January 2013 | Earn one hour of MCLE Credit in General
By Wendy Chang & Frederick J. Ufkes
Chang & Ufkes
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Questions concerning the admissibility of
expert testimony in California civil and criminal litigation have vexed California
trial judges and trial counsel for decades. In the 19 years since the United
States Supreme Court’s adoption of a flexible standard for the admissibility of
expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993) under federal law, the California Supreme Court has declined
numerous requests to revisit its reliance on the less flexible “general
acceptance” test articulated in Frye v. United States, 293 F.1013 (D.C.
Cir. 1923). That reluctance came to an end with the California Supreme Court’s recent
decision in Sargon Enterprises, Inc. v. University of Southern California,
___ Cal.4th ____ (212 DJDAR 15846 (Nov. 26, 2012)), which makes clear that
California trial judges are “gatekeepers” of expert opinion testimony, and that
such expert testimony should be reviewed by the trial court initially for
purposes of foundation, i.e. ensuring that the materials used by the expert in
expressing the opinion are of the type reasonably relied upon by experts in the
field, Evidence Code §801(b), and that the methodology used by the
expert in reaching the opinion avoids conjecture, speculation, or use of information
not contained in the record, Evidence Code §802.
History of expert witness
testimony admissibility in California
The first major pronouncement on scientific
evidence, generally, is the 1923 seminal case of Frye v. United States,
293 F.1013 (D.C. Cir. 1923). On appeal from a trial court’s admission of a deception
test device, the D.C. Circuit established what became the gold standard for
admissibility of expert testimony and scientific techniques in the United
States, adopting a “general acceptance” test. Under the “general acceptance”
test, evidence of a new scientific technique or methodology was inadmissible
until the proponent established that the methodology, technique, or device had
“general acceptance” in the relevant field. Id.
Adopting the Frye rule in People v.
Kelly (1976) 17 Cal.3d 24, the California Supreme Court noted that the Frye rule was generally a conservative one, requiring a consensus in the scientific
community before testimony concerning a new and novel technique or methodology
would be admissible.
“The primary advantage, however, of the Frye test
lies in its essentially conservative nature. For a variety of reasons, Frye was deliberately intended to interpose substantial obstacles to the
unrestrained admission of evidence based upon new scientific principles.”
People v. Kelly, supra., 17 Cal.3d at 32.
The law seemed settled in this area until the
United States Supreme Court’s decision in Daubert in 1993. In Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), (hereinafter “Daubert”), and its sequelae, General Electric v. Joiner 522 U.S. 136 (1997) and Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999), the United States Supreme
Court overruled Frye, indicating that it had failed to survive the
adoption of Federal Rules of Evidence. Daubert, supra., 509 U.S. at
587. The United States Supreme Court held that the Frye “general
acceptance” test failed to address the principal issue of reliability of the
testimony of the expert. In Daubert, plaintiff’s experts had used the
methodology of “meta analysis” to take seemingly disparate studies concerning
the safety of the drug Bendectin and reached the opinion that the plaintiff’s
birth defects were substantially related to his mother’s ingestion of the drug
during her pregnancy. Determining that the methodology was unreliable, and
therefore, not admissible, the Daubert Court stated that the trial judge’s
role was to act as a gatekeeper to ensure the reliability of the expert
testimony based upon certain enumerated, but not exclusive, factors. Id.
at 592-3. These factors included whether or not the opinion was being
developed solely for the purposes of litigation, whether it had it been
independently tested in the scientific community, and the potential for error.
While originally focused on expert medical testimony, the United States Supreme
Court’s subsequent decisions in General Electric v. Joiner and Kumho
Tire Co. v. Carmichael made clear that Daubert’s pronouncement of the
judge’s gatekeeper role applied to all expert testimony.
