Preview
I SCOTT R. MONTGOMERY, ESQ., SBN 278060
KAITLYN D. WRIGHT, ESQ., SBN 343722
2 NATASHA E. BERG, ESQ., SBN 349513
ABBEY, WEITZENBERG, WARREN & EMERY, P.C.
3 100 Stony Point Road, Suite 200, Santa Rosa, CA 95401
Telephone: 707-542-5050/Facsimile: 707-542-2589
4
Johann Hall, Esq. SBN 270753
5 The Law Office of Johann Hall
703 2" Street, Suite 353, Santa Rosa, CA 95404
6 Telephone; 707-360-8717 / Facsimile: 707-921-7378
7 Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SONOMA
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C.F. BY AND THROUGH HER GUARDIAN Case No. SCV264540
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AND GUARDIAN AD LITEM SOLOMON
A 12 FARR; E.F. BY AND THROUGH HER PLAINTIFFS'OTION IN LIMINE TO
GUARDIAN AND GUARDIAN AD LITEM EXCLUDE DEFENDANT'S EXPERT,
a 13 SOLOMON FARR; S.F. BY AND THROUGH DR. HARVEY LERCHIN M.D., FROM
o v .oE HIS GUARDIAN AND GUARDIAN AD TESTIFYING AT TRIAL [PLAINTIFF'S
14 LITEM SOLOMON FARR, MIL 5 of 9]
V 15 Plaintiffs, Action Filed: May 31, 2019
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o' Trial Date: September 15, 2023
16 V. Trial Dept: 16
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17 MARK ZAPATA MARTINEZ; MARTHA
MARTINEZ; ALTERNATIVE FAMILY
18 SERVICES, INC.; COUNTY OF SONOMA;
STATE OF CALIFORNIA AND DOES 3-30,
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Defendants.
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21 I. INTRODUCTION
22 Plaintiffs C.F., E.F,, and S.F., minors (hereinafter "Plaintiffs,** collectively), hereby move
23 this Court in limine for an order to exclude the opinions of Defendant AFS'hereinafter "AFS")
24 damages expert, Dr. Harvey Lcrchin. Dr. Lerchin's opinions regarding Plaintiffs'ental health /
25 psychiatric issues are inadmissible and should be excluded pursuant to Evidence Code section
26 801 because Dr. Lerchin is unqualified and his opinions are not based on the facts of this case.
27 Pursuant to Evidence Code section 801, Plaintiffs request that this Court exclude Dr.
28 Lerchin's unreliable and unfounded opinions. Alternatively, prior to Dr. Lerchin testifying,
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PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCIIIN FROM TESTIFYING AT TRIAL
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I Plaintiffs request a hearing, pursuant to Evidence Code section 402, to be held to determine
2 whether Dr. Lerchin's damages opinions have the adequate foundation to satisfy the requirements
3 of Evidence Code section 801 and California case law such as Sargon Enterprises, Inc. v.
4 University qfS. Cal. (2012) 55 Cal. 4th 747, 770 and its predecessors.
5 This is an action for Childhood Sexual Abuse and Sexual Battety, in which Plaintiffs C.F.,
6 E.F., and S.F., minors (hereinafter "Plaintiffs," collectively), suffered and will continue to suffer
7 severe and permanent damages including, but not limited to, humiliation, mental, emotional, and
8 physical distress, anxiety, and nervousness.
9 Defendant, MARK ZAPATA MARTINEZ (hereinafter "Mr. Martinez" ), sexually abused
10 sisters E.F. and C.F. from at least April I, 2018, when they were two years old and six years old,
11 respectively, until June 25, 2018, when they were three years old and seven years old,
12 respectively. The abuse occurred in Mr. Martinez*s home, beginning almost immediately after
13 Plaintiffs were placed under his care by Defendant, ALTERNATIVE FAMILY SERVICES, INC.
14 (hereinafter "AFS").
15 Mr. Martinez was arrested on November 26, 2018, and the Sonoma County District
16 Attorney subsequently charged Mr. Martinez with 11 felony counts of child molestation and
17 sexual assault under Penal Code III) 288(a), 288.7(b), and 288(b)(1), and with violent felony
18 enhancements under IjIi 667.5(c), 1192.7(c), and with child sexual abuse enhancements under Ijlj
19 667.61(j)(2) and (e), 801.1(a), and 799(b) in Sonoma County Superior Court under Case No.
20 SCR-720717-1 (hereinafter the "Criminal Action" ).
21 On March 6, 2020, Mr. Martinez entered into a plea agreement, pleading "no contest" to 2
22 felony counts of child molestation and sexual assault, in violation of California Penal Code IjIj
23 288(a) and 288.7(b), in exchange for the dismissal of the remaining charges and enhancements.
24 Mr. Martinez pled "no contest" to one felony count of child molestation and sexual assault
25 committed upon C.F. from April I, 2018, to June 25, 2018, for the oral copulation with a child
26 who is 10 years of age or younger, in violation of California Penal Code Ij 288.7(b) (Count I).
27 Mr. Mattinez pled "no contest" to one felony count of child molestation and sexual assault
28 committed upon E.F. from April I, 2018, to June 25„2018, for committing a lewd act upon a
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PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYING AT TRIAL
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1 child under the age of 14, in violation of California Penal Code 5 288(a) (Count Xl).
2 On May 11, 2023, Mr. Martinez was sentenced 21 years to life for 2 felony counts of child
3 molestation and sexual assault committed upon E.F. and C.F., in violation of California Penal
4 Code tjtj 288(a) and 288.7(b), respectively.
5 Notwithstanding the ultimate felony conviction and sentence that should preclude
6 Defendants from introducing evidence challenging the facts essential to the elements of Plaintiffs'
claims pursuant to that Evidence Code tjtt 1300 and 452.5 (b), Plaintiffs are apprehensive that
8 Defendants will attempt to introduce irrelevant and prejudicial matters which are the scope of the
9 instant motion.
10 Once a jury hears improper evidence, the Court cannot "un-ring the bell." Cal. Evid. Code
q6 11 tj 350 provides that no evidence is admissible except relevant evidence. Cal. Evid. Code lj 210
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12 provides that relevant evidence is evidence that "is of consequence to the determination of the
a 13 action." Cal. Evid. Code tj 352 provides that the Court, in its discretion, may exclude evidence if
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e 6I 14 the probative value is substantially outweighed by the probability that the admission will create
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A 15 substantial danger of undue prejudice, confusion of the issues, or misleading the jury.
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16 For the sake of brevity and judicial efficiency, Plaintiffs make the following consolidated
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17 motion in limine for the various topics listed herein. This motion is based upon Cal. Evid. Code
18 tjlj 210, 350, 352; 702; 1200; et seq., and the authorities herein referenced. This motion is
19 supported by the documentation filed contemporaneously with the present motion, the papers and
20 pleadings filed with this Court, and upon such other and further evidence, documents, and
21 arguments of counsel at the hearing of the motion,
22 This motion is based on, inter alia, that evidence that is speculative, entirely lacking in
23 evidentiary support, and/or without probative value is drastically outweighed by its prejudicial
24 effect and must therefore be precluded at trial.
25 II. RELIEF REOUESTKD IN LIMINE
26 Via this motion in limine, Plaintiffs seek an order from this Court excluding Dr. Harvey
27 Lerchin:
28 A. From testifying at trial in this case as he is not qualified to render opinions as he is
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not board certified in child psychiatry and has not even seen a child patient in past
5 years.
3 FL From testifying at trial in case based on absence of medical probability, generally,
for his opinions in this case.
5 C. Exclude Dr. Lerchin from opining at trial regarding EF and SF due to absence of
medical probability for his opinions as to them specifically.
7 D. Exclude Dr. Lerchin from providing opinions on future treatment needs of CF, EF,
and SF based on him stating he did not have opinions on a treatment plan.
9 E. Exclude Dr. Lerchin from claiming he was blocked from completing anything by
10 counsel/Court.
qo R 11 F. Exclude Dr. Lerchin from commenting on CAPS-5 testing completed by Dr.
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N 12 Ponton as he is not qualified in this testing.
&8 IX 5 13 G. Exclude Dr. Lerchin from claiming, generally, there is a "history of neglect" or
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14 "prior trauma" of the children without foundationally establishing what he is
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15 specifically referring to and the evidence of same.
i" 16 IL Exclude Dr. Lerchin from referencing that the Farr children could receive free
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17 mental health treatment, Medicaid, or similar as speculative and a violation of
collateral source rule.
19 I. Exclude Dr. Lerchin from claiming SF lied about abuse by someone else at CASA.
20 Plaintiffs ask this Court to preclude the above at all stages of trial and, in particular,
21 during any proceedings before the jury (including voir dire), any and all evidence, references to
22 evidence, testimony, or arguments with respect to the above. Additionally, Plaintiffs request that
23 Defendant be ordered not to ask any questions of any witnesses regarding or suggesting the
24 existence of such evidence, that Defendant be ordered to instruct its witnesses not to mention
25 such evidence, and that Defendant be ordered not to mention or suggest to the jury that this
26 motion was brought and granted.
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I III. ARGUMENT
2 Courts are required to assure that the foundational predicates for admission of any expert
3 testimony are met, such that it would assist the trier of fact in evaluating the issues to be decided.
4 (Sargon Enterprises, supra, 55 Cal.4th 747, 770, 149 Cal.Rptr.3d 614, 288 P.3d 1237; II 802;
5 Jennings, supra, 114 Cal.App.4th 1108, 1117, 8 Cal.Rptr.3d 363; Sargon Enterprises, supra, at pp.
6 771-772, 149 Cal.Rptr.3d 614, 288 P.3d 1237 [inquiry includes whether opinion is based on
7 unsupported reasons or is speculative].)
A. DR. LERCHIN IS NOT OUALIFIED TO TESTIFY AS AN EXPFRT
WITNESS
10 California Evidence Code states that:
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If a witness is testifying as an expert, his testimony is limited to such an
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g& opinion as is: ... (b) Based on a matter (including his special knowledge,
u 12 skill, experience, training and education) perceived by a person known to
iI P the witness or made known to him at or before the hearing, whether or not
Z 13 admissible, that is of a type that reasonably may be relied upon by an
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expert in forming an opinion upon which the subject to which his
0o 14 testimony relates...
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15 The witness is qualified to testify as to matters calling for expert opinion is his peculiar
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16 skill, training, or experience enable him to form opinions. People v. Davis (1965) 62 Cal.2d 791,
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17 44 Cal.Rptr. 454. The test for qualification of an expert witness is whether he discloses sufficient
18 knowledge of the subject to cntitlc his opinions to go to the jury. Mater v. Hommel (1931) 213
19 Cal. 677, 3 P.2d 554. See also, Pearce v. Linde (1952) 113 Cal.App.2d 627; Cooper v. Board of
20 Medical Examiners (1975) 49 Cal.App.3d 931.
21 In this case, Dr. Lerchin lacks the appropriate expert qualifications to testify as to the
22 Plaintiffs'amages. In the past 5 years, Dr. Lerchin has not treated a child, defined as younger
23 than high school. (Exhibit "A," Lerchin deposition, 92:3-2.) While Dr. Lerchin has been board
24 certified by the American Board of Psychiatry and Neurology since 1980, he has never been
25 board certified in either child or adolescent psychiatry. (Exhibit A, 4:1-3.) Dr. Lerchin does not
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have the requisite special knowledge, skill, or experience to testify regarding minor
current mental health issues, causation, reasonableness of past treatment and assessment any
future mental health care needs of Plaintiffs. Additionally, Dr. Lerchin's opinions should be
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1 excluded because they are not supported by the facts of this case.
2 In addition, by his own admission, Dr. Lerchin:
~ Lacks the appropriate knowledge, experience, and skill necessary to provide
opinions with reasonable medical probability.
5 ~ Claims to be limited by Judge Patrick Broderick's Court Order, dated June 27,
2022, and "would have preferred and would prefer to have been in a position to be
more confident in my medical opinions." (16:14-16).
~ Lacks the requisite level of knowledge and experience to testify as to long-term
impacts of childhood sexual abuse — which are one of the key components to this
10 case.
qS ~ Has not reviewed any meta-type studies on the long-term impacts of childhood
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x 12 sexual abuse for over 20 years "and not for the purposes of this case." (78:11-18).
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13 ~ Is not trained or qualified to administer CAPS-5 testing which is used to measure
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14 posttraumatic stress disorder diagnosis and severity in children ages 7 and above.
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15 As further demonstrated herein, Dr. Lerchin does not have the actual capacity to
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16 understand the very evidence he was retained to analyze.
17 Evidence Code II 803 states that "the court may, and upon objection shall,
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18 exclude testimony in the form of an opinion that is based in whole or in significant part on a
19 matter that is not a proper basis for such opinion." Here, Dr. Lerchin relied on speculation
20 regarding Plaintiffs* prior trauma and discounted the criminal court's judgment, that under a
21 higher burden of proof than alleged in this civil case, both E.F. and C.F. were sexually abused,
22 In sum, this case involves the injuries three young children sustained as a result of sexual
23 molestation and the long-term impact they will thereby suffer. Dr. Lerchin has no current or
24 relevant experience to opine on such issues, and therefore lacks sufficient credentials,
25 qualifications, and expertise io opine on Plaintiffs'ental health issues in this matter. His
26 testimony cannot be permitted into evidence by this Court.
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B. DR. LERCHIN'S OPINIONS ARE NOT BASED ON A REASONABLE
DEGREE OF MEDICAL PROBABILITY
3 Defense experts are not entitled to testify about possibilities or other unsupported possible
causes for Plaintiffs'onditions. "The law is well settled that in a personal injury action causation
must be proven within a reasonable medical probability based upon competent expert testimony,
Mere possibility alone is insufficient to establish a prima facie case." (Lattimore v. Dickey III
7 (2015) 239 Cal.App.4th 959 [A "chance" or "possibility" do not amount to reasonable medical
g probability.], quoting Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.
9 By his own admission, Dr. Lerchin lacked the appropriate knowledge, experience, and
10 skill necessary to provide opinions with reasonable medical probability. In his deposition, Dr.
q Lerchin testified that he was limited by Judge Patrick Broderick's Court Order, dated June 27,
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2022, and "would have preferred and would prefer to have been in a position to be more
7EQ 13 confident in my medical opinions." (16:14-16).
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14 When Dr. Lerchin was asked generally whether he was prepared to offer opinions with
reasonable medical probability regarding the Plaintiffs, he testified as follows:
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e 16 So my question is this, and it's a little more specific. In this case,
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are you prepared to offer opinions with reasonable medical
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18 enough information at this point?
I had enough information to give my medical impressions. I hesitate
19 to call that confirmed medical opinion with probability. So I'm
caught uncomfortably and unusually able to give only modified or
20 qualified medical opinion, and I want that to be very clear.
21 Given that Dr. Lerchin admits that unable to prove medical opinions with a reasonable
22 degree of medical probability regarding the Plaintiffs, generally, he should be precluded from
23 offering any of his opinions at trial.
24 C. DR. LERCHIN'S OPINIONS REGARDING E.F. AND S.F. ARE NOT
BASED ON A REASONABLE DEGREE OF MEDICAL PROBABILITY
25
26 Dr. Lerchin should be excluded from testifying at trial regarding injuries E.F, and S.F.
27 sustained as a result of the sexual abuse at issue in this case. In his deposition, Dr. Lerchin
2g testified that he does not know whether EF or SF suffered from PTSD as a result of the sexual
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PLAINTIFFS'IL TO EXCLUDE DEFENDANT1S EXPERT LERCHIN FROM TESTIFYING AT TRIAL
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I abuse:
So to be clear, and just close the loop, it's your opinion, with
medical probability, that [C.F.] does suffer from PTSD as a result
of the sexual abuse at the Martinez foster home. But with respect to
[E.F.] and [S.F.], you don't know if they do or not. Correct?
Correct.
5 As Dr. Lerchin lacks the appropriate knowledge, experience, and skill necessary to
provide opinions with reasonable medical probability as io the injuries E.F. and S.F. sustained as
a result of the sexual abuse in foster care, he must be excluded from testifying on the matter at
8 trial. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1385.)
