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. 

But there are two kinds of THC that show up in a pee test. There’s hydroxy or “active” THC, which is a form of the chemical that can actually cause impairment. And then there’s carboxy or “inactive” THC, which is a metabolic byproduct with no pharmacological effect and whose presence in urine does not significantly correlate with impairment—all it proves is that the person likely smoked some marijuana at some point in time. The test here showed a concentration of THC, but not which form of the chemical was present.

Trucker’s expert tried to get around that by combining it with witness observations that, when Plaintiff got to the hospital, he had high blood pressure, rapid breathing, a fast pulse, and some memory loss, which she said showed that Plaintiff could have been high during the accident. Of course, those symptoms are also pretty much consistent with the physiological aftermath of having just driven a minivan broadside into a truck at 45 miles per hour.

To keep the testimony out, Plaintiff put up an expert who explained that the test results weren’t meaningful, and an e-room treating doc who testified that when Plaintiff got to the hospital, there was no observed evidence that Plaintiff was intoxicated. The trial court excluded the Trucker’s expert. After a Plaintiff verdict, Trucker appeals.

The Court of Appeal explains that the question is controlled by the gloss that the Supreme Court put on Evidence Code § 801 in Sargon Enterprises, Inc. v. University of Southern Cal., 55 Cal.4th 747, 770 (2012). Under Sargon testimony is inadmissible when it is based on speculation or conjecture, including when “there is simply too great an analytical gap between the data and the opinion proffered.” 

Based on the data here, the trial court didn’t err by finding that Trucker’s expert’s proposed testimony that Plaintiff was high when the accident occurred was too speculative. The test performed could not distinguish between active and inactive THC. While some statistical data supported the fact that a positive measurement of the extent measured in plaintiff would likely contain some active THC, there was no basis whatsoever to say how much. And without that, the expert had no nonspeculative basis from which to conclude that Plaintiff was actually impaired when the accident occurred.

Finally, the court here notes that the trial court didn’t abusive its discretion for declining to hold an evidentiary hearing on the admissibility issue under Evidence Code 402, because Trucker never requested one.

The court goes on to affirm some damages issues as supported by substantial evidence.

Affirmed.