HIGHER COURT DECISION: STRIKING THE EXPERT'S TESTIMONY/REPORTS JUST GOT TOUGHER
/INTRODUCTION: WHY THIS CASE MATTERS
It is not uncommon for one parent in a custody battle to review a psychologist's report before a family law trial and exclaim "the Doctor got it all wrong! He was so mean to me! He practically fell in love with the other parent during the interviews!". This parent, if they have counsel, will rush to the attorney's office, demanding something be done to omit the report because "clearly" the 730 evaluator was biased.
A family law attorney has several avenues to try to stop, or at least diminish, the effect of a poor 730 evaluation. The first option is to request a "733" evaluation, which allows for another expert to give a written opinion or testimony on the "unfair/biased" report. The second option is to put the first expert on the witness stand in order to reduce the effectiveness, or weight, of the testimony/report of the expert. The third option is to file a Motion to Strike the expert's testimony/report as violative of California Rules of Court Section 5.220 (claiming the expert's bias violates rule 5.220(h)(1) that the expert shall "maintain objectivity").
In Re Marriage of Winternitz just made it tougher to have your third option, the Motion to Strike the Expert, as a choice in attacking a biased 730 evaluation.
WHAT DID THE HIGHER COURT DECIDE?
Two weeks ago the Fourth Appellate District ruled that it was not legal error to allow a defective and biased psychological report to remain as evidence in a Family Law Matter. Cited as In Re Marriage of Winternitz (2015) DJDAR 3526, the appellate court ruled that a biased and less-than procedurally compliant (sloppy) expert's recommendation/testimony on a move-away matter affects "the weight of the report, not its admissibility", and therefore survives a motion to strike.
WHY WAS THE ONE PARENT TRYING TO STRIKE THE EVIDENTIARY REPORT?
This matter involved the custody of a minor daughter, now in high school, and whether the Court would grant Mother's request to move from San Diego County to the City of Chico in Butte County. Father argued that the move was not in the best interests of the minor child, and a trial commenced on that issue. The parties retained an Evidence Code Section 730 evidentiary expert (in this case, a licensed child psychologist) to both file an report for the trial court, and testify as an expert regarding their recommendation.
Once admitted on the stand as an expert witness, the doctor admitted under oath the report was sloppy, and confirmed alleged biased acts against the mother.
The doctor's alleged acts included (1) once yelling at the mother during a one-on-one interview, (2) improperly accepting information directly from the Father, and (3) failing to inform Mother's counsel of his errors and behavior in preparing his report. In the doctor's words, "There were mistakes made in this evaluation in terms of procedure".
The mother argued that the doctor's violations of California Rules of Court 5.220 (which outlines both procedures and ethics for court-ordered child custody evaluators) made it a legal error for the trial court to deny her motion to strike the doctor's defective report. Mother relied on In re Marriage of Adams & Jack A. (2012) 209 Cal.App.4th 1543 (the lower court abuses its discretion when, despite a factual finding regarding bias clearly supported by substantial evidence , denies the motion to strike).
Mother also relied on Leslie O. v. Superior Court (2014), 231 Cal.App.4th 1191, arguing that the biased evidentiary report must be stricken from the record. In Leslie, after reviewing the totality of the circumstances, the court determined that the evaluator "stepped outside her role as evaluator to advocate against" . The Leslie O. evidentiary evaluator (1) wrote about unfavorable facts of the mother, but ignored information unfavorable to the father, (2) provided information on the mother to the father, (3) advised father to seek a better attorney, (4) asked father to keep her updated regarding visitation problems, and (5) told father she (the evaluator) was on his side. The appellate court found the totality of that evaluator's behavior to be egregious enough to strike the recommendation.
MOTHER'S MOTION TO STRIKE IS DENIED, AND THE HIGHER COURT DENIES MOTHER'S APPEAL
In this latest case, the appellate court agrees the lower court was correct by denying the motion to strike the doctor's report. The appellate court reasoned that In re Marriage of Adams "does not stand for the broad proposition that a court appointed evaluator's failure to adhere to all of the requirements set forth in rule 5.220 requires removal of the evaluator or exclusion of the evaluator's written report, and we decline to so rule." In other words, if an evaluator's report does not meet the standards of rule 5.220 (including facts showing bias), that fact in itself is not enough to get an evidentiary report set aside.
Our higher court then ruled that the doctor's mishaps in this matter, including his yelling at the mother and having unauthorized communications with the father, did not demonstrate his stepping "outside [his] role as evaluator to advocate" for the Father. The court refers to the Leslie O. opinion, stating the Leslie O. court "cautioned that an evaluator whose conduct in one or two respects appears similar to [Leslie O's evaluator's] conduct here may not need to be removed. To hold otherwise and thus to endorse appellate micromanagement of every communication or act by the evaluator would make it impossible for evaluators to perform their very difficult and crucial functions" (citing Leslie O. at p. 1212). This court's message: just because an evaluator shows some bias is not enough. The evaluator must demonstrate a totality of bias behavior, a totality that matches that of Leslie O.
Our higher court further states Mother's argument about both (1) the evaluator not following procedures, and (2) the evaluator's alleged bias, goes to the weight, not the admissiblity, of the evidence. In other words, even if there appears to be some procedural mistakes or some bias from the expert, the evidence will still be admissible, albeit the weight of that evidence can be attacked.
WHAT DOES THIS DECISION CHANGE
In re Marriage of Winternitz makes it more difficult for a party and their counsel to remove or strike a 730 evidentiary report that was prepared by a biased expert. Violations of the Rules of Court Section 5.220 will not be an easy avenue to strike a report, unless the totality of the expert's transgressions and biased are egregious.
Furthermore, even if the expert's mistakes/bias/procedures are egregious, a lower court may choose to put the burden on counsel to demonstrate the bias/sloppiness by cross-examination of the expert (which will only diminish the weight of the evidence, and not allow the striking of the same).
When you are in trial over the custody of your child, and an expert's report or testimony is admitted by the trial court, that report remains as evidence. You can cross-examine the expert, and make him/her look sloppy and biased (this may reduce the weight of the expert's testimony).
You can also seek a "second opinion" by providing your own expert under Evidence Code Section 733 to refute the first expert. However, once the first expert presents his report and/or testimony, Winternitz holds it cannot be struck by the trial court as inadmissible.
CONCLUSION - IT IS NOW TOUGHER TO OMIT AN EXPERT'S REPORT/TESTIMONY
The Motion to Strike option can allow for an expert to be disqualified, or have their report "struck", which saves the Court and parties time and money. By diminishing the chances of a successful Motion to Strike, the Winternitz case puts more burden on the objecting party to put the expert on the witness stand to discredit the expert's report, which results in more court-time, and more costs.
Should you have further questions on this case, or any other Family Law or Probate matter, please feel free to contact the office of David L. Taub, Attorney at Law, at (951) 276-0500.