put on the record your intention to make a Motion in Limine to exclude opinions beyond those offered at the time of the deposition. By having inquired of the expert and then at the completion of the deposition asking, "have you given all of the opinions and conclusions which you intend on offering at the time of trial" the expert responds, "I have answered questions that you have asked me and beyond that I have no further answers," is not an acceptable response. You can then retort that, it is your intention to seek to exclude any opinions which are given or conclusions reached different than those offered at the time of expert's deposition. This attempt on the part of counsel to "sandbag" opposing counsel by having the expert from providing testimony on a subject simply because opposing counsel did not ask about it, I believe can be rectified by issuing this Kennemur warning.

What might surprise you is opposing counsel's response to your Kennemur warning. In many depositions I have used this particular statement, defense counsel have themselves begun to examine their witnesses to ensure that all of the opinions are set out in the deposition so that the critical testimony counsel wants to elicit at the time of trial is not excluded.

I, personally, do not like the strict limitations which some courts have applied to the Kennemur decision but, recognizing that courts have done so, instructing the witnesses on the Kennemur case should be effective litigation tool.