D. DR. LERCHIN OPINIONS REGARDING PLAINTIFFS'UTURE
MEDICAL NEEDS HAVE NO EVIDENTIARY SUPPORT
10
11 As the Court of Appeal explained in Jennings v. Paiomar Pomerado Health Systems, Inc.
(2003) 114 Cal.App.4th 1108:
13 [A]n expert's opinion based on assumptions of fact without evidentiary
support, or on speculative or conjectural factors, has no evidentiary value
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and may be excluded from evidence. Similarly, when an expert's opinion is
15 purely conclusory because unaccompanied by a reasoned explanation
connecting the factual predicates to the ultimate conclusion, that opinion
has no evidentiary value because an expert opinion is worth no more than
the reasons upon which it rests.
17
Exclusion of expert opinions that rest on guess, surmise or conjecture is an
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inherent corollary to the foundationaI predicate for admission of the expert
19 testimony: will the testimony assist the trier of fact to evaluate the issues it
must decide'? Therefore, an expert's opinion that something could be true if
20 certain assumed facts are true, without any foundation for concluding those
assumed facts exist in the case before the jury, does not provide assistance
21 to the jute because the jury is charged with determining what occurred in
the case before it, not hypothetical possibilities. Similarly, an expert'
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conclusory opinion that something did occur, when unaccompanied by a
23 reasoned explanation illuminating how the expert employed his or her
superior knowledge and training to connect the facts with the ultimate
24 conclusion, does not assist the jury. In this latter circumstance, the jury
remains unenlightened in how or why the facts could support the
25 conclusion urged by the expert, and therefore the jury remains unequipped
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with the tools to decide whether it is more probable than not that the facts
do support the conclusion urged by the expert. An expert who gives only a
27 conclusory opinion does not assist the jury to determine what occurred, but
instead supplants the jury by declaring what occurred.
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1 (/d. at 1117-18 [internal citations and quotation marks omitted, emphasis in the original].)
2 While Dr. Lerchin disagrees with Dr. Ponton's treatment plan, he did not provide a
3 treatment plan of his own, did not make independent efforts to quantify Plaintiffs'uture medical
4 needs, or explain how Dr. Ponton's treatment plan is excessive.
5 Instead, Dr. Lerchin testified:
Q: With respect to CF Farr, what is your treatment plan for her during her
lifetime to treat her PTSD as a result of sexual abuse in the Martinez foster
home? If you have one.
A. Yeah. Well, the short answer is I don't have one.
Q. Okay. With respect to EF Farr and Solomon Farr, given that you don'
know or have an opinion if they suffer from PTSD, would it be fair to say
you also don't have an opinion on a treatment plan for them in the future
for their lifetime?
10 A. I do not have a firm opinion with regard to treatment of either of those
two youngsters, again, for the reasons stated previously.
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t4 As Dr. Lerchin's opinions are unrelated to an interpretation of Plaintiffs'edical history
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and the facts of this case, he is not competent(qualified to render opinions about
medical diagnoses, prognoses, and corresponding treatment plans. (Ibid.) Further, as Dr. Lerchin
admitted that he did not have a treatment plan for the Plaintiffs and his opinions are wholly
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conclusory and without evidentiary support, he must be excluded from testifying on the matter at
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trial. (/bid.)
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E. NEITHER PLAINTIFFS'OUNSEL NOR THIS COURT LIMITED DR.
18 LERCHIN FROM PROVIDING A COMPETENT EXPERT OPINION
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Plaintiffs'0 Dr. Lerchin's evaluation of the Plaintiffs was not limited by the Court or
attorneys. Instead, it was Dr. Lerchin's own requests, submitted in his own declaration to this
Court, that would serve as the only possible limitation on the scope of his examination, report,
22 and testimony.
23 Furthermore, Dr. Lerchin testified that defense counsel did not request his opinions on
24 certain matters, i.e., Plaintiffs'reatment plans.
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Plaintiffs'6 Simply put, Dr. Lerchin was not limited by any action taken by this Court or
counsel. Defendants cannot use their counsel's or expert's lack of diligence as a shield in expert
discovery and then a sword at trial.
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1PLA IN TIFF'S M IL 5 of 91
F. DR. LERCHIN IS NOT OUALIFIED TO RENDER AN OPINION ON
CAPS-5 TESTING
3 A person who qualifies as an expert may give testimony in the form of an opinion if the
4 subject matter of that opinion is sufficiently beyond common experience that the opinion of [the]
expert would assist the trier of fact." Jennings v. Palomar Pomerado Health Systems, Inc.,
(2003), 114 Cal.App. 4th 1108, 1116 (quoting Evid C. I'I
801, subd. (a)). However, "even when
the witness qualifies as an expert, he or she does not possess a carte blanche to express any
8 opinion the area of expertise. Id. at 1117 (citing Suminers v. A.L Gilbert Co (1999), 69 Cal.App.
4th 1155). In fact, California courts will not hesitate to exclude or limit expert testimony where an
10 expert's opinions rest on nothing more than mere guess, surmise or conjecture. See e.g. Pacific
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Gas diglectric Co v. Zuckerman (1978), 189 Cal.App. 3d 1113 (excluding expert's opinion based
x on assumptions of fact without evidentiary support); Lockheed Martin Corp, v. 4 Superior Court
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(2003), 29 Cal. 4th 1096) (precluding expert testimony based on speculative or conjectural
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14 factors); McGonnell v. fraiser Gypsum Co. (2002), 98 Cal.App. 4th 379 (excluding expert
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testimony which has no evidentiary value).
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o In the matter before the Court, Dr. Lerchin may attempt to testify to matters involving
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17 CAPS-5 testing which he has admitted is outside his area of expertise. As such, Dr. Lerchin must
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18 be precluded from testifying on all matters relating to CAPS-5 testing. (Hyatt v. Sierra Boat Co.
19 (1978) 79 Cal.App.3d 325, 337-39 (exclusion of expert testimony on matters where the expected
20 testimony lacked proper foundation; merely speculative).)
21 G. DR. LERCHIN CANNOT PROVIDE A COMPETENT OPINION
REGARDING ANY "PRIOR TRAUMA" OR "HISTORY OF NEGLECT"
22
23 Expert opinion is only admissible if it will help the jury to understand the issues to be
24 decided and only if it is based on a proper foundation. Evid. Code I'It] 801-803. In California,
expert opinions are only as good as the information and analysis on which they are based; and if a
quality foundation is missing, the opinions must be excluded. Bozzi v. Nordstrom, Inc. (2010) 186
27 Cal. App. 4th 755, 762;
28 The trial court may exclude expert opinion testimony that is "(I) based on matter of a type
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1 on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on
2 which the expert relies, or (3) speculative." Sargon Enterprises, Inc. v. University of Sou&he& n
3 Cal. (2012) 55 Cal.4th 747, 771-72.
4 Courts must be cautious in excluding expert testimony, but the court's focus "must be on
5 principles and methodology, not on the conclusions that they generate.'* Daubert v. Mer& ell Dow
6 Phar&naceuticals, Inc. (1993) 509 U.S, 579, 595. A court has the duty of determining whether
7 there is a reasonable basis for an opinion or whether that opinion is "based on a leap of'logic or
8 conjecture." Sargon Enterprises, Inc. v, University of Sou&I&em Cal. 55 Cal.4th, at 632).
9 "[W]hen an expert's opinion is purely conclusory because unaccompanied by a reasoned
10 explanation connecting the factual predicates to the ultimate conclusion, that opinion has no
eo 11 evidentiary value because an expert opinion is worth no more than the reasons upon which it
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o u 12 rests." Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.
ax=' 13 "And, also, 'A finding of fact must be an inference drawn from evidence rather than on a
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& o 14 mere speculation as to probabilities without evidence. A majority of chances never can suffice
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15 alone to establish a proposition of fact, since the slightest real evidence would outweigh all
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4 16 contrary probabilities.'23 Cor.Jur., tj 1750, p. 18.)" (Estate of Gutierrez (1961) 189 Cal.App.2d
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17 165, 174.)
