Esparza v. Safeway, Inc., No. B287927 (D2d4 as modified June 28, 2019)
Having bobbed and weaved their way to get their class certified, Plaintiffs in this wage and hour case have a problem. Their class cert arguments were based on the idea that they did not need to show how many meal breaks were missed by each class member, since that would be subject to individual proof. Instead, they put up a theory that there was a “market value” to a job without a meal break and that that value was captured by Employer and thus a legit target for restitution under the UCL. It’s a less obvious theory than “I missed 42 meal breaks,” but it is at least theoretically more capable of classwide proof.
That is, until it comes time to prove it.
Showing posts with label expert opinion. Show all posts
Showing posts with label expert opinion. Show all posts
Friday, June 14, 2019
Wednesday, January 30, 2019
Need Some Facts Here.
Fernandez v. Alexander, No. B283949 (D2d8 Jan. 28, 2109)
Medmal case where Plaintiff says her Ortho was negligent by recommending a cast when surgery was called for, which led to some bone callus forming and a deformation of her wrist. Ortho moved for summary judgment on, among other things, causation. Ortho’s expert’s declaration—which Plaintiff didn’t object to—said that the deformation was an equally likely result with either a cast or a surgery. Plaintiff’s expert’s declaration said, without additional detail, that Ortho’s decision “caused Plaintiff’s further deformity of her left wrist.” Ortho objected on lack of foundation. The trial court overruled the objection but granted summary judgment nonetheless.
The Court of Appeal affirms. A reasoned expert declaration can give rise to a disputed fact issue meriting the denial of summary judgment. But a wholly conclusory declaration of opinion has no evidentiary value. So Plaintiff failed to meet her burden.
Affirmed.
Medmal case where Plaintiff says her Ortho was negligent by recommending a cast when surgery was called for, which led to some bone callus forming and a deformation of her wrist. Ortho moved for summary judgment on, among other things, causation. Ortho’s expert’s declaration—which Plaintiff didn’t object to—said that the deformation was an equally likely result with either a cast or a surgery. Plaintiff’s expert’s declaration said, without additional detail, that Ortho’s decision “caused Plaintiff’s further deformity of her left wrist.” Ortho objected on lack of foundation. The trial court overruled the objection but granted summary judgment nonetheless.
The Court of Appeal affirms. A reasoned expert declaration can give rise to a disputed fact issue meriting the denial of summary judgment. But a wholly conclusory declaration of opinion has no evidentiary value. So Plaintiff failed to meet her burden.
Affirmed.
Friday, February 2, 2018
Sargon, Take Me Away!
Apple Inc. v. Superior Court, No. D072287 (D4d1 Jan. 29, 2018)
Generally speaking, plaintiff who moves to certify a class needs to support the motion with admissible evidence to show numerosity, commonality, etc. Sometimes that evidence takes the form of expert opinion. And when it does, the opinion needs to hold up the admissibility standard for expert testimony. Since 2002, that means the standard from Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (2002), in which the California Supreme Court led us out of the wilderness of the Frye rule and finally held that trial courts need to screen out expert testimony of dubious methodological reliability. That seems pretty obvious, and that’s the way it’s done in federal court, where the analogous Daubert standard has been applied at the class cert stage forever. Which is probably why the Court of Appeal stepped in to grant a writ here.
Writ granted.
Generally speaking, plaintiff who moves to certify a class needs to support the motion with admissible evidence to show numerosity, commonality, etc. Sometimes that evidence takes the form of expert opinion. And when it does, the opinion needs to hold up the admissibility standard for expert testimony. Since 2002, that means the standard from Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (2002), in which the California Supreme Court led us out of the wilderness of the Frye rule and finally held that trial courts need to screen out expert testimony of dubious methodological reliability. That seems pretty obvious, and that’s the way it’s done in federal court, where the analogous Daubert standard has been applied at the class cert stage forever. Which is probably why the Court of Appeal stepped in to grant a writ here.
Writ granted.
Thursday, August 24, 2017
How High? Who knows?
David v. Hernandez, No. B270133 (D2d6 July 25, 2017)
Plaintiff in a car crash case, who was pretty badly hurt when his minivan hit a truck pulling a uey on the PCH, tested positive for THC when taken to the hospital. The Tucker wanted to get that into evidence as proof that Plaintiff was impaired, and thus at least partially at fault for the accident.
Plaintiff in a car crash case, who was pretty badly hurt when his minivan hit a truck pulling a uey on the PCH, tested positive for THC when taken to the hospital. The Tucker wanted to get that into evidence as proof that Plaintiff was impaired, and thus at least partially at fault for the accident.
Tuesday, June 14, 2016
The Downside of Ignoring in Limine Rulings
Osborne v. Todd Farm Serv., No. B260280 (D2d6 May 2, 2016)
Plaintiff was injured when an allegedly defective hay bale she was standing on fell apart. She sued two Defendants—the Supplier and a company she claimed had manufactured the bale. None of the records in the case identified the source. And while there are apparently features of hay bales that would clue one into where they were manufactured, that would require expert testimony. Plaintiff, however, didn’t timely disclose a hay source expert under Code of Civil Procedure § 2034.260. She instead waited and designated herself as a “supplemental” expert under § 2034.280. But as Fairfax v. Lords, 138 Cal. App. 4th 1019 (2006) explains, that’s a no-no. You can’t sandbag in disclosing experts as “supplemental” if you had every reason to anticipate that they would be needed in at the time of the original disclosures. So the trial court struck her designation.
