The testimony of an expert in support of a motion for summary judgment or for summary adjudication of issues is usually presented through a declaration under penalty of perjury. CCP §2015.5. Here are five do’s and don’ts for these expert declarations.
- DO include the expert’s qualifications. The expert should first state what type of expert he or she is, and give enough information about his or her background to qualify as an expert in that field. In Lyons v Colgate-Palmolive Co. (2017) 16 CA5th 463, 466, the expert’s declaration began with statement of his expert credentials, including specific experience, professional associations, and expert testimony in other cases. The published cases are fairly lenient in allowing experts to testify somewhat far afield in this context.
- DO set out the factual basis for the expert’s opinion. The expert should set out the facts of the case on which his or her opinion is based, state his or her opinions, and enumerate any additional bases for those opinions. The declaration must contain enough credible evidentiary support to substantiate the opinion given. Be careful with this, these recent cases found the expert declarations insufficient: Fernandez v Alexander (2019) 31 CA5th 770, 781–782 (physician didn’t explain or provide factual support for his causation opinion); Willhide-Michiulis v Mammoth Mt. Ski Area, LLC (2018) 25 CA5th 344, 355 (experts’ declarations only provided ultimate conclusions of law); and Doe v Good Samaritan Hosp. (2018) 23 CA5th 653, 664 (expert’s conclusory declaration didn’t specifically describe standard of care).
- DO make an adequate showing of support for the motion. The declaration of an expert offered in support of a motion for summary judgment must make the same showing on qualifications and expertise that would be required if the expert were testifying in person at trial. Even in cases in which expert testimony is required and the party against whom the motion is made hasn’t made a timely designation, the moving party must establish that none of the testimony of any expert for any other party who has been deposed will satisfy the defaulting party’s burden of proof. See Salasguevara v Wyeth Labs., Inc. (1990) 222 CA3d 379.
- DON’T rely on hearsay that consists of case-specific facts. Experts are allowed to base an opinion on hearsay that consists of generally accepted background information but not on case-specific facts. People v Sanchez (2016) 63 C4th 665, 677. So if the expert is relying on hearsay, the declaration must make clear that the information consists of generally accepted background information and not case-specific facts.
- DON’T just speculate. Always provide enough factual material to support the expert opinion to make it rise above speculation or a bare conclusion. The same admonition holds true if the expert will rely on a report or other documentary evidence that accompanies the motion. In structuring the declaration, imagine that the expert is testifying at trial and provide all the foundational elements (e.g., qualifications, evidentiary and factual support) that would otherwise be necessary to make the expert’s live testimony admissible. In responding to opposing expert declarations, consider whether there are grounds for striking particular paragraphs because they’re “based on assumptions of fact without evidentiary support or on speculative or conjectural factors.” See Sanchez v Kern Emergency Med. Transp. Corp. (2017) 8 CA5th 146, 155.
Get a sample declaration in support of a motion for summary judgment in CEB’s California Summary Judgment §14.10. And for guidance on all aspects of experts and the summary judgment process, turn to CEB’s California Expert Witness Guide, chap 16.
Other articles you may find useful:
- How to Get the Depo Testimony You Need for Summary Judgment
- Checklist: What to Do If Summary Judgment Is Denied
- 4 Things to Know About Exchanging Expert Witness Information
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