Experts, Standards of Review, and Meta-Evidence

Garner v. BNSF Railway Co., No. D082229 (D4d1 Jan. 4., 2024)

This is a wrongful death case where decedent’s family claims that exposure to diesel exhaust while working as a railroadman caused the non-Hodgkin’s lymphoma that lead to his death. In the run-up to trial, the Company moved in limine to exclude Plaintiff’s general causation experts for failing to satisfy the Sargon standard.

Plaintiffs put up three experts on this point. Generalizing a bit, each testified that diesel exhaust was an established cause of cancer. They pointed to, among other things, epidemiological studies that showed that the exposure could lead to three to four thousand excess cancers per million people, which is clearly significant. But that was cancer in general. None of the experts, however, pointed to any study that linked non-Hodgkins lymphoma, in particular, to diesel exhaust, or that suggested a dosing that could merit causation. But they testified that, more generally, the mutagenic way diesel exhaust acts on human issue merits a conclusion that it can cause cancers that were no just limited to one specific organ. 

The Company pointed out these apparent gaps in the analysis. But it didn’t provide evidence of its own that experts’ reasoning or methodologies were scientifically unsound.

After tentatively accepting the opinions of Plaintiff’s experts, the trial court ultimately excluded them. It found that the gap between the underlying epidemiological evidence and the ultimate conclusions as to general causation was too broad to be bridged by the experts’ opinions. And without the experts, there was no evidence of causation, and thus the case could not go to trial. Plaintiff appealed.

Before getting to the evidentiary issue, the Court of Appeal discusses the standard of review. It recognizes that rulings on evidence, and the admissibility of expert testimony in particular, are generally subject to an abuse of discretion. But, relying on a number of cases, the court says that when an in limine ruling precludes a whole cause of action, it is treated as a nonsuit and reviewed de novo.

But that’s not entirely right. No doubt, the court pulls in language from cases that say, literally, that a motion in limine ruling that excludes all evidence and therefore resolves a whole cause of action is essentially a nonsuit that gets reviewed de novo. But all the cases the court cites deal with circumstances where a trial court decides a legal issue, which then makes all evidence irrelevant and thereby dooms a cause of action. 

The legal issue could be the interpretation of a statute, a contract or case law. It could also be a determination that there’s just not enough evidence to make it to a jury—itself a legal decision that basically a nonsuit. The cases cited all have these kinds of fact patterns. See Kinda v. Carpenter, 247 Cal. App. 4th 1268, 1285 (2016) (on in limine motion, trial court held that evidence was insufficient to get to the jury); McMillin Companies, LLC v. Am. Safety Indem. Co., 233 Cal. App. 4th 518, 529 (2015) (trial court excluded all contrary evidence on a duty issue based on a legal ruling that rendered the evidence irrelevant); Legendary Inv. Grp. No. 1, LLC v. Niemann, 224 Cal. App. 4th 1407, 1411 (2014) (similar); City of Livermore v. Baca, 205 Cal. App. 4th 1460, 1465 (2012) (exclusion of all evidence on the ground that the plaintiff's theory of liability was fatally defective); Dillingham-Ray Wilson v. City of L.A., 182 Cal. App. 4th 1396, 1401 (2010) (trial court interpreted contract as a matter of law and found that interpretation made evidence irrelevant and thus inadmissible); Fergus v. Songer, 150 Cal. App. 4th 552, 570 (2007) (trial court determined that, as a matter of law, attorney fee agreement was voidable and thus that evidence of damages based on it could not go to the jury). But the standard of review in these cases is de novo because the trial courts are fundamentally deciding questions of law, which always get reviewed de novo.

That, however, not the same thing as when a trial court makes an evidentiary ruling that makes certain evidence inadmissible, which then potentially has the consequence that the plaintiff can’t get to a jury. The ultimate significance of a pretrial ruling on a question of the admissibility of evidence should not change the standard of review. Notably, the court doesn’t cite any cases applying de novo review to the exclusion of a causation expert, even when that exclusion is potentially case dispositive. (This recent one, for instance, certainly didn’t.) 

