May 2017 Update
Summarized below are some of the more important developments included in this update since publication of the May 2016 update.
Subject Matter of Expert Testimony
Expert opinion appropriate. In People v Sotelo-Urena (2016) 4 CA5th 732, the effect of a chronically homeless person's exposure to violence was relevant to the defendant's belief in the need to use lethal force to defend himself and it was error to exclude expert testimony. Similarly, in People v Herrera (2016) 247 CA4th 467, expert testimony was improperly excluded regarding whether the defendant was in a programmatic, dissociative state on the night of a killing. See §2.2.
In Freitas v Shiomoto (2016) 3 CA5th 294, a DMV license suspension proceeding, the reliability of methodology in interpreting raw data obtained from a gas chromatograph was an appropriate subject of expert testimony. See §2.2.
Expert opinion unnecessary. In Christ v Schwartz (2016) 2 CA5th 440, cited in §2.3, expert testimony was not needed to interpret photographic evidence of a car accident; determining the extent of vehicle damage in a two-car collision is within common experience.
In Pipitone v Williams (2016) 244 CA4th 1437, also cited in §2.3, expert testimony was not required to establish whether a doctor violated a statutory duty to report suspected spousal abuse under Pen C §11160.
Two criminal cases cited in §2.3 illustrate that expert testimony may or may not be required when an allegation of excessive force is made. In People v Brown (2016) 245 CA4th 140, it was reversible error to admit expert testimony in a trial for resisting arrest when physical force was used to detain the defendant and the jury could use its common knowledge to assess the reasonableness of the force. In contrast, in People v Sibrian (2016) 3 CA5th 127, expert testimony was properly admitted in a trial for resisting an officer when officers were dealing with a suspected drunk driver who refused to get out of a car late at night in a high crime area, and the officers used a Laser and handcuffs, but not chemical agents, to effect an arrest.
Lay opinion appropriate. In In re Automobile Antitrust Cases I and II (2016) 1 CA5th 127, cited in §2.7, an automobile executive, who attended a meeting with representatives from other manufacturers, was allowed to testify that there was "general support" for an agreement to restrict sales of automobiles from Canada to the United States.
Information Relied on by Expert
Reliance on hearsay. In the landmark case of People v Sanchez (2016) 63 C4th 665, the supreme court distinguished between hearsay that consists of case-specific facts and hearsay comprised of generally accepted background information. An expert may continue to base an opinion on generally accepted background information; however, "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." See §§4.1A, 4.2—4.3, 16.3.
Following Sanchez, an appellate court in People v Stamps (2016) 3 CA5th 988 found that a criminalist's opinion that pills seized were controlled substances based solely on a visual comparison of the pills to pictures on a website relied on inadmissible case-specific hearsay. See §4.3.
Experts and Summary Judgment Process
In Sanchez v Kern Emergency Med. Transp. Corp. (Jan. 13, 2017, No. F069843) 2017 Cal App Lexis 80, a personal injury case, a plaintiff who suffered a head injury during a high school football game alleged that the defendant ambulance company's delay in transporting him to a hospital resulted in his suffering serious brain injuries. In affirming the grant of summary judgment to the defendant, the court of appeal found that the trial court had not abused its discretion in striking major portions of an expert's declaration and that the trial judge had properly exercised his "gatekeeper's" role under Sargon Enters., Inc. v University of S. Cal. (2012) 55 C4th 747. See discussion in §16.3.
In People v Garlinger (2016) 247 CA4th 1185, cited in §4.8, determining the general location of a cell phone based on which sector of a particular cell tower connected to which phone's signal was not a new scientific methodology requiring a Kelly hearing. In addition, in People v Jackson (2016) 1 C5th 269, dog trailing evidence fell outside the scope of Kelly because it was not mechanized and not so foreign to everyday experience that it would be difficult for jurors to evaluate. See §4.9.
Production of Documents at Deposition
As discussed in §10.41, legislation amended CCP §2025.280 by adding subsection (c), requiring a deponent who is required by notice or subpoena to produce electronically stored information to provide a means of gaining direct access to, or a translation into a reasonably usable form of, any electronically stored information that is password protected or otherwise inaccessible.
Summary Judgment Motions
In Perry v Bakewell Hawthorne, LLC (Feb. 23, 2017, S233096) 2017 Cal Lexis 1351, discussed in §§10.5A, 10.24—10.25, and 16.5, the California Supreme Court held that when a trial court determines an expert opinion is inadmissible because the expert witness disclosure requirements of CCP §§2034.010—2034.730 were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised.