Court orders: expert witness confidentiality

📄 Court orders: expert witness confidentiality — Tuesday, November 12, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\12\COURT-ORDERS-EXPERT-WITNESS-CO.DOC

TRIAL

▲ Day 13 of 57

◀ Jury instructions and adjournment Cross-examination of Werner Spitz (part 1) ▶

Examiner: Examiner
Date: Tuesday, November 12, 1996 • Utterances: 29

The court addressed two issues: first, plaintiff's counsel complained that Dr. Michael Baden (defense expert witness) appeared on television commenting on Dr. Spitz's ongoing testimony, and Judge Fujisaki warned that any witness who makes public media comments about the case will be precluded from testifying. Second, defense counsel raised that Dr. Spitz revealed during testimony that he had spoken with Dr. Golden (the autopsy surgeon) after his August 16 deposition, information the defense never had a chance to probe; the judge ordered Dr. Spitz not to reference that conversation.

# 1 (REGINA D. CHAVEZ, OFFICIAL REPORTER)

# 2 (The following proceedings were held in open court outside the presence of the jury.)

# 3 MR. LEONARD:

Morning, Your Honor.

# 4 THE COURT:

Okay. Somebody has something they want to address?

# 5 MR. PETROCELLI:

Yes, Your Honor.

With regard to the Court's confidentiality order, we understand that there was a modification with regard to witnesses on the theory that the lawyers cannot control witnesses. But we have here, an expert witness consultant, retained by the defense, paid by the defense, on television last night commenting specifically about the testimony of a pending witness who's testimony is not even concluded.

Dr. Baden is the fellow who is was on TV. He's going to be in court testifying for the defense, talking about Dr. Spitz's testimony in court. I don't think it's appropriate that witnesses under the control of a party, retain witnesses who are thereby agents and representatives of counsel or a party be talking about the proceedings, specifically the subject matter of their testimony while this case is pending; and that's why we filed the application.

# 6 THE COURT:

Well, bearing in mind that the Court addressed the summary issue with regards to the jury selection expert, I indicated at that time that the Court did not feel it had personal jurisdiction over that person. And in this instance, I don't feel that I have personal jurisdiction over Dr. Baden.

However, as in the case of a jury selection expert, I indicated that if the defense cannot keep control of their people, the people they hire, they pay money to, the recourse that's available to the Court is to not permit them to testify. And that's exactly what's going to happen if Dr. Baden continues to comport himself in the manner which he's allegedly comported.

# 7 MR. BAKER:

Understood, Your Honor. We have one other matter.

# 8 THE COURT:

All right. In lieu of an Order to Show Causes re: Contempt, the Court orders that should Dr. Baden or any other any other defense witness get on television or news media and broadcast anything, connected with this case, the Court will do -- the defense and the plaintiff have been forewarned and any witness who prejudices this trial by making public comment on the media with regards to the matters that are directly involved in this case, will be precluded from testifying.

That's going to be my -- That's the way I'm going to handle it. Okay.

# 9 MR. BAKER:

That witness' under our control, right?

# 10 THE COURT:

Well, you -- Dr. Baden appears to be your expert witness.

# 11 MR. BAKER:

He's our expert witness. I agree with that.

# 12 THE COURT:

You pay him. You have control over him.

KEY QUOTE

# 13 MR. BAKER:

I don't know that -- adopt the Court's linkage. I understand the Court's order.

KEY QUOTE

# 14 THE COURT:

All right. Anything else?

# 15 MR. BAKER:

Yes.

# 16 THE COURT:

Yes.

# 17 MR. BAKER:

Your Honor, during Friday's session, Dr. Spitz indicated at page 141 that after we took Dr. Spitz' deposition on August 16, he then had a conversation with Dr. Golden, this is at page 141 of the daily that I got, volume 12, lines 18 through 21.

And I would move the Court that he not be allowed to discuss anything relative to that conversation. He certainly had the opportunity to talk to Dr. Golden between January, when he was retained, and August 16, when we took his deposition and he indicated in his deposition as well that he hadn't talked to Dr. Golden, the autopsy surgeon under the case of Kennemer at 233 Cal.App. 3d.