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18 This case is about a foster agency's duty, and utter failure, to place three young children in
19 a safe home. Instead, AFS placed two-year-old E.F., five-year-old S.F., and six-year-old C.F., in
20 a home with a sexual predator who molested them over the ensuing months.
21 Dr. Lerchin must be excluded from claiming, generally, that Plaintiffs suffered from a
22 "history of neglect*'r "prior trauma" as he failed to establish any cognizable foundation as to the
23 existence of any "trauma" or "neglect" and must therefore be precluded from testifying on the
24 matter. Simply put, there is no evidence that Plaintiffs have suffered any prior or other trauma
25 that connect to their injuries presently alleged.
26 Even if Dr. Lerchin properly relied on evidence of prior trauma, it may be excluded as too
27 remote to be relevant to the issues to be considered by the jury in determining whether AFS acted
28 negligently towards Plaintiffs or whether AFS shares responsibility for the sexual abuse they
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1PLAINTIFF'S MIL 5 of 91
1 suffered. (Larson v. Solbakken (1963) 221 Cal.App.2d 410,421.)
2 The only motive Defendants possibly have in introducing such evidence is to lead the jury
3 to believe that Plaintiffs suffered trauma before the sexual abuse, and their injuries, therefore, are
4 not a result of being sexually molested. The introduction of this evidence would have the result of
5 drawing the jury's attention away from the true facts and suggesting additional ones. The jury
6 would lose sight of the real issues in this case and be preoccupied with the irrelevant evidence
7 presented. The jury would be asked to conflate sexual trauma with an contrived story. This
8 evidence is of such a nature that its probative value is substantially outweighed by the probability
9 that its admission would create a substantial danger of undue prejudice and confuse and lead the
10 jury to erroneous findings of causation of injuries so as to warrant its exclusion. (Evidence Code,
11 tj 352.) It is, therefore, requested that the Court order its exclusion.
12 H. DR. LERCHIN IS PROHIBITED FROM SUGGESTING THAT
PLAINTIFFS COULD HAVE, OR SHOULD HAVE. OBTAINED FREE
13 AND/OR AFFORDABLE MENTAL HEALTH CARE
14 It is anticipated that Defendants will attempt to dictate Plaintiffs'edical needs
15 retrospectively and argue that they should have treated through Medi-Cal, Medicaid, or other
16 affordable providers that Plaintiffs, based on Dr. Lerchin*s deposition testimony.
17 However, any mention of insurance at the time of trial is irrelevant and strictly prohibited.
18 CACI Jury Instructions are directly on point: "You must not consider whether any of the parties
19 in this case has insurance. The presence or absence of insurance is totally irrelevant. You must
20 decide this case based only on the law and the evidence.'* (CACI No. 105).
21 Moreover, Plaintiffs have a Supreme-Court-recognized substantive-due-process right to
22 make medical treatment choices. (See 8. Jessie Hill, The Constitutional Right to Make Medical
23 Treatment Decisions: 2 Tale of Two Doctrines (2007) 86 TEX. L. REV. 277, 329 [arguing there
24 is a Constitutional right to make autonomous medical treatment decisions]).
25 Furthermore, the rule of mitigation of damages has no application where its effect would
26 be to require the innocent party to sacrifice and surrender important and valuable rights. Seaboard
27 Music Co. v. Germano (1972) 24 Cal.App.3d 618, 623.
28 Even if Plaintiffs could have qualified for free or affordable mental health care, it would
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[PLAINTIFF'S MIL 5 of 91
1 be completely speculative for the defense to argue now what treatment would have occurred and
2 what damages may have been mitigated. Therefore, any suggestion that Plaintiffs could have
3 sought free or affordable mental health care must be excluded. Pebley v. Santa Clara Organics,
4 LLC (2018) 22 Cal.App.5th 1266. "We therefore reject defendants'rgument that [plaintiffj
5 failed to mitigate his damages. A tortfeasor cannot force a plaintiff to use his or her insurance to
6 obtain medical treatment for injuries caused by the tortfeasor. That choice belongs to the
7 plaintiff." (Id. at 1277-1278(emphasis added).)
8 Lastly, and most importantly, Dr. Lerchin testified that he did not know whether E,F, or
9 S.F. suffered from PTSD as a result of the sexual abuse they suffered in the Martinez home, and
10 did not have a "firm opinion with regard to treatment of either."
11 Although Dr. Lerchin admitted that C.F. did suffer from PTSD as a result of the sexual
12 abuse suffered in the Martinez home, he did not have a treatment plan for C.F.
13
15
Plaintiffs'4
As discussed above, Dr. Lerchin's opinions are unrelated to an interpretation of
medical history and the facts of this case, he is not competent/qualified to render opinions about
Plaintiffs'edical diagnoses, prognoses, and future medical care.
16 It would therefore be simply incredulous for Dr. Lerchin to make any reference that
17 Plaintiffs did not seek medical treatment from any resources available to them in the past as he is
18 unable to form a competent opinion on their diagnoses, prognoses, or future medical needs.
19 Accordingly, Dr. Lerchin should be precluded from offering testimony regarding or
20 relating to the availability of health care.
21 I. DR. LERCHIN MAY NOT SUGGEST THAT S.F. OR HIS FATHER MADE A
FALSE ALLEGATION OF ABUSE
22
23 Dr. Lerchin was not retained by the defense to opine on the credibility/reliability of a
24 child's sexual abuse allegation. However, as defense counsel questioned Dr. Lerchin whether
25 S.F. "falsely accused somebody of abusing him while in the care of another facility," it is
26 anticipated Dr. Lerchin will attempt to comment on this at trial.
27 As an initial matter, the reference pertains to a therapy note from S.F.'s father's therapy
28 session: "[father] had to talk to [S.F.j who lied about the Casa lady "whooping him." This record
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PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYING AT TRIAL
[PLAINTIFF'S MIL 5 of 91
1 is inadmissible as it would violate Plaintiffs* father's constitutional right to privacy.
2 Moreover, Dr. Lerchin was not retained as an expert to evaluate the credibility/reliability
3 of child sexual abuse allegations, and as such he is not qualified to testify on the matter as it
4 would call for expert opinion outside his peculiar skill, training, or experience enable him to form
5 opinions. People v. Davis (1965) 62 Cal.2d 791, 44 Cal.Rptr. 454.
6 Furthermore, Dr. Lerchin does not provide his opinion as to whether S.F. or his father
7 made any false allegations or formed false memories.
8 Lastly, to be an appropriate impeachment witness, the witness must have personal
9 knowledge of the honesty or veracity of the person whom the witness is supposed to testify. See
10 California Evidence (tj702.) To the extent that Dr. Lerchin's testimony is offered in order to
11 impeach Plaintiffs'ather, the Court should exclude it because Dr. Lerchin does not have first-
12 hand knowledge and is therefore not qualified to offer such testimony.
13 Dr. Lerchin did not and indeed cannot testify about the veracity or credibility (or lack
14 thereof) of S.F. or his father and any attempt to do so at trial must be precluded.
15 IV. CONCLUSION
16 For the foregoing reasons, Plaintiff respectfully requests that this Court issue a pre-trial
17 order excluding at all stages of trial and, in particular, during any proceedings before the jury
18 (including voir dire) any and all evidence, references to evidence, testimony, or arguments as
19 outlined herein.
Dated: September 7, 2023 ABBEY', WEITZE , WARREN 6'r EMERY
21
22 ., iski
S o'ft R'.
(
Montgombiy, Esq
23 aitlyn D. Wright, Esq.
Natasha E. Berg, Esq.
