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.

The Epistemology of Expertise

Strobel v. Johnson & Johnson, No. A159609 (D1d4 Oct. 21, 2021).

Since I became a lawyer, there have been two things I have always gone out of my way to avoid having any understanding of—ERISA and asbestos. This case deals with the latter. But it’s got an interesting evidentiary issue. So I’ll muddle through despite all the death and mineralogy. Just don’t tell anyone.

The main issue is about experts and hearsay. If you think about it, what we consider to be expertise is often largely a compilation of hearsay. We read lots and lots of books and sooner or later we know some stuff. I know what happened in Brown v. Board of Education because I read the opinion and commentary about it, not because I was in the courtroom observing with firsthand personal knowledge. And I know what’s in Code of Civil Procedure because I read my gold book and Witkin, not because I sat with the Assembly and watched the Governor sign the bills. And so it is with the kinds of folks who offer opinion testimony about whether some product had asbestos in it in 1964. 

If experts can’t testify to some hearsay, they could often offer little more than their unadorned opinions, which would not be very useful to the trier of fact. On the other hand, an expert shouldn’t be used as a vehicle to smuggle otherwise inadmissible hearsay into the jury box. The California Supreme Court addressed this issue in a criminal case called People v. Sanchez, 63 Cal. 4th 665, 670 (2016). 

In Sanchez, the Court explained that under Evidence Code §§ 801(b) and 802, an expert could provide “testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field” without running afoul of the hearsay rule. But “[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay.” 

So in Sanchez, the expert’s testimony that he relied on someone else’s having designated the defendant as a gang member was inadmissible hearsay that should not have been admitted into evidence. Later cases illustrate that the distinction lies around whether the alleged hearsay is the kind of non-case-specific background material that an expert in the field would ordinarily rely on. Compare People v. Veamatahau, 9 Cal. 5th 16, 26 (2020) (reliance on database to identify pill based on marking admissible) with People v. Valencia, 11 Cal. 5th 818 (2021) (expert’s testimony that defendant had committed prior offenses qualifying for enhancement was inadmissible hearsay).

Here, in support of his opinion that some mid-century baby powder contained asbestos, the plaintiff’s expert offered declaration testimony about testing of historical samples of the same powder at issue conducted by some other expert who did not testify in the case. The court here says that runs afoul of Sanchez. You can’t use an expert’s ability to testify on what he or she relied on to sneak in opinion testimony from some other undesignated expert who is not subject to cross.

The Court holds, however, that even without the hearsay, the expert relied on enough reasonable material to apply his expertise to submit an opinion that, if believed, could support a finding that there was asbestos in the power. So his declaration was adequate to defeat summary judgment.

Reversed.

The Wrong Remedy

Pina v. Cnty of L.A., No. B285630 (D2d4 Aug. 7, 2019)

You can’t call expert witnesses at trial if you failed to designate them and offer them up for deposition. There’s one exception that rule. Code of Civil Procedure § 2034.310 permits a party to call an undesignated expert to “impeach the testimony of an expert witness” called by the other side. But in this context “impeach” means only to testify to the falsity or nonexistence of some fact on which impeached expert relied. The statute expressly prohibits an undisclosed expert from contradicting the impeached expert’s opinion. See § 2034.310(b).

Here, the trial court permitted an undisclosed expert to “impeach” the plaintiff’s expert by contradicting his opinion testimony on causation. The supposed justification for that was that the expert relied on discovery material Plaintiff produced too late in the game for Defendant’s disclosed expert to incorporate into his opinions. That was indeed probably a good excuse to let Defendant augment its disclosure with an additional expert or amend it to address additional topics. See §§ 2034.610, 2034.620. But it was not a justification for an undisclosed expert to give improper “impeachment” testimony that is expressly prohibited by § 2034.310(b). And since admitting the testimony was clearly prejudicial, a new trial is merited.

Reversed.

