So Much for Gatekeeping . . .

Green v. City of Riverside, No. D067424 (D4d1 Jul. 29, 2015)

This case arises from the kind of unfortunate interaction between the cops and the mentally ill that seems to happen every day nowadays. An obviously unstable guy is found dancing in the sprinklers at a church in Hemet, wearing only his underwear and saying crazy stuff. Someone calls 911. Cops show. Things escalate. There’s a confrontation. Tasing ensues. Three times. An asphyxiation-friendly move gets used to put the cuffs on. The guy winds up brain dead. And then fully dead. The coroner pins it on a “bad heart.” And a trial before a Riverside jury results in a defense verdict.

Plaintiffs raise three issues on appeal. First, it was error to admit expert testimony to the effect that guy was high on cocaine at the time of the altercation. Second, the court improperly instructed the jury on negligence. And third, the court improperly awarded hourly paralegal fees as costs.

The expert issue is interesting. A few years ago in Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747, 773 (2012) the California Supreme Court re-jiggered the standard regarding the admissibility of expert testimony. Before that, for newfangled scientific techniques, California courts asked whether the methodology is generally accepted in the relevant scientific community. See People v. Leahy, 8 Cal. 4th 587, 604 (1994) (holding that the general acceptance standard adopted in People v. Kelly, 17 Cal. 3d 24 (1976) continues to apply is California courts, despite the federal courts’ rejection of the standard in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)). But for most other expert evidence—such as evidence based on an expert’s experience—the courts largely took a flier, leaving it to the trier of fact of sort stuff out.  Under those standards, expert testimony outside of the cutting edge of hard sciences got very little scrutiny in California state courts. 

Sargon changed that. While declining to abandon the Kelly standard for new scientific techniques, it emphasized the trial court’s role as a “gatekeeper”—a term and analogy borrowed from Daubert. The lack of statutory basis in the Evidence Code to adopt a Daubert-like standard has long been considered an impediment to California courts subjecting expert testimony to any kind of serious scrutiny. But Sargon found a basis in the somewhat tautological language of Evidence Code § 802—which says that a person can’t testify to an opinion if “he is precluded by law from using such reasons or matter as a basis for his opinion.” Relying on a theory espoused in a law review article by my con law prof and the UC Davis professor who edits the New Wigmore evidence treatise, the court reasoned that the “precluded by law” language permitted the common-law development of restrictions on the admissibility of expert evidence based on its lack of reliability. 

Thus, under Sargon, trial courts must keep the gate to preclude bogus expert testimony. In particular, they should exclude testimony that is: “(1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.”

Getting back to the case at hand, the issue is that the city’s expert’s testimony about cocaine intoxication was based on a blood sample taken ten days after the incident that found only metabolical breakdowns of coke. The expert testified that he could back out metabolized compounds and safely conclude that the decedent was coked up when the cops killed him. Plaintiff’s expert testified that that endeavor wasn’t really possible.

The Court of Appeal’s analysis on the issue is unsatisfying. It just states that “a disagreement between two qualified medical experts as to whether the presence of a given level of metabolites of cocaine in Rosenthal’s blood established he was under the influence.” That’s not being a gatekeeper; it’s the same acquiescence that was rejected in Sargon. Indeed, to the extent it’s based on novel forensic science it might fail Kelly too. If the city can’t show that there’s a reasonable scientific basis to rely on a blood sample taken ten days after the fact to show that the subject was intoxicated on a particular evening, its expert shouldn’t be permitted to rely upon that sample under the Sargon rule. If the court is to be a gatekeeper, the fact that both sides can hire someone with a chemistry degree to say they disagree can’t be the start and the end of the analysis.

In any event, plaintiffs lose. They also lose on the issue that the potential cocaine intoxication should have been excluded under Evidence Code § 352.  Unlike the case plaintiffs rely on the decedent’s intoxication was relevant to the disputed issue of causation, so it was not an abuse of discretion to let the jury hear about it.

As to the negligence instruction, the police aren’t subject to a general negligence standard when they kill people. They are subject to a more context-specific standard that looks at whether their actions were reasonable based on the totality of the circumstances. See Hayes v. County of San Diego, 57 Cal. 4th 622 (2013). Problem is, Plaintiffs asked for the general CACI instruction on negligence, not an instruction crafted to Hayes. So they forfeited by not proposing something close enough. And in any event, the excessive force instruction the court gave was more or less the same as the Hayes standard and the jury found that standard satisfied for one defendant. But for all Defendants, they gave a defense verdict on causation. Given that, a negligence instruction wouldn’t change anything, so Plaintiffs weren’t prejudiced.

Finally, there’s an appeal of the award of costs. As a threshold matter, the court holds that a cost award can be appealed in an appeal of the underlying judgment, even though costs are awarded post-judgment and separately appealable. The issue concerns about $40k in paralegal costs incurred in putting together trial graphics. Those are neither expressly permitted under Code of Civil Procedure § 1033.5(a) nor prohibited by § 1033.5(b). Under §1033.5(c), they can be awarded in the discretion of the court when they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Here the court notes that the paralegal costs were incurred in connection with the “preparation and presentation of electronic evidence, including videos of deposition testimony, exhibits and excerpts from audio recordings, at trial.” Because jurors have come to expect that kind of stuff, the trial court did not abuse its discretion in finding them recoverable as reasonably necessary to the conduct of the litigation.

Affirmed.