Here is the somewhat tardy part III of my postings on introduction to product liability litigation in California. This time, we’re posting about experts. I’ve been learning lately that this site is attracting a number of non-lawyer readers, and this topic in particular has a certain amount of inside baseball to it. But I’ll try my best to make this understandable to all.
After I tell my out-of-state friends and clients that all of their arguments about state of the art and risk benefit aren’t going to work here, and the fact that somebody else was largely responsible for the accident isn’t going to be much of a defense, they often turn next to questions of admissibility of evidence. Something along the lines of “Well, the court will never allow the plaintiff’s expert to say __________________, will it?”
Uh, sorry. Looks like strike three. (Note baseball metaphor above.) California is what’s known as a non-Daubert state. And after that, things get worse.
More after the jump.
Since a little bit of history is worth a ton of theory, here’s some history:
Way back in 1976, in a case called People v. Kelly (1976) 17 Cal.3d 24,
the California Supreme Court adopted the standard set forth in the
District of Columbia Circuit’s decision in Frye v. United States, 293
F. 1013 (DC Cir. 1923). The 1923 standard is as follows:
while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Much of the rest of the world followed this, as well, until 1993, when
the United States Supreme Court decided Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Between Daubert and Kumho
Tire v. Campbell, it became clear that the Federal trial judges were to
act as gate-keepers; before admitting scientific testimony, the trial
judge must determine whether the testimony’s underlying methodology or
reasoning is scientifically valid. Daubert has been adopted in many,
but not all states.
In 1994, defense counsel took a run at the California Supreme Court,
trying to encourage adoption of Daubert in California. No luck. In
People v. Leahy (1994) 8 Cal.4th 587, the Court held that Daubert,
being based on the Federal Rules of Evidence, was not the law in
California, which would continue to apply the Kelly/Frye rule. Later, in a not-too-subtle swipe at SCOTUS, the Court ruled in 2002 that
[t]he admissibility of evidence obtained by use of a scientific technique does not depend upon proof to the satisfaction of a court that the technique is scientifically reliable or valid. . . Because courts are ill suited to make such determinations, admissibility depends upon whether the technique is generally accepted as reliable in the relevant scientific community.
While the Kelly / Frye rule is often understood to apply to expert
testimony generally, it is actually much narrower than that. As the
Cal Supremes noted in People v. Stoll (1989) 49 Cal.3d 1136, 1156, the
rule is limited to “new scientific techniques,” which are new to
science and the law, and which provide “some definitive truth which the
expert need only accurately recognize and relay to the jury.” In fact,
in Roberti v. Andy’s Termite & Pest Control, Inc. (2003) 113
Cal.App.4th 893, a trial judge was reversed for excluding expert testimony
that pesticides caused autism, in part on the ground that medical
theories of causation were not “new scientific technique” and not
subject to Kelly/Fry.
The closest thing there is to a “gatekeeper” for expert testimony in
California is Evidence Code section 801(b), allowing expert testimony
that is:
Based on matter . . . that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to
which his testimony relates, unless an expert is precluded by law
from using such matter as a basis for his opinion.
Trial courts have enormous discretion to determine what matter “is of a
type that reasonably may be relied upon by an expert,” and when courts
have discretion, that usually means there is no right to appeal if they
allow evidence in error. On the other hand, in Roberti, a trial court
was reversed for bootstrapping an 801(b) analysis into a Daubert-type
analysis.
So this is why defendants in California now want to remove to federal
court. They get the benefit of Daubert. (On the other hand, once
removal is accomplished, they also now get the burden of e-discovery
which they really don’t have in California state courts. So pick your poison.)
The real action in this area is presently in the 2005 Court of Appeal
case of Lockheed Litigation Cases, formerly published in 126
Cal.App.4th 271. (Note to you out-of-state readers: because the
California Supremes have granted a hearing on this case, the appellate
decision is not citeable as authority for anything.)
Lockheed is a mass-tort case involving “chemical soup” type exposures
and disease claims by a large number of former Lockheed workers against
a host of chemical and oil companies. The case has been going on at
the trial level for years, and has resulted in a variety of appellate
decisions on a variety of subjects.
On the subject we are interested in, the trial court excluded the testimony of
Dr. Daniel Teitelbaum, a, ahem, well-traveled plaintiff toxicologist,
whose testimony was found wanting in the case eventually heard by
SCOTUS as General Electric Co. v. Joiner (1997) 522 U.S. 136. Our office has been dealing with Dr. Teitelbaum for more than fifteen years now.
Anyway, Teitlebaum found causation based on epidemiology studies, animal
studies and case reports. After something that looked an awful lot
like a Daubert hearing, the trial court excluded his testimony on the
ground that the studies and reports did not provide a reasonable basis
for his opinions, and the Court of Appeal affirmed. The case is on our
watch list at the California Supreme Court as we wait to see just how
far a California trial court can go in acting as a “gatekeeper.”
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