Bring on the Sandbag

Du-All Safety, LLC v. Superior Court, No. A155119 (D1d2 Apr. 18, 2019)

The Code of Civil Procedure anticipates two rounds of expert disclosure: an initial round and then a supplemental round. In the supplemental round, parties can designate experts on topics that other parties designated in their initial rounds. But there’s an important caveat set out in a case called Fairfax v. Lords: No sandbagging. On a topic that the parties have “every reason to anticipate” will require expert testimony, the parties don’t get to hold back and wait to disclose only as a supplemental. 

Alpine Esoterica

Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, No. C082306 (D3 Jul. 18, 2018)

Plaintiff in this case suffered some pretty gruesome injuries when she skied into a snow-grooming tiller being pulled by a snowcat. But the trial court granted summary judgment on a primary assumption of risk theory, reasoning that hitting a grooming snowcat is an inherent risk of skiing, and because the evidence didn’t support gross negligence. In opposition to the latter point, plaintiff proffered the declarations of several purported expert witnesses, who asserted that driving a snowcat with a grooming tiller on an open slope was an extreme departure from the standard of care.

Expert testimony has limited utility on the assumption of risk doctrine. Most of the issues—whether the activity is an active sport, its inherent risks, and whether defendant has acted to increase the risks beyond the inherent ones—are treated as questions of law. That said, courts have discretion to receive expert testimony to inform the factual basis for those legal decisions, particularly when the activity at issue and its risks are outside the realm of ordinary experience. 

Problem here, though, is that the experts’ declarations weren’t useful to that exercise. While opining that the standard of care was grossly breached in the context of the facts of the case, they did not actually set out what the industry standards were so that the court could make a comparison. As the Court of Appeal explains: “The problem with plaintiffs’ argument is that the experts’ declarations did not inform the court on the customary practices of the esoteric activity of snowcat driving.” (quotations omitted).

Affirmed.

The Law Is Not Evidence.

Contractors’ State Licensing Bd. v. Superior Court,  No. A153684 (D1d1 May 9, 2018)

An electrical contractor is in a disciplinary proceeding with Contractors’ State License Board. That’s before an ALJ. But Contractor sued the Board in superior court for declaratory relief, seeking definition of some terms as used in the Labor Code. Contractor noticed the depo of the head of the Board, contending that he could be questioned about the Board’s working definitions of those terms. The Board moved to quash, arguing that the testimony was irrelevant and, in any event, Contractor was seeking an inappropriate apex deposition of a government official. The superior court denied the motion. But the Board took a writ. 

Generally, the heads of government agencies are not subject to deposition in their official capacities. There are, of course, exceptions. The principal one is when the official is a percipient witness with factual information that can’t be gleaned through other sources. That, quite clearly, isn’t satisfied when a party wants to ask the official what he thinks the law means. What an agency head—or anyone else for that matter—thinks the law means is not evidence.

Just like you don’t establish legislative history by deposing individual legislators, you don’t establish regulatory history or administrative construction by deposing agency officials. As the court explains here, Contractor “is not permitted to ask agency officials how they personally interpret statutes administered by the Board, since their personal views are irrelevant to the purely legal issue of statutory construction.”

Writ granted.

Indeed, the same point—that various individuals’ beliefs about what a law means is not evidence—applies equally to party witnesses and experts. Viz., getting the defendant’s PMQ to admit in a depo that he thinks the law is red when the statute says it is green does not make the law any redder than it is. And just because some law professor or revolving-door government type will be happy to take your client’s money to sign an “expert” declaration attesting to what his professorship thinks the law means, that does not make his testimony admissible or relevant to anything. So try and resist the urge, however hard it might be, even when the other side does it. That’s what amicus briefs are for.

Expert's MSJ Declaration Needs to Engage to Be Admissible.