24 Attorneys lor Plaintiffs
25
26
27
28
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PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCIIIN FROM TESTIFYING AT TRIAL
1PLAINTIFF'S iVIIL 5 of 91
Preview
I SCOTT R. MONTGOMERY, ESQ., SBN 278060 KAITLYN D. WRIGHT, ESQ., SBN 343722 2 NATASHA E. BERG, ESQ., SBN 349513 ABBEY, WEITZENBERG, WARREN & EMERY, P.C. 3 100 Stony Point Road, Suite 200, Santa Rosa, CA 95401 Telephone: 707-542-5050/Facsimile: 707-542-2589 4 Johann Hall, Esq. SBN 270753 5 The Law Office of Johann Hall 703 2" Street, Suite 353, Santa Rosa, CA 95404 6 Telephone; 707-360-8717 / Facsimile: 707-921-7378 7 Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SONOMA 10 qa 0 C.F. BY AND THROUGH HER GUARDIAN Case No. SCV264540 c C AND GUARDIAN AD LITEM SOLOMON A 12 FARR; E.F. BY AND THROUGH HER PLAINTIFFS'OTION IN LIMINE TO GUARDIAN AND GUARDIAN AD LITEM EXCLUDE DEFENDANT'S EXPERT, a 13 SOLOMON FARR; S.F. BY AND THROUGH DR. HARVEY LERCHIN M.D., FROM o v .oE HIS GUARDIAN AND GUARDIAN AD TESTIFYING AT TRIAL [PLAINTIFF'S 14 LITEM SOLOMON FARR, MIL 5 of 9] V 15 Plaintiffs, Action Filed: May 31, 2019 Z o' Trial Date: September 15, 2023 16 V. Trial Dept: 16 Ul 17 MARK ZAPATA MARTINEZ; MARTHA MARTINEZ; ALTERNATIVE FAMILY 18 SERVICES, INC.; COUNTY OF SONOMA; STATE OF CALIFORNIA AND DOES 3-30, 19 Defendants. 20 21 I. INTRODUCTION 22 Plaintiffs C.F., E.F,, and S.F., minors (hereinafter "Plaintiffs,** collectively), hereby move 23 this Court in limine for an order to exclude the opinions of Defendant AFS'hereinafter "AFS") 24 damages expert, Dr. Harvey Lcrchin. Dr. Lerchin's opinions regarding Plaintiffs'ental health / 25 psychiatric issues are inadmissible and should be excluded pursuant to Evidence Code section 26 801 because Dr. Lerchin is unqualified and his opinions are not based on the facts of this case. 27 Pursuant to Evidence Code section 801, Plaintiffs request that this Court exclude Dr. 28 Lerchin's unreliable and unfounded opinions. Alternatively, prior to Dr. Lerchin testifying, -I- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCIIIN FROM TESTIFYING AT TRIAL 1PLAINTIFF'S MIL 5 of 91 I Plaintiffs request a hearing, pursuant to Evidence Code section 402, to be held to determine 2 whether Dr. Lerchin's damages opinions have the adequate foundation to satisfy the requirements 3 of Evidence Code section 801 and California case law such as Sargon Enterprises, Inc. v. 4 University qfS. Cal. (2012) 55 Cal. 4th 747, 770 and its predecessors. 5 This is an action for Childhood Sexual Abuse and Sexual Battety, in which Plaintiffs C.F., 6 E.F., and S.F., minors (hereinafter "Plaintiffs," collectively), suffered and will continue to suffer 7 severe and permanent damages including, but not limited to, humiliation, mental, emotional, and 8 physical distress, anxiety, and nervousness. 9 Defendant, MARK ZAPATA MARTINEZ (hereinafter "Mr. Martinez" ), sexually abused 10 sisters E.F. and C.F. from at least April I, 2018, when they were two years old and six years old, 11 respectively, until June 25, 2018, when they were three years old and seven years old, 12 respectively. The abuse occurred in Mr. Martinez*s home, beginning almost immediately after 13 Plaintiffs were placed under his care by Defendant, ALTERNATIVE FAMILY SERVICES, INC. 14 (hereinafter "AFS"). 15 Mr. Martinez was arrested on November 26, 2018, and the Sonoma County District 16 Attorney subsequently charged Mr. Martinez with 11 felony counts of child molestation and 17 sexual assault under Penal Code III) 288(a), 288.7(b), and 288(b)(1), and with violent felony 18 enhancements under IjIi 667.5(c), 1192.7(c), and with child sexual abuse enhancements under Ijlj 19 667.61(j)(2) and (e), 801.1(a), and 799(b) in Sonoma County Superior Court under Case No. 20 SCR-720717-1 (hereinafter the "Criminal Action" ). 21 On March 6, 2020, Mr. Martinez entered into a plea agreement, pleading "no contest" to 2 22 felony counts of child molestation and sexual assault, in violation of California Penal Code IjIj 23 288(a) and 288.7(b), in exchange for the dismissal of the remaining charges and enhancements. 24 Mr. Martinez pled "no contest" to one felony count of child molestation and sexual assault 25 committed upon C.F. from April I, 2018, to June 25, 2018, for the oral copulation with a child 26 who is 10 years of age or younger, in violation of California Penal Code Ij 288.7(b) (Count I). 27 Mr. Mattinez pled "no contest" to one felony count of child molestation and sexual assault 28 committed upon E.F. from April I, 2018, to June 25„2018, for committing a lewd act upon a -2- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYING AT TRIAL I PLAINTIFF'S MIL 5 of 91 1 child under the age of 14, in violation of California Penal Code 5 288(a) (Count Xl). 2 On May 11, 2023, Mr. Martinez was sentenced 21 years to life for 2 felony counts of child 3 molestation and sexual assault committed upon E.F. and C.F., in violation of California Penal 4 Code tjtj 288(a) and 288.7(b), respectively. 5 Notwithstanding the ultimate felony conviction and sentence that should preclude 6 Defendants from introducing evidence challenging the facts essential to the elements of Plaintiffs' claims pursuant to that Evidence Code tjtt 1300 and 452.5 (b), Plaintiffs are apprehensive that 8 Defendants will attempt to introduce irrelevant and prejudicial matters which are the scope of the 9 instant motion. 10 Once a jury hears improper evidence, the Court cannot "un-ring the bell." Cal. Evid. Code q6 11 tj 350 provides that no evidence is admissible except relevant evidence. Cal. Evid. Code lj 210 V 12 provides that relevant evidence is evidence that "is of consequence to the determination of the a 13 action." Cal. Evid. Code tj 352 provides that the Court, in its discretion, may exclude evidence if ~u)- E e 6I 14 the probative value is substantially outweighed by the probability that the admission will create U gl I A 15 substantial danger of undue prejudice, confusion of the issues, or misleading the jury. Z i' 16 For the sake of brevity and judicial efficiency, Plaintiffs make the following consolidated C 17 motion in limine for the various topics listed herein. This motion is based upon Cal. Evid. Code 18 tjlj 210, 350, 352; 702; 1200; et seq., and the authorities herein referenced. This motion is 19 supported by the documentation filed contemporaneously with the present motion, the papers and 20 pleadings filed with this Court, and upon such other and further evidence, documents, and 21 arguments of counsel at the hearing of the motion, 22 This motion is based on, inter alia, that evidence that is speculative, entirely lacking in 23 evidentiary support, and/or without probative value is drastically outweighed by its prejudicial 24 effect and must therefore be precluded at trial. 25 II. RELIEF REOUESTKD IN LIMINE 26 Via this motion in limine, Plaintiffs seek an order from this Court excluding Dr. Harvey 27 Lerchin: 28 A. From testifying at trial in this case as he is not qualified to render opinions as he is -5- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCIIIN FROM TESTIFYliVG AT TRIAL lPLAINTIFF'S MIL 5 of 91 not board certified in child psychiatry and has not even seen a child patient in past 5 years. 3 FL From testifying at trial in case based on absence of medical probability, generally, for his opinions in this case. 5 C. Exclude Dr. Lerchin from opining at trial regarding EF and SF due to absence of medical probability for his opinions as to them specifically. 7 D. Exclude Dr. Lerchin from providing opinions on future treatment needs of CF, EF, and SF based on him stating he did not have opinions on a treatment plan. 9 E. Exclude Dr. Lerchin from claiming he was blocked from completing anything by 10 counsel/Court. qo R 11 F. Exclude Dr. Lerchin from commenting on CAPS-5 testing completed by Dr. V N 12 Ponton as he is not qualified in this testing. &8 IX 5 13 G. Exclude Dr. Lerchin from claiming, generally, there is a "history of neglect" or o'- ta c E 14 "prior trauma" of the children without foundationally establishing what he is 0 15 specifically referring to and the evidence of same. i" 16 IL Exclude Dr. Lerchin from referencing that the Farr children could receive free to 17 mental health treatment, Medicaid, or similar as speculative and a violation of collateral source rule. 19 I. Exclude Dr. Lerchin from claiming SF lied about abuse by someone else at CASA. 20 Plaintiffs ask this Court to preclude the above at all stages of trial and, in particular, 21 during any proceedings before the jury (including voir dire), any and all evidence, references to 22 evidence, testimony, or arguments with respect to the above. Additionally, Plaintiffs request that 23 Defendant be ordered not to ask any questions of any witnesses regarding or suggesting the 24 existence of such evidence, that Defendant be ordered to instruct its witnesses not to mention 25 such evidence, and that Defendant be ordered not to mention or suggest to the jury that this 26 motion was brought and granted. 