Presenting life care planner’s testimony while navigating Sanchez

It's a scenario that many trial lawyers dread while trying a catastrophic injury case. Your life care planner is on the stand, and she is prepared to present a comprehensive life care plan on behalf of your client. Just when she's about to get into the details of reports from your client's treating physicians, defense counsel shouts, "Objection! Hearsay." In light of People v. Sanchez, 63 Cal. 4th 665 (2016), what do you do?

Traditionally it was non-controversial for experts like your life care planner to recite hearsay using your client's treating physician's records as a basis for their opinions. But that is now no longer the case. Because of Sanchez, courts may allow experts to assume case-specific facts and provide opinions on those facts, but only if there already is independent competent evidence, say in the form of a witness with personal knowledge. Sanchez, 63 Cal. 4th at 676-77.

If there is no such competent evidence, and "[i]f an expert testifies to case-specific out-of-court statements to explain the basis for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." Id. at 684.

Of course, an expert may still rely upon hearsay in forming an opinion. Evidence Code Section 801 reads in part: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such opinion as is: ... (b) based on matter ... made known to the witness before the hearing, whether or not admissible, 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."

Per Evidence Code Section 803, the expert may generally state on direct the "matter" on which his or her opinion is based. This remains non-controversial because it is not admitted for the truth.

However, because of Sanchez, an expert on direct may not testify about case-specific facts upon which the expert relied, if such information is otherwise inadmissible hearsay. The life care planner can't say what the treating orthopedist's report showed or what the primary care physician noted in his or her report, unless those facts are already in evidence.

The best way to prepare is to lay a foundation in advance. If your life care planner needs to refer to your treating physician's reports, inevitably the defense will take your client's treating physicians' depositions. Take advantage of that. Be ready to conduct the direct of the treater as if you are at trial. You can then play the video at the time of trial and lay a foundation for your life care planner.

Review the notice of deposition. If the notice doesn't call for videotaping of testimony to present at the time of trial, be prepared to serve a notice you intend to videotape the deposition and play the video at trial pursuant to Code of Civil Procedure Section 2025.620.

Be prepared to argue what is case-specific and what is not. Fortunately, the Court of Appeal has shed some light on this issue. "If the hearsay relied upon by the expert is not case-specific, as we read Sanchez, the evidence is still admitted for its truth and is therefore hearsay, but we tolerate its admission due to the latitude we accord experts, as a matter of practicality, in explaining the basis for their opinions. Where general background hearsay is concerned, the expert may testify about it so long as it is reliable and of a type generally relied upon by experts in the field, again subject to the court's gatekeeping duty." People v. Stamps, 3 Cal. App. 5th 988, 996 (2016) (emphasis added). As noted in Sanchez, "an expert's background knowledge and experience is what distinguishes him from a lay witness, and ... testimony relating such background has never been subject to exclusion as hearsay, even though offered for its truth." Sanchez, 63 Cal. 4th at 685.

In People v. Veamatahau, 24 Cal. App. 5th 68 (2018), the jury convicted the defendant for possession of a controlled substance. In that case, a forensic laboratory criminalist testified as to information he found in a database on generally what pills containing certain chemicals look like. The defendant claimed the expert conveyed inadmissible, case-specific hearsay to the jury which was prejudicial. Though such information was clearly hearsay, "it was the type of background information which has always been admissible under state evidentiary law." Id. at 75. As such, the information from the database that pills with certain markings contain a certain chemical was background information that the expert could convey to the jury.

Your client's medical records, employment records, and any documents generated because of your client are most certainly case-specific. Information on costs for certain items in national or regional healthcare databases, etc. are not. They exist separate and apart from your lawsuit. Life care planners regularly refer to geographically specific pricing lists and quotes for health care costs like certain procedures, medical equipment, etc. Argue that such information is not case-specific hearsay.

Keep in mind the exceptions to hearsay especially as to document productions. Remember business records are admissible under Evidence Code Sections 1271 and 1272 to prove the occurrence or existence of an act, condition or event recorded in the record or to prove the nonoccurrence or nonexistence of an act, condition or event not recorded in the record. As for third party productions, check the declarations that accompany third party business productions to see they satisfy not only the authenticity requirement, but also the business record exception to the hearsay rule. Make sure you have a proper declaration and/or stipulation from opposing counsel or you may be forced to call the records custodian at the time of trial.

Sometimes documents like medical records contain multiple levels of hearsay. For example, a medical record containing the statement of your client has two levels of hearsay: (1) The medical report is one layer; and (2) The statement of your client is another. Be prepared to state an exception for each level of hearsay e.g. the medical record can qualify for a business records exception (Evid. Code Section 1270), the hearsay statement of your client could qualify as a statement of his/her then physical and mental state (Evid. Code Section 1250(a)).

Lastly, remember that although an expert cannot, on direct examination, reveal the contents of reports or opinions by say, treating physicians (unless already admissible), he/she can be cross-examined on those opinions or reports. See People v. Campos, 32 Cal. App. 4th 304, 308 (1995). "Procedurally, if an expert does rely in part upon the opinions of others, the expert may be cross-examined as to the content of those opinions." Mosesian v. Pennwalt Corp., 191 Cal. App. 3d 851, 864 (1987) disapproved by People v. Ault, 33 Cal. 4th 1250 (2004), on other grounds.

Also, keep in mind your expert can be cross-examined in regard "to the content or tenor of any scientific, technical, or professional test, treatise, journal, or similar publication" if any of the following occurs: "(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion[;] (2) The publication has been admitted in evidence[; and] (3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice." Evid. Code Section 721(b).

As a trial lawyer, keep in mind you should no longer rely on providing hearsay to the jury through your life care planner or any expert on direct. Laying a foundation well in advance or being prepared to argue exceptions to hearsay is key to ensuring your life care planner will be able to properly testify as to her opinions.