Sanchez v. Kern Cnty. Med. Transp. Corp., No. F069843 (D5 Feb 2, 2017)

Plaintiff is a severely concussed high school footballer. He claims that the ambulance crew who transported him to the hospital were grossly negligent in taking too long, exacerbating his injuries. The Ambulance Company obtained summary judgment based on a lack of evidence that whatever additional time was taken was not a cause of any increase in the severity of his injuries.

Key to the grant of summary judgment was that the trial court sustained several objections to the declaration of Plaintiff’s medical expert. Evidentiary objections to summary judgment are often made, but infrequently ruled upon. But the court did so here. In doing so, it applies the same standard as it would were the expert testifying at trial.

Mostly, the objections were granted because the testimony was too conclusive and speculative. He did not specially apply the factual evidence to his analysis, did not explain how the relevant literature set out standards applicable to the facts of the case, and did not so much as review the (apparently much more detailed) medical expert evidence submitted with the Hospital Company’s motion. Indeed, the declaration essentially assumed facts that were unsupported by, or contrary to, evidence in the record about the historical events related to Plaintiff’s injury and transport.

Plaintiff claims, however, that an expert declaration in an MSJ opp doesn’t need to be as detailed as actual trial testimony. But the authorities he relies on did not entail expert declarations that made unsupported factual assumptions. Nor did they involve declarations from moving parties showing that, based on the current literature, the assumptions made by the expert were unsupported and speculative. When that happens, the opposing expert needs to come up with some actual analysis of the application of the standards relied on by the moving party’s expert. It needs to either show some dispute in the relevant literature or in the way it applies to the facts of the case. Conclusory opinions aren’t enough to create disputes when the moving party puts forth legit expert evidence that, if credited, would negate an element of the claim.

By “consider[ing] a significantly incomplete universe of information” Plaintiff’s expert failed to render an opinion “based on matter ... that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” Evid. Code § 801(b). Thus the opinions were appropriately excluded. And in their absence, there were no disputed facts that merited denying summary judgment.

Affirmed.

SJ Evidence Rulings Get De Novo Review

Pipitone v. Williams, No. H041468 (D6 Feb. 23, 2016)

The facts of this wrongful death case are complicated, but they essentially entail a husband’s killing his wife in a domestic dispute. Plaintiff is the Wife’s mother. One defendant is the husband’s father, who is also a doctor, who happened to treat the wife when she suffered an earlier injury that was later discovered to be the result of a prior incident of domestic abuse. Although the Doctor/Father/Defendant claimed not to know that at the time. The other defendant is another doctor who treated the Wife/Decedent for the same earlier injury. The trial court granted SJ on duty and causation.

Designate or Die

Perry v. Bakewell Hawthorne, LLC, No B264027 (D2d2 Feb. 3, 2016).

In opposition to one Defendant's motion for summary judgment in a premises liability case, Plaintiff submitted some expert declarations on the standard of care. Problem is that another Defendant had previously served a timely demand for exchange of expert information under Code of Civil Procedure § 2034.210 on all parties, but Plaintiff didn’t timely designate any experts. Which led the trial court to exclude them under § 2034.300, resulting in the SJ motion being granted.

The Court of Appeal rejects two arguments that the exclusion of the experts was error. First, the fact that the demand was served by a different defendant was of no moment. As the current version of § 2034.210 makes clear, once any party serves a demand, all parties have an obligation to exchange expert information, regardless of who made the demand. 

Second, the court rejects the argument that § 2034.300 does not merit the exclusion of expert testimony submitted in connection with summary judgment, as opposed to trial. Although, most of the time the designation date will fall after summary judgment has been briefed, that does not mean that § 2034.300’s rule of exclusion does not apply in those instances where the designation date comes first. Section § 2034.300 is generally addressed in terms of exclusion of expert evidence, not just at trial.

Affirmed.

A $138 Mistake.

