AN APPEAL TO REASON

If an expert testimony would be required on an issue at trial, then an expert witness declaration is required to support or oppose a motion for summary judgment. (Kelley v. Trunk (1998) 66 Cal. App.4th 519, 523.) Establishing admissibility of an expert declaration is governed by similar rules that apply to expert testimony at trial. (Evidence Code section 720.) An expert’s opinion that is based on speculation, conjecture or conclusions will be rejected as inadmissible. (Evidence Code section 801(b); Mitchell v. United Nat. Ins. Co. (2005) 127 Cal.app.4th 457, 478.) An expert declaration should contain the following:

The expert’s qualifications or competency to testify.

What information the expert relied on in forming an opinion, including what documents or records were reviewed.

A statement that the expert’s opinion is based on matters that are reasonably relied upon by experts in forming their opinions.

The factual basis for the opinion. “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.” (Kelley v. Trunk, supra, at p. 524.) As noted in that case, the court or trier of fact may reject an expert’s opinion if the reasons given for it are unsound. The court concluded, “It is not our intent to disparage either the summary judgment procedure, or its appropriate use in malpractice cases. The procedure is a long-established and important part of our civil system. Summary judgment is appropriate in every case where the statutory standard is met, and the absence of material issues for trial established. However, that standard is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” (Id. at p. 524-525.) However, in the case of Hanson v. Grode (1999) 76 Cal.App.4th 601, the Second appellate District rejected Kelley’s approach, declining to require the expert declarant to set forth details in excruciating detail.” (Id. at p. 608, fn. 6.)

Supporting hospital records and testimony authenticating such records. In Garibay v. Hemmat (2008) 161 Cal.App.4th 735, the court concluded that an “expert’s opinion based on assumptions of fact without evidentiary support has no evidentiary value.” (Id. at p. 743.) As a result, the court rejected an expert declaration that did not include authenticated copies of the medical records.

Attorneys may wonder how much detail should be supplied. Too little and they run afoul of Kelley v. Trunk for failing to provide reasons for their conclusions. The expert declarant needs to avoid making conclusions, especially ones that may look like speculation or conjecture, which may occur if reasons aren’t supplied. On the other hand, what is the disadvantage of overloading the court with too much detail or reasons? It is better to err on the side of providing too much information, although more information gives your opponent more potential ammunition. Unless you know the court’s threshold on what it considers too much detail, it is better to make the expert declaration as complete as possible.