Judge: Rafael A. Ongkeko, Case: 20STCV04292, Date: 2022-07-25 Tentative Ruling
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Case Number: 20STCV04292 Hearing Date: July 25, 2022 Dept: D
Berkstein v.
Flam (20STCV04292)
P. MIL
#19: Tentative for Monday, 7/25/22:
Defendant’s written
opposition argues Zimmermann’s opinions are relevant to damages. This cannot be accurate by any measure. The same opposition does not attempt to address
any of the points raised by the MIL.
Defendant then argued orally that Zimmermann would provide rebuttal
opinions to those offered by Plaintiff’s experts in accident reconstruction and
human factors. But Zimmermann is not an
accident reconstruction expert. Of
course, she may provide opinions in her field, where otherwise appropriate, as
discussed below.
Zimmermann’s
five opinions from Exhibit 14 of her deposition:
1.
Opinion #1 (a driver’s expectations and
attentional set): DENY. There is
sufficient foundation for this opinion and it is not case-specific. However, this ruling is without prejudice to
an objection under Sanchez if otherwise appropriate.
2.
Opinion #2:
GRANT. Exclude as irrelevant, and
if relevant, its application to this case will cause jury confusion and be more
prejudicial than probative under 352.
Defendant Flam apparently testified (and will testify) that she did look
left and right before proceeding forward on the green, something “typical” drivers
purportedly do not engage in in similar situations. Thus, such typical behavior (not scanning) has
nothing to do with Flam’s own behavior and will cause jury confusion and an
undue consumption of time.
3.
Opinion #3:
GRANT under 352. This is merely
cumulative and duplicative of the opinions that Fugger, the defense accident
reconstruction expert, will offer. Undue
consumption of trial time.
4.
Opinion #4: DENY. There is sufficient foundation
for this opinion and it is not case-specific.
However, this ruling is without prejudice to an objection under Sanchez
if otherwise appropriate.
5.
Opinion #5: GRANT under 352. This is merely cumulative and duplicative of
the opinions that Fugger, the defense accident reconstruction expert, will
offer. Undue consumption of trial time.
6.
Additional opinion per Plaintiff’s supplemental
brief: Not typical pedestrian behavior “to
enter an intersection when their pedestrian light is red (or flashing red).” GRANT.
Lacks foundation. No studies cited.
Based on common sense only, and therefore not proper subject of expert
opinion and will not assist the jury.
MIL #20:
TENTATIVE RULING: DENY as to
causation. Plaintiff opened the door
(and has designated those portions) and D’s cited portions are appropriate to
show his entire opinion in context. GRANT
as to need for future surgery. He is a
treating, not retained expert. Doctor
himself says it’s speculation and can’t say with rz.med.prob. However, this
ruling is contingent on whether Plaintiff opens the door by relying on Dr.
Johnson’s testimony on this subject.