27 /// 28 /// -4- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCIIIN FROM TESTIFYING AT TRIAL [PLAINTIFF'S MIL 5 of 91 I III. ARGUMENT 2 Courts are required to assure that the foundational predicates for admission of any expert 3 testimony are met, such that it would assist the trier of fact in evaluating the issues to be decided. 4 (Sargon Enterprises, supra, 55 Cal.4th 747, 770, 149 Cal.Rptr.3d 614, 288 P.3d 1237; II 802; 5 Jennings, supra, 114 Cal.App.4th 1108, 1117, 8 Cal.Rptr.3d 363; Sargon Enterprises, supra, at pp. 6 771-772, 149 Cal.Rptr.3d 614, 288 P.3d 1237 [inquiry includes whether opinion is based on 7 unsupported reasons or is speculative].) A. DR. LERCHIN IS NOT OUALIFIED TO TESTIFY AS AN EXPFRT WITNESS 10 California Evidence Code states that: $ 801 qe If a witness is testifying as an expert, his testimony is limited to such an CC g& opinion as is: ... (b) Based on a matter (including his special knowledge, u 12 skill, experience, training and education) perceived by a person known to iI P the witness or made known to him at or before the hearing, whether or not Z 13 admissible, that is of a type that reasonably may be relied upon by an -.='fi expert in forming an opinion upon which the subject to which his 0o 14 testimony relates... O d i6 l 15 The witness is qualified to testify as to matters calling for expert opinion is his peculiar z 16 skill, training, or experience enable him to form opinions. People v. Davis (1965) 62 Cal.2d 791, 0 17 44 Cal.Rptr. 454. The test for qualification of an expert witness is whether he discloses sufficient 18 knowledge of the subject to cntitlc his opinions to go to the jury. Mater v. Hommel (1931) 213 19 Cal. 677, 3 P.2d 554. See also, Pearce v. Linde (1952) 113 Cal.App.2d 627; Cooper v. Board of 20 Medical Examiners (1975) 49 Cal.App.3d 931. 21 In this case, Dr. Lerchin lacks the appropriate expert qualifications to testify as to the 22 Plaintiffs'amages. In the past 5 years, Dr. Lerchin has not treated a child, defined as younger 23 than high school. (Exhibit "A," Lerchin deposition, 92:3-2.) While Dr. Lerchin has been board 24 certified by the American Board of Psychiatry and Neurology since 1980, he has never been 25 board certified in either child or adolescent psychiatry. (Exhibit A, 4:1-3.) Dr. Lerchin does not 26 28 Plaintiffs'7 have the requisite special knowledge, skill, or experience to testify regarding minor current mental health issues, causation, reasonableness of past treatment and assessment any future mental health care needs of Plaintiffs. Additionally, Dr. Lerchin's opinions should be -5- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYING AT TRIAL 1PLAINTIFF'S MIL 5 of 91 1 excluded because they are not supported by the facts of this case. 2 In addition, by his own admission, Dr. Lerchin: ~ Lacks the appropriate knowledge, experience, and skill necessary to provide opinions with reasonable medical probability. 5 ~ Claims to be limited by Judge Patrick Broderick's Court Order, dated June 27, 2022, and "would have preferred and would prefer to have been in a position to be more confident in my medical opinions." (16:14-16). ~ Lacks the requisite level of knowledge and experience to testify as to long-term impacts of childhood sexual abuse — which are one of the key components to this 10 case. qS ~ Has not reviewed any meta-type studies on the long-term impacts of childhood I ( i' x 12 sexual abuse for over 20 years "and not for the purposes of this case." (78:11-18). C 13 ~ Is not trained or qualified to administer CAPS-5 testing which is used to measure Ul 14 posttraumatic stress disorder diagnosis and severity in children ages 7 and above. O io 'ti 15 As further demonstrated herein, Dr. Lerchin does not have the actual capacity to California V Z 0 \d o' o 16 understand the very evidence he was retained to analyze. 17 Evidence Code II 803 states that "the court may, and upon objection shall, io O g cV 18 exclude testimony in the form of an opinion that is based in whole or in significant part on a 19 matter that is not a proper basis for such opinion." Here, Dr. Lerchin relied on speculation 20 regarding Plaintiffs* prior trauma and discounted the criminal court's judgment, that under a 21 higher burden of proof than alleged in this civil case, both E.F. and C.F. were sexually abused, 22 In sum, this case involves the injuries three young children sustained as a result of sexual 23 molestation and the long-term impact they will thereby suffer. Dr. Lerchin has no current or 24 relevant experience to opine on such issues, and therefore lacks sufficient credentials, 25 qualifications, and expertise io opine on Plaintiffs'ental health issues in this matter. His 26 testimony cannot be permitted into evidence by this Court. 27 /// 28 /// -6- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYING AT TRIAL 1PLAINTIFF'S MIL 5 of 91 B. DR. LERCHIN'S OPINIONS ARE NOT BASED ON A REASONABLE DEGREE OF MEDICAL PROBABILITY 3 Defense experts are not entitled to testify about possibilities or other unsupported possible causes for Plaintiffs'onditions. "The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony, Mere possibility alone is insufficient to establish a prima facie case." (Lattimore v. Dickey III 7 (2015) 239 Cal.App.4th 959 [A "chance" or "possibility" do not amount to reasonable medical g probability.], quoting Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402. 9 By his own admission, Dr. Lerchin lacked the appropriate knowledge, experience, and 10 skill necessary to provide opinions with reasonable medical probability. In his deposition, Dr. q Lerchin testified that he was limited by Judge Patrick Broderick's Court Order, dated June 27, CJ W 2022, and "would have preferred and would prefer to have been in a position to be more 7EQ 13 confident in my medical opinions." (16:14-16). E & u&— 14 When Dr. Lerchin was asked generally whether he was prepared to offer opinions with reasonable medical probability regarding the Plaintiffs, he testified as follows: z4IP C e 16 So my question is this, and it's a little more specific. In this case, k.: 17 are you prepared to offer opinions with reasonable medical h O probability regarding CF, EF, and SF, or do you just not have iii O 18 enough information at this point? I had enough information to give my medical impressions. I hesitate 19 to call that confirmed medical opinion with probability. So I'm caught uncomfortably and unusually able to give only modified or 20 qualified medical opinion, and I want that to be very clear. 21 Given that Dr. Lerchin admits that unable to prove medical opinions with a reasonable 22 degree of medical probability regarding the Plaintiffs, generally, he should be precluded from 23 offering any of his opinions at trial. 24 C. DR. LERCHIN'S OPINIONS REGARDING E.F. AND S.F. ARE NOT BASED ON A REASONABLE DEGREE OF MEDICAL PROBABILITY 25 26 Dr. Lerchin should be excluded from testifying at trial regarding injuries E.F, and S.F. 27 sustained as a result of the sexual abuse at issue in this case. In his deposition, Dr. Lerchin 2g testified that he does not know whether EF or SF suffered from PTSD as a result of the sexual -7- PLAINTIFFS'IL TO EXCLUDE DEFENDANT1S EXPERT LERCHIN FROM TESTIFYING AT TRIAL (PLAINTIFF'S MIL 5 of 91 I abuse: So to be clear, and just close the loop, it's your opinion, with medical probability, that [C.F.] does suffer from PTSD as a result of the sexual abuse at the Martinez foster home. But with respect to [E.F.] and [S.F.], you don't know if they do or not. Correct? Correct. 