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In Second Suit Plaintiff Allowed to Present Expert Evidence of Claim that had Been Abandoned

2009 | Topic: Product Liability

In Gordon v. Nissan Motor Co., Ltd, 170 Cal. App.4th 1103, decided January 29, 2009, the California Second District Court of Appeal reversed a judgment and remanded a case for a new trial.  The plaintiff had sued for strict products liability after he sustained injuries in a rollover accident.  He elected not to pursue a roof defect claim at his first trial, which resulted in a mistrial.  However prior to the second trial, plaintiff designated experts to testify about that claim.  The appellate court found the roof claim was alleged in plaintiff’s complaint and the manufacturer was provided fair notice of the claim and an ample opportunity to conduct discovery on that claim.  The appellate court found that the trial court had abused its discretion in granting the manufacturer’s motion to strike testimony of a new expert regarding a roof defect claim in the second trial, even though the plaintiff had abandoned that claim prior to the first trial and even if the factual basis of his new claim arguably contradicted the facts presented in the first trial.