We would request the Court to order him not to discuss or to bring into his testimony, any of the information gleaned from that conversation because we obviously didn't have an opportunity to cross-examine him about that and go back to Dr. Golden about that conversation, and I think that would be sandbagging us in this case and I don't think it's appropriate and the Kenner case so holds."

# 18 MR. MEDVENE:

If the Court please, Dr. Spitz did not indicate it was the basis for his opinion and further what he said was in response to a question from the defense. He has no intent to raise that.

# 19 THE COURT:

Excuse me?

# 20 MR. MEDVENE:

Unless the defense raises it.

# 21 THE COURT:

What was the question?

# 22 MR. MEDVENE:

My memory of the question.

# 23 THE COURT:

Mr. Baker, you have the transcript right there.

# 24 MR. BAKER:

Question (Reading:)

"As I understand it, you correct me if I'm in error, you did not view any piece of evidence, would that be true.

"A. Well, Yes. I did view evidence. I think the autopsy report is evidence. I think the photographs are evidence.

"Q. Okay. I think that the -- that --

"A. I think that it is evidence that, with everything else, are viewed to get it, such in my mind that I would see totally clear. I also called Dr. Golden, who did the autopsy and talked it over with me."

# 25 Q:

When you took your deposition, you hadn't talked to Dr. Golden.

# 26 A:

No I talked to him afterwards.

# 27 THE COURT:

Okay.

The witness is ordered to the -- not order -- not to refer to any conversation that you had with Dr. Golden.

# 28 THE WITNESS:

Yes, Your Honor.

# 29 THE COURT:

Okay. Thank you. Okay. Bring the jury in.

Temperature

procedural

Key Quotes (4)

Hiroshi Fujisaki

any witness who prejudices this trial by making public comment on the media with regards to the matters that are directly involved in this case, will be precluded from testifying.

Sets a clear enforcement mechanism — preclusion from testifying — as the sanction for media commentary, applying to both sides.

Hiroshi Fujisaki

You pay him. You have control over him.

Judge explicitly links financial relationship to control and responsibility, putting the defense on notice that they own Baden's conduct.

Robert Baker

I don't know that -- adopt the Court's linkage. I understand the Court's order.

Baker subtly pushes back on the legal theory (that payment equals control/agency) while accepting the practical order — preserving a possible future argument.

Witness (Dr. Spitz)

I also called Dr. Golden, who did the autopsy and talked it over with me.

The admission that prompted the second motion — Spitz disclosed a post-deposition conversation with the autopsy surgeon mid-testimony, potentially introducing undisclosed information.

Evidence (2)

Informal

Daily transcript, Volume 12, page 141, lines 18-21 — Dr. Spitz's testimony from Friday's session disclosing his conversation with Dr. Golden

quoted by Baker to support motion to restrict Spitz testimony

Informal

Dr. Spitz's August 16 deposition — in which he indicated he had not spoken with Dr. Golden

cited to establish inconsistency with trial testimony

Notable Exchanges (3)

Daniel Petrocelli•Hiroshi Fujisaki

Petrocelli raises the Baden TV appearance; Fujisaki acknowledges he lacks personal jurisdiction over Baden but pivots to the threat of preclusion as his enforcement lever.

strategic

Robert Baker•Hiroshi Fujisaki

Baker accepts the court's order but resists the underlying 'agency' theory — that paying a witness makes counsel legally responsible for their conduct — without openly arguing the point.

careful/diplomatic

Robert Baker•Edward Medvene•Hiroshi Fujisaki

Baker moves to restrict Spitz from using his Golden conversation; Medvene argues it wasn't the basis of Spitz's opinion and arose in response to defense questioning; judge resolves it by ordering Spitz directly not to reference the conversation.

procedural

Credibility Attacks (1)

⚔ Dr. Werner Spitz

prior inconsistent statement

Baker noted that Spitz stated in his August 16 deposition that he had not spoken with Dr. Golden, but then disclosed mid-testimony that he had called Golden afterward — an undisclosed contact the defense had no opportunity to examine.

Objections

None recorded

Proceeding 8220 • 29 utterances

Civil Trial

Department 103