If the evidentiary question is one normally one which is reviewed for an abuse of discretion—a classic example of which is the admissibility of expert testimony, see Sargon Enterprises v. University of Southern California, 55 Cal.4th 747, 773 (2012)—it should be reviewed under that standard, consequences be damned. Then, whether whatever is left is enough to get to a jury is a legal and that question should get reviewed de novo. But reviewing discretionary decisions de novo just because a plaintiff might lose as a result puts a thumb on the scale in favor of a plaintiff because, especially in cases of causation, excluding expert testimony on causation issues is usually case dispositive, but admitting it is generally not. It is completely arbitrary and nonsensical for a standard of review to change based on whether the trial court’s decision was to admit vs. to exclude. The standard of review should turn on the nature of the decision, not its consequence.

(FWIW, I just realized I digressed at length on this point in a post nearly eight years ago. While my memory is imperfect, my point stands nonetheless.)

In any event, moving on to the evidentiary question, the Court of Appeal drills down to the issue of the kind of inference a scientific expert can permissibly draw from underlying source material. As noted, these experts, relying on evidence of increased carcinogenicity in general, concluded that diesel exhaust could cause the specific kind of cancer that killed the decedent. They supported that conclusion with some more testimony explaining why that was a permissible inference, in their fields of expertise, to draw. Like that the kind of pathology caused by exposure to diesel exhaust—mutagenic damage to cellular level DNA—made it reasonable to conclude that the exposure could cause a bunch of different types of cancer. 

So the Court of Appeal concludes that in the absence of any evidence submitted by the Company establishing that that kind of conclusion was an inappropriate one for an epidemiologist to draw from the underlying data, the trial court abused its discretion in excluding the testimony because the inferential gap was too wide.

This is, admittedly, a hard epistemic task. As David Hume explained a couple hundred years ago in An Enquiry Concerning Human Understanding, you can never definitively prove the answer to a question of causation. All you can really do is observe a set of correlations that are significantly close from which an inference of causation can be drawn. So here, the Sargon question is how close does epidemiological statistical data—itself an observation of correlation—need to be to make a methodologically sound inference that a relationship is causal. And even more specifically, what kind of evidence (or law) validates the soundness of that inference.  

Some more extreme facts can illustrate the question. On one hand, say an expert relies on a study of a large population is exposed to some agent in a specific and measurable way. All or nearly all of them develop some rare disease that is almost never seen in the pubic at large. And there’s nothing else about the exposed group that otherwise meaningfully differs from the public. In that case, provided the methods in which the data were collected were sound, the gap between that data and the inference of a causal relationship between the exposure and the plaintiff’s disease isn’t very big at all.

On the opposite end, say the study of a small population correlates exposure a number of different outcomes, which also occur almost as frequently in the unexposed population, the sample was taken from a population that is atypical in some way, and the plaintiff suffers an outcome that is not among the ones measured in the sample. There, the gap between the data and a conclusion of causation is clearly too wide to stand. The fact that a couple of lactose intolerant people get a tummy aches from eating dairy does not justify an inference that ice cream causes pancreatic cancer.

Easy cases like these at the outer limits can likely be resolved as a matter of law or undisputed fact by well-informed judicial common sense. But there is obviously a wide field of grey area in between. And there, the question of “is this a reasonable inference to draw?” seems itself to be a factual question that could itself be a potential subject of expert opinion: Do professionals in the relevant field, employing appropriate methodologies, and outside of litigation, think that, data A rationally merits the more likely than not inference of a causal relationship?

Those situations can turn on a kind of meta-evidence. That is, evidence that, while potentially irrelevant to the merits, goes to a question of whether other evidence is even admissible. Here, that was, to some degree provided by Plaintiff. Its experts testified why it was reasonable to infer causation of non-Hodgkin’s lymphoma from general cancer data concerning exposures to diesel exhaust. On the other hand, the Company didn’t put in anything to the contrary. So that resolves the appeal.

But what if the Company put in evidence that in the practices in field of epidemiology, the inference drawn by Plaintiff’s expert wasn’t a reasonable one to draw? In that case, it seems to me, under Evidence Code §§ 403 and 405(a), as a condition to admitting the testimony, the trial court would be obliged to decide whether, as a matter of fact, a preponderance of the evidence established that the inference was justifiable or the gap was to big. A trial court should not be able to engage in another round of meta-punting on the basis that that question too is a subject of debate within the field.

Reversed.

