Use of Texts on Expert Cross

Paige v. Safeway, Inc., No. A159731 (D1d3 Feb. 10, 2022)

Plaintiff slipped and fell in a rainy Safeway parking lot. She contends that Safeway and its contractors used the wrong kind of paint on the lot’s crosswalks—too slippery. Safeway puts up an expert who testifies that the paint was up to snuff. At his depo, the expert admits that industry standards promulgated by an outfit called ATSM are reliable, albeit not mandatory, sources of authority on transportation design. But at trial, the court granted an in limine precluding Plaintiff from crossing the expert on the ATSM standard because the expert didn’t consider or rely upon the standard in formulating his opinion. The court believed letting the standard come in on cross was an effort to smuggle improper opinion evidence into the record.

That was error. Under Evidence Code § 721(b), cross of experts using a text or publication in the relevant field is limited to three circumstances: (1) the expert referred, considered or relied upon it; (2) it was been admitted into evidence; or (3) it has been established as “a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.” If admitted, parts of the publication can be read into the record, but the text itself does not come in as an exhibit. So here, since the expert himself admitted the standard was a reliable authority during his deposition, there was foundation to permit cross under (3).

But although that was error, it was harmless. Crucially, Plaintiff did not put up an expert of her own. And she did not come forward with any evidence that the ATSM standard was, essentially, a mandatory standard of care. So given all the evidence presented by Safeway—including the testimony of its expert and various of its contractor’s employees with significant parking lot painting experience—the Court of Appeal declines to find that, even had the cross been permitted, there would have been a reasonable probability that a different result would have been reached.

Affirmed.