Judge: Daniel S. Murphy, Case: 21STCV44115, Date: 2023-03-27 Tentative Ruling

Case Number: 21STCV44115    Hearing Date: March 27, 2023    Dept: 32

BACKGROUND

            On October 21, 2019, Lenny & Larry’s, LLC filed this action against Defendant A&B Ingredients, Inc. The operative Second Amended Complaint, filed June 6, 2022, alleges (1) breach of the implied warranty of merchantability, (2) breach of the implied warranty of fitness, (3) negligent misrepresentation, (4) fraudulent misrepresentation, and (5) unfair competition. The complaint arises from the following facts.

            Plaintiff is a manufacturer of health and fitness oriented food products, such as cookies. Defendant sells a variety of ingredients to food manufacturers, including Plaintiff. The particular ingredient at issue in this case is the antioxidant CytoGuard. CytoGuard is a cultured dextrose powder (“CDP”). Plaintiff alleges that the inclusion of CDP in its cookies caused the products to have an “off flavor” and “soapy” taste, leading to customer complaints and forcing Plaintiff to discontinue sales. Plaintiff contends that the cause of the flavor issue was the presence of lipase in the CDP.  

            On March 1, 2023, Defendant filed the instant motion in limine to exclude the testimony of Plaintiff’s experts regarding damages. The experts relied on admittedly inaccurate information in arriving at their conclusions. Defendant also seeks to preclude Plaintiff’s experts from testifying based on corrected information that Plaintiff subsequently produced.

LEGAL STANDARD

            The Court has the inherent power and responsibility to grant a motion in limine to exclude “any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial.” (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.) “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.)

DISCUSSION

The testimony of an expert witness must be “[b]ased on matter . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . .” (Evid. Code, § 801(b).) Relying on Section 801, Defendant argues that the testimony of Plaintiff’s experts must be excluded because inaccurate information is not of a type that may be reasonably relied upon.

However, Plaintiff’s experts do not plan on testifying based on inaccurate information. Rather, they seek to revise their opinions based on corrected sales data. Historical sales data is a type of information that is reasonably relied upon for an assessment of damages caused by lost sales. Even if the data is inaccurate, that goes to the weight or credibility of the expert testimony, not its admissibility.

Defendant also argues that the law precludes Plaintiff from obtaining a “do-over” by offering new expert testimony based on the corrected sales data. Defendant relies on Easterby v. Clark (2009) 171 Cal.App.4th 772 for the proposition that an expert witness cannot change a prior opinion. According to Defendant, an expert may only be re-deposed to offer a new opinion on an additional subject. Easterby does not stand for such a proposition. Rather, the court held that “a party's expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult.” (Id. at p. 780.) The court actually allowed the challenged testimony because “Defendants learned approximately three months before trial that Regan would go beyond his original deposition testimony and offer a causation opinion at trial.” (Ibid.)

The court in Easterby made no distinction between correcting a prior opinion or opining on an entirely new topic. Both instances involve an expert offering testimony at trial beyond what was testified to in the initial deposition. And the logic of Easterby applies equally to either scenario: the new testimony is admissible if adequate notice is provided and the expert can be deposed about his new opinion.

Here, Plaintiff has provided notice that its experts will offer new testimony, and the notice is sufficiently in advance of trial to allow for deposition of the experts. Exclusion of the testimony is unwarranted where Plaintiff has provided adequate notice and opportunity to depose and is not attempting to hide its experts until trial. (See Kennemur v. State of California (1982) 133 Cal.App.3d 907, 920.) It is immaterial that Plaintiff’s experts are revising their opinions on an existing topic rather than opining on an entirely new topic. No case suggests that one is allowed but the other is not.

Defendant’s claim of prejudice is unconvincing given it has adequate time before trial to depose the experts, and Plaintiff has offered to pay for the costs of the new depositions. Defendant cites no authority precluding the admission of expert testimony based on a revised opinion where a party has sufficient opportunity to depose the expert, nor does Defendant cite any authority precluding such deposition from taking place. Defendant cites no authority characterizing this type of scenario as an improper “do-over” that results in undue prejudice. Plaintiff is not forever barred from introducing expert testimony on damages just because the initial assessment was inaccurate. It is fair to allow the experts to revise their opinions so long as Defendant has an adequate opportunity to depose the experts, and Plaintiff pays for the cost.

CONCLUSION

            Defendant’s motion in limine is DENIED. Plaintiff is to bear the costs of re-deposing experts Professor Stanton and Mr. Bergmark, including reporter fees and expert fees.