Reasonable Medical Probability

Kline v. Zimmer, Inc., No. B302544 (D2d8 May 26, 2022)

This is an ancient medical device case where a plaintiff jury verdict was already reversed on an excessive damages issue. It still not over.

Plaintiff in a medical negligence or products liability case needs to prove that his injuries were caused by the allegedly defective act or instrumentality—here a defective hip transplant. To do that he needs to prove that the transplant caused his injury by “reasonable medical certainty.” For that, he needs an expert. And for that expert’s opinion to be admissible it must be expressed to a “reasonable medical probability.” That is really a way of saying that the plaintiff’s doc must be capable of saying that transplant more likely than not was the cause. Otherwise the testimony is inadequate to satisfy the burden of proof.

Plaintiff here did that. Defendant tried put up its own doc, who identified numerous other causes as “possible.” But he couldn’t testify that any particular one of them was the medically probable cause. The trial court held that wasn’t good enough and excluded the expert. Plaintiff won a big verdict.

That was error. The reason why has to do with the burden of proof. Plaintiff needs to prove, by 51/49, that the transplant was a proximate cause. So his expert needs to testify that the medical evidence could meet that test. But Defendant doesn’t bear any burden at all to prove something else was instead. Defendant just needs to stop Plaintiff from reaching 51%. And to do that, it does not require a defense expert to opine that any particular thing was the cause by a reasonable medical certainty. It is enough that Defendant’s expert offers sufficiently reliable testimony that throws doubt on the fact that Defendant’s conduct or product is the cause.

The Court draws an example from a 30 year old First Circuit case that makes it clear. Say the overwhelming scientific consensus is that a particular injury could be caused by A, B, C, or D, each with equal probability. Plaintiff finds an outlier expert who is willing to go all in on A. Testimony about the consensus would certainly be relevant to shoot down Plaintiff’s expert’s claim that A is a sufficient cause, even if nobody in that consensus could testify that something else was the cause by a reasonable medical certainty.

A trickier issue is that to get a reversal based on the exclusion of evidence, the appellant needs to show prejudice—a likelihood of a different result had the evidence been admitted. In this kind of context, that’s a real hard call to make as an epistemic matter. The Court of Appeal here declines to make that call. It instead finds that the error is “structural.” That is, that it fundamentally affected the process of the trial in such a substantial way that, yet, is not susceptible to measurement. The quintessential structural error is the denial of the right to jury trial. 

Exclusion of evidence usually doesn’t cut it for structural errer. But in a medical injury case, to deprive a defendant of any expert testimony at all on the crucial element of causation—an element that can only be proven with an expert—makes it across the line. Quoting a 2009 case, the Court explains that “when a trial court erroneously denies all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven, the error is reversible per se because it deprives the party offering the evidence of a fair hearing and of the opportunity to show actual prejudice.”

Reversed and remanded for a new trial on causation and damages.

Wrong Expert, No Detail, No Fact Issue.

Lowrey v. Kindred Healthcare Operating, Inc., No. A153421A (D1d4 May 18, 2020)

Trial court granted a defense SJ in a wrongful death and medmal case against a nursing home. It found there wasn’t evidence that anything the home did caused or worsened the effects of a stroke suffered by a resident. Resident tried to create a fact issue by putting in a declaration from a doctor. But the doctor was a physical therapist, not a neurologist, and the declaration was barebones and conclusory. 

The Court of Appeal finds that in the absence of foundational evidence about how the doctor was qualified to testify about stroke causation or any detail about how he drew the conclusions he did, the declaration was properly excluded from evidence under the Sargon standard.

Affirmed.

Paging Dr. F....

Belfiore-Braman v. Rotenberg, No. D072015 (D4d1 Jul. 13, 2018)

The Doctors keep a-coming.

Plaintiff is a patient. Defendant, Dr. D., is a doctor who allegedly messed up her sciatic nerve during a hip replacement. Plaintiff has a medical expert, Dr. M. And primary treating physician, Dr. O. Dr. D. has an expert, Dr. S. Dr. O referred Plaintiff to Dr. F., an MRI study guy, who never does a physical exam. He just reads film. Plaintiff subsequently switched primaries to Dr. P. All the docs are on the witness list, but only Dr. M. is a designated as an expert for Plaintiff.

OBJECTION: WRONG!!!!