King v. California, No. B257676 (D2d1 Nov. 18, 2015)

This is an appeal of a verdict in a civil rights case. A jury awarded damages against some CHP officers it found to have unreasonably searched the plaintiff. Most of the opinion deals with civil rights stuff like the sufficiency of the evidence of unreasonableness under the Fourth Amendment and qualified immunity. The court does, however, address two minor procedural points.

First, it affirms the exclusion of expert testimony from a police policy and practice expert on relevance grounds. The expert offered testimony about CHP policy, but plaintiff didn’t sue the officers for violating policy. He sued them for violating the Fourth Amendment. And since the court didn’t need some expert say what the Fourth Amendment means, the testimony was properly excluded.

The court also affirms a very small—$138—award of economic damages over a claim of inconsistent verdicts. The jury had found no liability on battery, excessive force or similar theories, but it did find the search and seizure were unreasonable. The $138 represented plaintiff’s medical expenses incurred as a result of allegedly being roughed up during the search. The jury was instructed (without objection from defendants) that Plaintiff was entitled to compensation due to any harm incurred by the officers. Based on those instructions, it was not unreasonable or in for the jury to award the expenses as damages, even if it found no liability on claims more commonly associated with compensation for physical injuries. While the court here intimates that the instructions might have been problematic, nobody challenged them. So a denial of a new trial on inconsistency grounds would be upheld because the verdict was entirely consistent with the charge given to the jury.

Affirmed in relevant part.

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.

Indemitee Not Saddled with Underlying Plaintiff's Crappy Expert

National Union Fire Ins. Co. of Pittsburgh, PA v. Tokio Marine & Nichido Fire Ins. Co., Bo. B244899 (D2d5 Feb. 4, 2015)

Two co-defendants in a personal injury case—a manufacturer and a retailer—settled for a combined $6.6 million on the eve of trial. Now their insurers are slogging out the subrogation and indemnity issues. On a motion in limine, the trial court limited the retailer’s carrier—who was trying to establish that the product was defective—to presenting to the theories of defect presented by plaintiff’s expert in the underlying PI case. Those theories weren’t very compelling—the retailer’s expert refused to adopt them. So, after the trial court refused to permit the expert to testify about other product defect theories, it nonsuited the retailer and entered judgment in favor of the manufacturer’s insurer.

The court of appeal reverses. When an insurer settles a personal injury claim and then purses a third-party claim indemnity claim against a co-defendant’s insurer, no authority justifies limiting the indemnity plaintiff to the underlying plaintiff’s expert evidence in proving fault. The additional expert evidence was relevant to the question of comparative fault and the expert’s qualifications were unchallenged. The trial court thus erred. And its error was “undoubtedly prejudicial” because it resulted in depriving the retailer’s insurer of any evidence that the true fault was that the product was, in fact, defective.

Reversed.

No, No Puede!

Velasquez v. Centrome, No. B247080 (D2d8 Jan. 30, 2015) 

This is a toxic tort case. Plaintiff claims that workplace exposure to diacetyl—a chemical that smells like butterscotch or cheap California chardonnay—caused him severe lung injuries. The main issue in dispute is whether plaintiff is entitled to recover damages for the cost of a future lung transplant. 

2,764 Words on Inconsistencies in the Jurisprudence of Expert Disclosure. And Some Other Stuff . . .

Staub v. Kiley, No. C071500 (D3 June 16, 2014)

This med-mal case addresses the expert witness disclosure process under Code of Civil Procedure § 2034.010, et seq. Rather frustratingly, it creates a split of authority with another case from the same district. The two cases were decided within a day of each other, although this case was not ordered published until a month later. Worse, the justice who authored this decision joined the opinion in the previously published case. So we don’t just have an inter-district, an inter-division, or even an intra-division split. It’s a split between two opinions joined by the same justice over a two-day period. By publishing an opinion logically irreconcilable with its own prior published opinion, without so much as recognizing the conflict, the court does a disservice to litigants and trial judges throughout the state, who will be left to muddle through the inconsistent results.