Judge Kerry Bensinger, Case Number: 21STCV16180, Date: 2025-05-08 Tentative Ruling

PLAINTIFF’S MOTION IN LIMINE NO. 1 TO EXCLUDE DEFENDANT’S EXPERT STEPHEN G. BRONARS, PH.D. FROM TESTIFYING REGARDING PLAINTIFF’S MITIGATION OF DAMAGES

DEFENDANT’S MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY, EVIDENCE, AND OPINIONS OF ANTHONY READING, Ph.D.

Plaintiff Carlos Chavez (“Plaintiff”) brings claims for violations of FEHA and CFRA and wrongful termination against Schlumberger Technology Corporation (“STC”). Plaintiff was terminated on June 23, 2020 and started mental health treatment in January 2021.

Before the court are two motions in limine: (1) Plaintiff’s Motion in Limine No. 1, and (2) STC’s Motion in Limine No. 6.

The court notes Plaintiff’s MIL No. 1 was denied at the Final Status Conference. (See Minute Order, date January 27, 2025.) Accordingly, the court proceeds to consider only the merits of STC’s MIL No. 6.

On March 7, 2025, STC filed MIL No. 6 To Exclude Testimony, Evidence, and Opinions of Dr. Anthony Reading, Ph.D. (“STC’s MIL No. 6”).

A motion in limine must present the specific evidence sought to be excluded. ¿“Until the evidence is actually offered, and the Court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the Court cannot intelligently rule on admissibility.” ¿(Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 671.) ¿Instead of a motion in limine, the proper procedure is to make an objection at the time the evidence is offered, which serves to focus the issue and to protect the record. ¿(Id.)

Accordingly, a motion in limine must specify the evidence, clearly state the exclusion, and explain why it applies.

Further, Local Rule 3.57(a) requires that 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:

1. Specific identification of the matter alleged to be inadmissible and prejudicial;

2. 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;

3. A statement of the specific prejudice that will be suffered by the moving party if the motion is not granted; and

4. 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.

STC seeks an order to exclude the proposed expert opinion testimony of Dr. Anthony Reading, Ph.D. Dr. Reading is a psychologist. Plaintiff intends to call Dr. Reading to opine that “[a]bsent his job loss, to a reasonable degree of psychiatric probability, [Plaintiff] would not have developed [Major Depressive Disorder] at this time.]” (Ozan Decl., Ex. 2, p. 41.) STC argues Dr. Reading’s testimony should be excluded for two principal reasons: (1) the matter upon which Dr. Reading bases his opinions is legally insufficient pursuant to Evidence Code section 801; and (2) Dr. Reading’s opinions are inadmissible under Evidence Code section 802 because they are the product of a sham differential diagnosis. The court addresses each in turn.

“Evidence Code section 801 provides: ‘If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based 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, unless an expert is precluded by law from using such matter as a basis for his opinion.’ (Italics added.) Subdivision (b) clearly permits a court to determine whether the matter is of a type on which an expert may reasonably rely.” (Sargon Enters., Inc. v. Univ. of S. California (2012) 55 Cal.4th 747, 769–70 (Sargon).) “‘An expert opinion has no value if its basis is unsound. [Citations.] Matter that provides a reasonable basis for one opinion does not necessarily provide a reasonable basis for another opinion. Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on ‘in forming an opinion upon the subject to which his testimony relates.’ (Italics added.) We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.” (Id. at p. 771, quoting Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.)

Here, Dr. Reading states that he based his opinions, in part, on Plaintiff’s medical records from Dr. Raymond Bautista. Dr. Bautista is a podiatrist. As relevant here, Plaintiff saw Dr. Bautista eighteen times between June 22, 2020 (the day before Plaintiff’s separation) and April 28, 2021. Each note reflects Plaintiff having “no nervousness, no depression, no memory change.” (Ozan Decl., Ex C, D021–D091.) Plaintiff began mental health treatment in January 2021 and reported for the first time the symptoms and episodes that form the basis for Dr. Reading’s eventual opinions. Given the chronology, STC contends Dr. Bautista’s medical records contemporaneously track Plaintiff’s emotional state, yet Dr. Reading testified to the contrary. Specifically, Dr. Reading testified, “I certainly examined those [medical] records. I don't believe they tracked contemporaneously a change in his emotional state. There were some

records distally that documented the changes --emotional state. But I'm not sure if those records proximal to his job loss supported the onset of psychiatric symptoms.” (Reading Depo., p. 48:5-11.) In other words, if Dr. Bautista’s records are properly weighed, STC argues those records are inconsistent with Dr. Reading’s ultimate opinion.