Webster v. Claremont Yoga, No. B279272 (Aug. 16, 2018)

Customer at a Yoga Studio claims that an Instructor there hurt her back when he put her in various positions. Studio moves for summary judgment.

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. 

Ancient History, Present Evidence

Phillips v. Honeywell Int’l Inc., No. F070761 (D5 Mar. 17. 2017)

A weird thing about asbestos cases is that the same general evidence about the defendant’s actions can get introduced in scores or even hundreds of separate cases. Sometimes even to the point where the practice treatises on asbestos litigation actually address strategies for dealing with specific pieces of evidence. 

Don't Need a Physiscist to Know What a Fender Bender Looks Like ...

Christ v. Schwartz, No. D068579 (D4d1 Aug. 12, 2016)

Appeal from a defense verdict in a low-speed car accident case. Plaintiffs are the victim and her husband, who is suing for loss of consortium. Defendant stipulated to negligence and causation of the accident, so the upshot of the defense verdict is that the jury didn’t believe that the victim’s claimed injuries were legit or that they resulted from the accident. Plaintiffs’ contend on appeal that the trial court erred in admitting photos of the damaged cars and evidence regarding victim’s husband’s extramarital affairs.

On the photos, Plaintiffs claim that, in the absence of expert evidence about the significance of the damage, it was error to admit the photographs as evidence of whether the accident was the cause of Plaintiffs’ alleged injuries. But California law does not require an expert to lay foundation for accident scene photos, so long as the judge in his or her discretion believes that the jury can use the photos to draw conclusions within their ordinary common experience. One outlier decision of another state somewhat suggested that rule, but even in that case a later decision walked it back.

Nor did the court abuse its discretion in declining the exclude the photos under Evidence Code § 352. The photos were relevant to show that the collision was a side impact, the general force of the collision, and to impeach Husband’s testimony that the car was more messed up than the photos showed it to be. Given that relevance, it was not an abuse of discretion to let them in.

So far as the affair goes, it had happened almost a decade and a half before the trial. The trial court tentatively denied a motion in limine to keep it out as minimally relevant to loss of consortium, but reserved a decision for trial. When Defendant’s counsel asked a question on the issue, Victim did not object, but she gave an unresponsive answer addressed to other issues. But then she volunteered a bunch of detail on the issue in response to general questions about the nature of her injuries and the state of her relationship with Husband. And then her lawyer addressed the affair issue in depth on redirect.

The court finds that Plaintiffs forfeited the issue by failing to timely object. A tentatively denied motion in limine that is expressly subject to revisitation does not preserve an objection in the absence of an on the record objection at trial under Evidence Code § 353. And in any event, a party seeking loss of consortium puts the state of his relationship into issue. Although the affair occurred a long time ago, Victim affirmatively brought it up during her medical treatment or her alleged injuries, which suggests that it was at least potentially relevant to her.

And regardless, the record was clear that the jury didn’t believe the victim’s testimony about the source and nature of her injuries. She was thoroughly impeached on these issues at trial, including by clandestine video showing her engaged in activities that were completely inconsistent with the the injuries she claimed to have suffered. Under the circumstances, even if it was error to admit either the photos or the testimony about the infidelity, the error was harmless and insufficiently prejudicial to merit reversal.

Affirmed.

The Defense Calls Alfonso Ribeiro.

Jimenez v. Roseville City Sch. Dist., No. C075366 (D3 May 19, 2016)

This personal injury case doesn’t offer much insight on civil procedure. It does, however, involve the testimony of a break dancing expert, FWIW.

Sargon v. Asbestos Litigation Science

Davis v. Honeywell Int’l, No. B256793 (D2d4 Mar. 3, 2016)

This case addresses the admissibility of expert testimony on an issue that likely comes up in many of the wave of asbestos cases that are currently working their way through California courts. The testimony is based on the “every exposure” theory. The gist of the theory is that asbestos is so toxic that every exposure to it beyond the background level present in the ordinary atmosphere can potentially be a substantial factor in causing mesothelioma. Some states have rejected expert testimony on the theory, others have not. The court here finds that the testimony is sufficiently reliable under the relatively new Sargon standard, which permits courts to reject expert 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.” According to the court, while there isn’t any scientific consensus on the theory, there is enough scientific support on the side of the every exposure theory that it should not be precluded as too unreliable for a civil trial.

Affirmed.