Plaintiff was injured when an allegedly defective hay bale she was standing on fell apart. She sued two Defendants—the Supplier and a company she claimed had manufactured the bale. None of the records in the case identified the source. And while there are apparently features of hay bales that would clue one into where they were manufactured, that would require expert testimony. Plaintiff, however, didn’t timely disclose a hay source expert under Code of Civil Procedure § 2034.260. She instead waited and designated herself as a “supplemental” expert under § 2034.280. But as Fairfax v. Lords, 138 Cal. App. 4th 1019 (2006) explains, that’s a no-no. You can’t sandbag in disclosing experts as “supplemental” if you had every reason to anticipate that they would be needed in at the time of the original disclosures. So the trial court struck her designation.
Tuesday, April 1, 2014
Yes, Forthwith. But to Whom?
Lewis v. City of Benecia, No. A134078 (D1d1 Mar. 26, 2014)
This is a post-trial appeal in a sexual harassment and retaliation case with the kind of a fact pattern that HR is always warning you about. Two individual defendants won summary judgment and a third, the city, prevailed at trial. The jury’s special verdict found that plaintiff had established three of the elements on his retaliation claim against the city, but that he had not established that the city was the proximate cause of his injury. In the course of reversing and remanding as to the city and one individual and affirming as to the other, the court of appeal deals with an evidentiary sanctions issue and an interesting issue about partial trials on remand.
This is a post-trial appeal in a sexual harassment and retaliation case with the kind of a fact pattern that HR is always warning you about. Two individual defendants won summary judgment and a third, the city, prevailed at trial. The jury’s special verdict found that plaintiff had established three of the elements on his retaliation claim against the city, but that he had not established that the city was the proximate cause of his injury. In the course of reversing and remanding as to the city and one individual and affirming as to the other, the court of appeal deals with an evidentiary sanctions issue and an interesting issue about partial trials on remand.
Friday, December 20, 2013
Why Write Fifty Pages but Decline to Publish?
Asahi Kasei Pharma Corp. v. Actelion Ltd., No. A133927 (D1d5, as modifed Jan. 16, 2013)
This is a very long and detailed opinion that is well worth reading if you litigate business torts. It addresses, among other things: instructional sanctions for failure to timely produce discovery; what to do when an expert relies on materials that are not produced because he is no longer able to obtain them; the requirement that hearsay evidence submitted for non-hearsay must be relevant as to those specific issues; hearsay exceptions for the effect on the listener, lay opinion in issues of law; and the sufficiency of the evidence on several damages issues. Unfortunately, the discussion on all of these issues (more than 50 pages of it) is contained in sections of the opinion that the court declines to publish. The only published section affirms the trial court—in a cogent discussion that comprehensively reviews the case law—on some instructional issues regarding the elements of intentional interference with contract, the Applied Equipment rule that a defendant can’t interfere with its own contract, and the justification defense.
Affirmed.
Postscript: On a publication request by a nonparty under Rule of Court 8.1120, the court published two subsections on the sufficiency of the evidence of lost profits. The rest of the opinion, however, remains unpublished.
This is a very long and detailed opinion that is well worth reading if you litigate business torts. It addresses, among other things: instructional sanctions for failure to timely produce discovery; what to do when an expert relies on materials that are not produced because he is no longer able to obtain them; the requirement that hearsay evidence submitted for non-hearsay must be relevant as to those specific issues; hearsay exceptions for the effect on the listener, lay opinion in issues of law; and the sufficiency of the evidence on several damages issues. Unfortunately, the discussion on all of these issues (more than 50 pages of it) is contained in sections of the opinion that the court declines to publish. The only published section affirms the trial court—in a cogent discussion that comprehensively reviews the case law—on some instructional issues regarding the elements of intentional interference with contract, the Applied Equipment rule that a defendant can’t interfere with its own contract, and the justification defense.
Affirmed.
Postscript: On a publication request by a nonparty under Rule of Court 8.1120, the court published two subsections on the sufficiency of the evidence of lost profits. The rest of the opinion, however, remains unpublished.
Thursday, November 7, 2013
There Goes My (Smoking) Gun ...
Nevarrez v. San Marino Skilled Nursing & Wellness Centre, No. B235372 (D2d4 Nov. 4, 2013)
This is an appeal after a jury trial that awarded plaintiff almost $4.4 million in damages stemming from allegations of negligence, elder abuse, and statutory violations at a nursing home. As relevant here, the court of appeal upheld challenges to two jury instructions, but reversed on two theories of liability because the trial court abused its discretion in admitting prejudicial evidence regarding prior regulatory violations at the facility. In doing so, it missed an opportunity to clarify the law of evidence.
This is an appeal after a jury trial that awarded plaintiff almost $4.4 million in damages stemming from allegations of negligence, elder abuse, and statutory violations at a nursing home. As relevant here, the court of appeal upheld challenges to two jury instructions, but reversed on two theories of liability because the trial court abused its discretion in admitting prejudicial evidence regarding prior regulatory violations at the facility. In doing so, it missed an opportunity to clarify the law of evidence.
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