In early 2005, the California's Court of Appeal for the Second District issued a fascinating (and highly favorable for defendants) decision in the toxic tort, solvent-exposure case Lockheed Litigation Cases, B166347. In a case involving the admissibility of the opinions of the notorious and well-traveled Dr. Daniel Teitelbaum , the Court of Appeal held that California Evidence Code section 801(b) allowed the trial court to act as a gate-keeper -- much as in Federal Court under Daubert --and excluded Teitelbaum's opinions because they were based on epidemiological studies of multiple solvent exposures, with no indication that there was a risk posed by the specific solvents involved in this case. The Court also found no error in excluding expert opinion based on case reports, animal studies and toxic registries. In short, the decision answered all kinds of frequently encountered toxic tort evidentiary questions, moved California a bit closer to Daubert, and contained much anti-junk science ammunition for defendants in these cases.
The California Supremes granted review a couple of months later, and under California law, this made the decision unciteable, and not authority for anything. But it did look as though we would see some really useful evidentiary authority from the Supreme Court once the case was briefed and argued at that level.
No such luck. Last week, the Supremes dismissed the review under very unusual circumstances: that a majority of the members of the seven-justice court had been required to recuse themselves. This despite the fact that rules of court (and common practice) provide for appointment of "pro tem' justices when members are disqualified, and on at least two past instances -- none recently -- all seven justices have been recused and replaced by pro tems.
So the current situation is that the Lockheed decision has no effect on anyone but the immediate parties, and the law on admissibility of expert testimony remains as wide-open as ever.
(More N.B.: The link to Dr. Teitelbaum above is to news about another California case where he testified, a case where the plaintiffs -- his clients -- lost.)