The court is not persuaded. As STC concedes, Plaintiff’s medical records with Dr. Bautista are not the only matters that Dr. Reading considered in forming his opinion. In addition to Dr. Bautista’s medical records, Dr. Reading reviewed Plaintiff’s deposition testimony and mental health records. (See Exhibit 3 to Ozan Decl., Ex. A, p. A069.) Dr. Reading also performed a psychological evaluation of Plaintiff which included an interview and psychological testing. (Id.) Further, when asked why he assumed Plaintiff’s medical records aren’t an accurate reflection of Plaintiff’s mental condition at the time of the visit with Dr. Bautista, Dr. Reading testified:

A. “I'm not assuming anything. I'm simply saying we -- we don't know in records whether someone's claiming or has even been asked. That's my understanding of records. We have to check that.

A. Certainly -- certainly, it's not unusual in this context for patients not to volunteer that kind of information because the nature of the information exchange is often defined by the agenda. The agenda in this case is his foot and a serious foot problem.”

(Reading Depo., p. 53:13-23.) Boiled down, STC takes issue with the weight Dr. Reading afforded the evidence. However, STC fails to show there is no reliable data to support Dr. Reading’s opinion. This is not grounds to exclude his testimony.

“Evidence Code section 802 provides: A witness testifying in the form of an opinion may state ... the reasons for his opinion and the matter ... upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based. (Italics added.) This section indicates the court may inquire into the expert's reasons for an opinion. It expressly permits the court to examine experts concerning the matter on which they base their opinion before admitting their testimony. The reasons for the experts' opinions are part of the matter on which they are based just as is the type of matter. Evidence Code section 801 governs judicial review of the type of matter; Evidence Code section 802 governs judicial review of the reasons for the opinion. The stark contrast between the wording of the two statutes strongly suggests that although under section 801(b) the judge may consider only the acceptability of the generic type of information the expert relies on, the judge is not so limited under section 802.” (Sargon, at p. 771 (cleaned up).)

“Evidence Code section 802 also permits the trial court to find the expert is precluded by law from using the reasons or matter as a basis for the opinion. “ ‘Law’ includes constitutional, statutory, and decisional law.” (Evid.Code, § 160.) Thus, “construed in the context of section 160, section 802 authorizes a court to promulgate case law restrictions on an expert's ‘reasons'....” [Citation.] This means that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert's reasoning. ‘A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.’ [Citation.]” (Id.)

Here, STC argues Dr. Reading’s testimony is inadmissible because he did not conduct a proper differential diagnosis to adequately eliminate other potential causes of Plaintiff’s alleged major depressive disorder such as COVID, diabetes, mobility issues, surgery, or recovery. For this reason, STC argues Dr. Reading’s ultimate opinion is “too great an analytical gap between the date and the opinion preferred.”

The court is not persuaded. A differential diagnosis “is a standard method doctors use to eliminate potential causes of illness to be able to reach a diagnosis. [Citation.] This process does not require doctors to eliminate all hypothetical causes before making a diagnosis. (Ibid.) A proper differential diagnosis is adequate to support [an] expert medical opinion on causation. [Citation.]” (Brancati v. Cachuma Vill., LLC (2023) 96 Cal.App.5th 499, 506, quotations and citations omitted.) STC concedes Dr. Reading performed a differential diagnosis. In forming his opinion, Dr. Reading considered Plaintiff’s medical condition, medication side effects, personality, substance use, and whether Plaintiff over-reported systems or had the propensity to report a self-serving version. (See Exhibit 3 to Ozan Decl., Ex. A, p. A075.) This is information specific to Plaintiff. Rather, STC’s real point of contention is that Dr. Reading did not perform a more exhaustive differential diagnosis to rule out other potential causes. That is the subject of cross-examination, not preclusion.

Kerry Bensinger

Judge of the Superior Court