May 2018 Update
Summarized below are some of the more important developments included in this update since publication of the May 2017 update.
Subject Matter of Expert Testimony
Expert opinion appropriate. In Trejo v Johnson & Johnson (2017) 13 CA5th 110, 156, the court held that expert testimony was needed on the risks and benefits of Motrin’s design. See §§2.1–2.2.
In ABM Indus. Overtime Cases (2017) 19 CA5th 277, the court found that analysis of timekeeping and payroll data was the proper subject for expert testimony. See §2.2.
Expert opinion unnecessary. In People v Luo (2017) 16 CA5th 663, 670, expert testimony was not needed to establish the foreman’s negligence in allowing the workers onto a dangerous job site. And the court in DeMara v The Raymond Corp. (2017) 13 CA5th 545 noted that, depending on the circumstances of a particular case, the application of the consumer expectations test may or may not require expert testimony. The fact that a complex product is involved is not determinative—it depends on the defect allegations. See §2.3.
Information Relied on by Expert
The Ninth Circuit found that the district court erred in not allowing the expert to update his report to include relevant scientific developments and in summarily denying a Daubert motion to exclude an opposing expert. City of Pomona v SQM N. Am. Corp. (2017) 866 F3d 1060, 1065. See §§4.58, 4.84G.
In Wendell v GlaxoSmithKline LLC (9th Cir 2017) 858 F3d 1227, 1231, the Ninth Circuit held that doctors at the top of their field with extensive experience with the disease at issue should not have been barred from giving expert opinions on causation based on their principles and methodology. See §4.58.
Reliance on hearsay. New cases applying the landmark decision in People v Sanchez (2016) 63 C4th 665 include People v Malik (2017) 16 CA5th 587, 597 (reasoning of Sanchez also applies to case-specific hearsay used to impeach expert’s testimony during cross-examination); People v Pettie (2017) 16 CA5th 23, 64 (limiting instruction not to consider inadmissible hearsay testimony for its truth not sufficient to mitigate Confrontation Clause violation under Sanchez); People v Jeffrey G. (2017) 13 CA5th 501, 506 (introduction of expert testimony that was rendered inadmissible by Sanchez was prejudicial); People v Roa (2017) 11 CA5th 428 (experts improperly testified about case-specific facts they obtained from investigator’s reports and treated those facts as true to support their opinions). See §4.1A. See also David v Hernandez (2017) 13 CA5th 692, 704 (finding Sanchez objection waived by failure to make hearsay objection), in §14.1A.
Experts and Class Certification
The California Supreme Court has yet to rule on whether the federal cases are to be followed in California when dealing with expert testimony on class certification, but one California court of appeal has held that the gatekeeping analysis in Sargon Enters., Inc. v University of S. Cal. (2012) 55 C4th 747 must be applied to expert testimony offered at class certification because (1) only admissible expert testimony can be considered at class certification and (2) Sargon sets the standard for admissibility. Apple, Inc. v Superior Court (2018) 19 CA5th 1101, 1118. See §§4.49B–4.49C.
Experts and Summary Judgment Process
In DeMara v The Raymond Corp. (2017) 13 CA5th 545, 562, the failure to provide expert testimony to meet each element of the risk-benefit test resulted in reversal of summary judgment. See §16.2.
In Lyons v Colgate-Palmolive Co. (2017) 16 CA5th 463, 467, the expert declaration in opposition to summary judgment created a triable issue as to whether the plaintiff’s use of the defendant’s talcum powder exposed her to asbestos. See §§16.2–16.3.
In YDM Mgmt. Co. v Sharp Community Med. Group, Inc. (2017) 16 CA5th 613, 628, the court found that the opposing expert’s declaration did not create a triable issue of fact; it was “devoid of any explanation or reasoning to support [the expert’s] conclusory opinion.” See §16.3.
In People v Fortin (2017) 12 CA5th 524, 531, the trial court properly excluded Abel test results for sexual interest in children due in part to lack of acceptance by the relevant scientific community. See §4.6.
Court Appointed Experts
In Duran v U.S. Bank Nat’l Ass’n (2018) 19 CA5th 630, 636, the court of appeal appointed an independent expert under Evid C §730 to examine and evaluate the soundness and scientific reliability of the plaintiff’s expert’s statistical survey that was offered to support class certification and, relying in part on that expert’s evaluation and opinion, rejected the survey as biased and insufficiently reliable. See §7.30.
Exchange of Expert Witness Information
As noted in §§10.11–10.12, legislation amended CCP §§1011 and 2034.260 to provide that exchange of expert witness information may occur by serving the other party by any method specified in CCP §1011 or §1013, which includes electronic service.
The failure to adhere to Rule 26(a)(2)’s requirements for disclosure of expert witnesses risks the exclusion of the testimony. See Cripe v Henkel Corp. (7th Cir 2017) 858 F3d 1110, 1112 (attaching treating physicians’ reports to disclosed expert’s report without making required Rule 26(a)(2) disclosures does not turn fact witness into expert for purposes of resisting summary judgment). See §10.49A.
Expert Witness Costs
In Hinrichs v Melton (2017) 11 CA5th 516, 528, the trial court properly exercised its discretion to deny expert witness costs under CCP §998(d). See §10.46A.
In Conservatorship of K.W. (2017) 13 CA5th 1274, 1285, the expert testimony drawn from review of medical and institutional records and discussion with others, not personal contact with the disabled individual, was inadmissible, case-specific hearsay. Although the documents relied on may have been admissible under the business records exception to the hearsay rule, no attempt was made to establish a foundation and none of the documents were offered into evidence. See §13.8A. See also §§4.1A, 4.3.
In Reed v Lieurance (9th Cir 2017) 863 F3d 1196, 1208, the court of appeals found that the police practices expert should have been able to give testimony on whether there was failure to train without veering into improper legal opinions. See §5.11A.
Examination of Expert
In People v Henriquez (2017) 4 C5th 1, 25, the California Supreme Court held that, on cross-examination, the prosecution was entitled to explore the expert’s knowledge of an earlier homicide committed by the defendant in an attempt to discredit the expert’s opinion. See §§15.12, 15.26.