Expert Opinions: Can’t Get Enough Kennemur

Recently during motion in limine arguments, a pattern quickly emerged with regard to the many motions in limine specifically referencing issues related to expert testimony i.e.: what comes in, what’s excluded, what part or portion of expert testimony will be challenged, allowed and/or admitted during trial. Almost every single motion argument concluded with the judge reverting back to the expert’s actual opinions expressed during deposition and whether the “Kennemur” questions were asked.

The Kennemur questions should always, without fail, be asked throughout and at the end of an opposing expert’s deposition. These questions are as follows:

(1) Have we reviewed all materials you have relied upon to form your opinions?
(2)  Have we discussed all the opinions you intend or expect to offer at trial?
So, why are the Kennemur questions so important?

The failure to ask the Kennemur questions during an expert deposition can open the door for the opposing expert to elaborate on past opinions, and even to put forth new opinions not previously expressed at the time of trial.

The primary goal of an expert deposition is to uncover all the opinions the expert will offer and to avoid any surprise opinions or testimony at the time of trial. The Kennemur questions are key in achieving these goals.

In Kennemur v. State of California (1992) 133 Cal.App.3d 907, the Court of Appeal ruled that “a party must disclose either in his witness list or at his expert’s deposition, if the expert is asked, the substance of the facts and opinions which the expert will testify to at trial. Only by such a disclosure will the opposing party have reasonable notice of the specific areas of investigation by the expert, the opinions he has reached and the reasons supporting the opinions, to the end the opposing party can prepare for cross-examination and rebuttal of the expert’s testimony.”

A key Kennemur component lies in the analysis of “if the expert is asked.” The defense must note and explore any “potential” opinions the expert may have grazed over, but did not delve into in detail. Talk to your expert ahead of time to make sure you are well versed in every potential area the opposing expert may explore. During deposition, if you have even a minor inkling the opposing expert is perhaps expressing an opinion, even if as to an obscure topic, be sure to take time to dig in and explore it so you are not caught off guard during motion arguments, or worse, during trial.

Further, while some save the Kennemur questions for the close of an expert’s deposition, a better tactic is to instead incorporate asking the Kennemur questions after each substantive opinion provided by the opposing expert. Asking these questions after every opinion provides another safeguard in the instance opposing counsel attempts to insinuate you glossed over or did not “explore” an expert’s full opinion on a specific topic.

Lastly, as your expert deposition comes to an end, once again, close it off with the Kennemur questions as to all expert opinions expressed as a failsafe against any surprises at the time of trial.

The importance of the Kennemur questions may not come to light until much later in the case, just before the start of trial. However, do not let the Kennemur questions become lost in the fray throughout the duration of the case. In the end, these simple questions could save you from moments of sheer panic down the road.

ABOUT THE AUTHOR: Kathryn Lee specializes in insurance defense, personal injury, professional liability, and general civil litigation. Contact her at 858-459-4400 or