5 As Dr. Lerchin lacks the appropriate knowledge, experience, and skill necessary to provide opinions with reasonable medical probability as io the injuries E.F. and S.F. sustained as a result of the sexual abuse in foster care, he must be excluded from testifying on the matter at 8 trial. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1385.) D. DR. LERCHIN OPINIONS REGARDING PLAINTIFFS'UTURE MEDICAL NEEDS HAVE NO EVIDENTIARY SUPPORT 10 11 As the Court of Appeal explained in Jennings v. Paiomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108: 13 [A]n expert's opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value 14 and may be excluded from evidence. Similarly, when an expert's opinion is 15 purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an expert opinion is worth no more than the reasons upon which it rests. 17 Exclusion of expert opinions that rest on guess, surmise or conjecture is an 18 inherent corollary to the foundationaI predicate for admission of the expert 19 testimony: will the testimony assist the trier of fact to evaluate the issues it must decide'? Therefore, an expert's opinion that something could be true if 20 certain assumed facts are true, without any foundation for concluding those assumed facts exist in the case before the jury, does not provide assistance 21 to the jute because the jury is charged with determining what occurred in the case before it, not hypothetical possibilities. Similarly, an expert' 22 conclusory opinion that something did occur, when unaccompanied by a 23 reasoned explanation illuminating how the expert employed his or her superior knowledge and training to connect the facts with the ultimate 24 conclusion, does not assist the jury. In this latter circumstance, the jury remains unenlightened in how or why the facts could support the 25 conclusion urged by the expert, and therefore the jury remains unequipped 26 with the tools to decide whether it is more probable than not that the facts do support the conclusion urged by the expert. An expert who gives only a 27 conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred. 28 -8- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYING AT TRIAL [PLAINTIFF'S MIL 5 of 9J 1 (/d. at 1117-18 [internal citations and quotation marks omitted, emphasis in the original].) 2 While Dr. Lerchin disagrees with Dr. Ponton's treatment plan, he did not provide a 3 treatment plan of his own, did not make independent efforts to quantify Plaintiffs'uture medical 4 needs, or explain how Dr. Ponton's treatment plan is excessive. 5 Instead, Dr. Lerchin testified: Q: With respect to CF Farr, what is your treatment plan for her during her lifetime to treat her PTSD as a result of sexual abuse in the Martinez foster home? If you have one. A. Yeah. Well, the short answer is I don't have one. Q. Okay. With respect to EF Farr and Solomon Farr, given that you don' know or have an opinion if they suffer from PTSD, would it be fair to say you also don't have an opinion on a treatment plan for them in the future for their lifetime? 10 A. I do not have a firm opinion with regard to treatment of either of those two youngsters, again, for the reasons stated previously. qc o t4 As Dr. Lerchin's opinions are unrelated to an interpretation of Plaintiffs'edical history j r 12 Z C P E 14 Plaintiffs'3 and the facts of this case, he is not competent(qualified to render opinions about medical diagnoses, prognoses, and corresponding treatment plans. (Ibid.) Further, as Dr. Lerchin admitted that he did not have a treatment plan for the Plaintiffs and his opinions are wholly t 15 conclusory and without evidentiary support, he must be excluded from testifying on the matter at i-'o 16 trial. (/bid.) 17 E. NEITHER PLAINTIFFS'OUNSEL NOR THIS COURT LIMITED DR. 18 LERCHIN FROM PROVIDING A COMPETENT EXPERT OPINION 19 21 Plaintiffs'0 Dr. Lerchin's evaluation of the Plaintiffs was not limited by the Court or attorneys. Instead, it was Dr. Lerchin's own requests, submitted in his own declaration to this Court, that would serve as the only possible limitation on the scope of his examination, report, 22 and testimony. 23 Furthermore, Dr. Lerchin testified that defense counsel did not request his opinions on 24 certain matters, i.e., Plaintiffs'reatment plans. 25 27 Plaintiffs'6 Simply put, Dr. Lerchin was not limited by any action taken by this Court or counsel. Defendants cannot use their counsel's or expert's lack of diligence as a shield in expert discovery and then a sword at trial. 28 /// -9- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYIiVG AT TRIAL 1PLA IN TIFF'S M IL 5 of 91 F. DR. LERCHIN IS NOT OUALIFIED TO RENDER AN OPINION ON CAPS-5 TESTING 3 A person who qualifies as an expert may give testimony in the form of an opinion if the 4 subject matter of that opinion is sufficiently beyond common experience that the opinion of [the] expert would assist the trier of fact." Jennings v. Palomar Pomerado Health Systems, Inc., (2003), 114 Cal.App. 4th 1108, 1116 (quoting Evid C. I'I 801, subd. (a)). However, "even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any 8 opinion the area of expertise. Id. at 1117 (citing Suminers v. A.L Gilbert Co (1999), 69 Cal.App. 4th 1155). In fact, California courts will not hesitate to exclude or limit expert testimony where an 10 expert's opinions rest on nothing more than mere guess, surmise or conjecture. See e.g. Pacific q o Gas diglectric Co v. Zuckerman (1978), 189 Cal.App. 3d 1113 (excluding expert's opinion based x on assumptions of fact without evidentiary support); Lockheed Martin Corp, v. 4 Superior Court 8 IC (2003), 29 Cal. 4th 1096) (precluding expert testimony based on speculative or conjectural ai4 E 14 factors); McGonnell v. fraiser Gypsum Co. (2002), 98 Cal.App. 4th 379 (excluding expert E gg td 'C testimony which has no evidentiary value). z A o In the matter before the Court, Dr. Lerchin may attempt to testify to matters involving 16 17 CAPS-5 testing which he has admitted is outside his area of expertise. As such, Dr. Lerchin must fg U2 IQ O 18 be precluded from testifying on all matters relating to CAPS-5 testing. (Hyatt v. Sierra Boat Co. 19 (1978) 79 Cal.App.3d 325, 337-39 (exclusion of expert testimony on matters where the expected 20 testimony lacked proper foundation; merely speculative).) 21 G. DR. LERCHIN CANNOT PROVIDE A COMPETENT OPINION REGARDING ANY "PRIOR TRAUMA" OR "HISTORY OF NEGLECT" 22 23 Expert opinion is only admissible if it will help the jury to understand the issues to be 24 decided and only if it is based on a proper foundation. Evid. Code I'It] 801-803. In California, expert opinions are only as good as the information and analysis on which they are based; and if a quality foundation is missing, the opinions must be excluded. Bozzi v. Nordstrom, Inc. (2010) 186 27 Cal. App. 4th 755, 762; 28 The trial court may exclude expert opinion testimony that is "(I) based on matter of a type - I 0- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYING AT TRIAL [PLAINTIFF'S M IL 5 of 91 1 on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on 2 which the expert relies, or (3) speculative." Sargon Enterprises, Inc. v. University of Sou&he& n 3 Cal. (2012) 55 Cal.4th 747, 771-72. 4 Courts must be cautious in excluding expert testimony, but the court's focus "must be on 5 principles and methodology, not on the conclusions that they generate.'* Daubert v. Mer& ell Dow 6 Phar&naceuticals, Inc. (1993) 509 U.S, 579, 595. A court has the duty of determining whether 7 there is a reasonable basis for an opinion or whether that opinion is "based on a leap of'logic or 8 conjecture." Sargon Enterprises, Inc. v, University of Sou&I&em Cal. 55 Cal.4th, at 632). 9 "[W]hen an expert's opinion is purely conclusory because unaccompanied by a reasoned 10 explanation connecting the factual predicates to the ultimate conclusion, that opinion has no eo 11 evidentiary value because an expert opinion is worth no more than the reasons upon which it o o u 12 rests." Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117. ax=' 13 "And, also, 'A finding of fact must be an inference drawn from evidence rather than on a E o & o 14 mere speculation as to probabilities without evidence. A majority of chances never can suffice o oOoo \Q I 15 alone to establish a proposition of fact, since the slightest real evidence would outweigh all 2 eo 4 16 contrary probabilities.'23 Cor.Jur., tj 1750, p. 18.)" (Estate of Gutierrez (1961) 189 Cal.App.2d tA 17 165, 174.) o 18 This case is about a foster agency's duty, and utter failure, to place three young children in 19 a safe home. Instead, AFS placed two-year-old E.F., five-year-old S.F., and six-year-old C.F., in 20 a home with a sexual predator who molested them over the ensuing months. 21 Dr. Lerchin must be excluded from claiming, generally, that Plaintiffs suffered from a 22 "history of neglect*'r "prior trauma" as he failed to establish any cognizable foundation as to the 23 existence of any "trauma" or "neglect" and must therefore be precluded from testifying on the 24 matter. Simply put, there is no evidence that Plaintiffs have suffered any prior or other trauma 25 that connect to their injuries presently alleged. 26 Even if Dr. Lerchin properly relied on evidence of prior trauma, it may be excluded as too 27 remote to be relevant to the issues to be considered by the jury in determining whether AFS acted 28 negligently towards Plaintiffs or whether AFS shares responsibility for the sexual abuse they -11- PLAINTIFFS'IL TO EXCI.UDE DEFENDANT'S EXPER'f LERCHIN FROM TESTIFYING AT TRIAL 1PLAINTIFF'S MIL 5 of 91 1 suffered. (Larson v. Solbakken (1963) 221 Cal.App.2d 410,421.) 2 The only motive Defendants possibly have in introducing such evidence is to lead the jury 3 to believe that Plaintiffs suffered trauma before the sexual abuse, and their injuries, therefore, are 4 not a result of being sexually molested. The introduction of this evidence would have the result of 5 drawing the jury's attention away from the true facts and suggesting additional ones. The jury 6 would lose sight of the real issues in this case and be preoccupied with the irrelevant evidence 7 presented. The jury would be asked to conflate sexual trauma with an contrived story. This 8 evidence is of such a nature that its probative value is substantially outweighed by the probability 9 that its admission would create a substantial danger of undue prejudice and confuse and lead the 10 jury to erroneous findings of causation of injuries so as to warrant its exclusion. (Evidence Code, 11 tj 352.) It is, therefore, requested that the Court order its exclusion. 12 H. DR. LERCHIN IS PROHIBITED FROM SUGGESTING THAT PLAINTIFFS COULD HAVE, OR SHOULD HAVE. OBTAINED FREE 13 AND/OR AFFORDABLE MENTAL HEALTH CARE 14 It is anticipated that Defendants will attempt to dictate Plaintiffs'edical needs 15 retrospectively and argue that they should have treated through Medi-Cal, Medicaid, or other 16 affordable providers that Plaintiffs, based on Dr. Lerchin*s deposition testimony. 17 However, any mention of insurance at the time of trial is irrelevant and strictly prohibited. 18 CACI Jury Instructions are directly on point: "You must not consider whether any of the parties 19 in this case has insurance. The presence or absence of insurance is totally irrelevant. You must 20 decide this case based only on the law and the evidence.'* (CACI No. 105). 21 Moreover, Plaintiffs have a Supreme-Court-recognized substantive-due-process right to 22 make medical treatment choices. (See 8. Jessie Hill, The Constitutional Right to Make Medical 23 Treatment Decisions: 2 Tale of Two Doctrines (2007) 86 TEX. L. REV. 277, 329 [arguing there 24 is a Constitutional right to make autonomous medical treatment decisions]). 25 Furthermore, the rule of mitigation of damages has no application where its effect would 26 be to require the innocent party to sacrifice and surrender important and valuable rights. Seaboard 27 Music Co. v. Germano (1972) 24 Cal.App.3d 618, 623. 28 Even if Plaintiffs could have qualified for free or affordable mental health care, it would -12- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCIIIN FROiVI TESTIFYING AT TRIAL [PLAINTIFF'S MIL 5 of 91 1 be completely speculative for the defense to argue now what treatment would have occurred and 2 what damages may have been mitigated. Therefore, any suggestion that Plaintiffs could have 3 sought free or affordable mental health care must be excluded. Pebley v. Santa Clara Organics, 4 LLC (2018) 22 Cal.App.5th 1266. "We therefore reject defendants'rgument that [plaintiffj 5 failed to mitigate his damages. A tortfeasor cannot force a plaintiff to use his or her insurance to 6 obtain medical treatment for injuries caused by the tortfeasor. That choice belongs to the 7 plaintiff." (Id. at 1277-1278(emphasis added).) 8 Lastly, and most importantly, Dr. Lerchin testified that he did not know whether E,F, or 9 S.F. suffered from PTSD as a result of the sexual abuse they suffered in the Martinez home, and 10 did not have a "firm opinion with regard to treatment of either." 11 Although Dr. Lerchin admitted that C.F. did suffer from PTSD as a result of the sexual 12 abuse suffered in the Martinez home, he did not have a treatment plan for C.F. 13 15 Plaintiffs'4 As discussed above, Dr. Lerchin's opinions are unrelated to an interpretation of medical history and the facts of this case, he is not competent/qualified to render opinions about Plaintiffs'edical diagnoses, prognoses, and future medical care. 16 It would therefore be simply incredulous for Dr. Lerchin to make any reference that 17 Plaintiffs did not seek medical treatment from any resources available to them in the past as he is 18 unable to form a competent opinion on their diagnoses, prognoses, or future medical needs. 19 Accordingly, Dr. Lerchin should be precluded from offering testimony regarding or 20 relating to the availability of health care. 21 I. DR. LERCHIN MAY NOT SUGGEST THAT S.F. OR HIS FATHER MADE A FALSE ALLEGATION OF ABUSE 22 23 Dr. Lerchin was not retained by the defense to opine on the credibility/reliability of a 24 child's sexual abuse allegation. However, as defense counsel questioned Dr. Lerchin whether 25 S.F. "falsely accused somebody of abusing him while in the care of another facility," it is 26 anticipated Dr. Lerchin will attempt to comment on this at trial. 27 As an initial matter, the reference pertains to a therapy note from S.F.'s father's therapy 28 session: "[father] had to talk to [S.F.j who lied about the Casa lady "whooping him." This record -I 3- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCHIN FROM TESTIFYING AT TRIAL [PLAINTIFF'S MIL 5 of 91 1 is inadmissible as it would violate Plaintiffs* father's constitutional right to privacy. 2 Moreover, Dr. Lerchin was not retained as an expert to evaluate the credibility/reliability 3 of child sexual abuse allegations, and as such he is not qualified to testify on the matter as it 4 would call for expert opinion outside his peculiar skill, training, or experience enable him to form 5 opinions. People v. Davis (1965) 62 Cal.2d 791, 44 Cal.Rptr. 454. 6 Furthermore, Dr. Lerchin does not provide his opinion as to whether S.F. or his father 7 made any false allegations or formed false memories. 8 Lastly, to be an appropriate impeachment witness, the witness must have personal 9 knowledge of the honesty or veracity of the person whom the witness is supposed to testify. See 10 California Evidence (tj702.) To the extent that Dr. Lerchin's testimony is offered in order to 11 impeach Plaintiffs'ather, the Court should exclude it because Dr. Lerchin does not have first- 12 hand knowledge and is therefore not qualified to offer such testimony. 13 Dr. Lerchin did not and indeed cannot testify about the veracity or credibility (or lack 14 thereof) of S.F. or his father and any attempt to do so at trial must be precluded. 15 IV. CONCLUSION 16 For the foregoing reasons, Plaintiff respectfully requests that this Court issue a pre-trial 17 order excluding at all stages of trial and, in particular, during any proceedings before the jury 18 (including voir dire) any and all evidence, references to evidence, testimony, or arguments as 19 outlined herein. Dated: September 7, 2023 ABBEY', WEITZE , WARREN 6'r EMERY 21 22 ., iski S o'ft R'. ( Montgombiy, Esq 23 aitlyn D. Wright, Esq. Natasha E. Berg, Esq. 24 Attorneys lor Plaintiffs 25 26 27 28 -14- PLAINTIFFS'IL TO EXCLUDE DEFENDANT'S EXPERT LERCIIIN FROM TESTIFYING AT TRIAL 1PLAINTIFF'S iVIIL 5 of 91