Meanwhile, in California, the use of the Kelly-Frye “general acceptance” test continued. In People v. Leahy (1994) 8
Cal.4th 587, the California Supreme Court rejected a request to adopt the Daubert “gatekeeper” standard. Retaining Kelly-Frye, the California Supreme
“Kelly was decided in 1976, 11 years after the adoption of the Evidence Code and its provisions governing the
admissibility of expert testimony. (Citation omitted). We were presumably well
aware in Kelly that the Frye “general acceptance” standard was
“absent from and incompatible with” the preexisting California statutory provisions.
Nonetheless, we concluded otherwise and found Frye compatible with those
provisions, which we cited in our opinion. (Citation omitted). No significant
relevant developments have occurred in this state since Kelly was
decided to justify abandoning its conclusion.” People v. Leahy, supra., 8 Cal.4th at 599.
Some appellate courts in California have narrowed
the application of the Kelly-Frye rule in subsequent decisions. For
example, in In Re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558,
the Court of Appeal upheld trial court’s striking of expert witness’
declaration on the basis that it was speculative, unsupported by relevant
scientific data and used an unreliable methodology, stating:
“An expert opinion has no value if its basis is unsound.
[Citations.] Matter that provides a reasonable basis for one opinion does not
necessarily provide a reasonable basis for another opinion. Evidence Code
section 801, subdivision (b), states that a court must determine whether the
matter that the expert relies on is of a type that an expert reasonably can
rely on in forming an opinion upon the subject to which his testimony
relates.’ (Italics added.) We construe this to mean that the matter relied
on must provide a reasonable basis for the particular opinion offered, and that
an expert opinion based on speculation or conjecture is inadmissible.” Lockheed Litigation Cases, supra., 115 Cal.
App. 4th at 564.
In Roberti v. Andy’s Termite and Pest
Control, Inc., (2003) 113 Cal.App.4th 893, the Court of Appeal held that
the Kelly-Frye rule had no application to expert medical testimony,
there concerning causation of autism:
“Under California law, the predicate for application of
the Kelly rule is that the expert testimony is based, at least in some
part, on a new scientific technique, device, procedure, or method that is not
generally accepted in the relevant scientific community. The predicate is not
that the opinion or underlying theory asserted by the expert is itself not
generally accepted in the relevant scientific community or is faulty. Absent
some special feature which effectively blindsides the jury, expert opinion
testimony is not subject to Kelly-Frye.” Id. at 902. Finding that such was not the case
before it, the Roberti court found:
“The medical opinion drawn by plaintiff’s experts
concerning causation of autism clearly does not meet the predicate for the
application of the Kelly rule. Nor did defendant demonstrate that the
methodology used in the studies relied upon by plaintiff’s experts, including
the use of animal studies to extrapolate to affect of a substance on humans, is
in any way novel or unaccepted in the scientific community,
requiring application of the Kelly test…” Id. at 903-904. Notwithstanding the above,
however, the Roberti court also rejected adoption of the Daubert test:
“Unless and until our Supreme Court determines that the Daubert analysis is applicable in California, we will adhere to the rule of People
v. Kelly and its progeny, and refuse to apply a more extensive preliminary
admissibility test as in Daubert to expert medical opinion concerning
causation. In contrast to the Mitchell court’s interpretation of Leahy,
our reading of Leahy instead indicates that the Supreme Court has
rejected the broader federal rule and reaffirmed its adherence to the narrower Kelly rule. (Citation omitted).” Roberti, supra., 113 Cal.App.4th at 906.
This remained the state of the law until November 2012, when the California
Supreme Court spoke unanimously.
California Supreme Court adopts a gatekeeper rule
In Sargon Enterprises, Inc., v. University
of Southern California, the plaintiff patented a dental implant for use in
a reconstructive surgery. In 1996, the plaintiff contracted with the defendant,
University of Southern California School of Dentistry (hereinafter “USC”), to
conduct a five-year clinical study of the implant. In May 1999, the plaintiff
sued, claiming the university had botched the clinical trial, and, as a result,
the plaintiff was unable to complete the trial and market the product to
In the initial jury trial, the jury determined
that USC had breached its contract with the plaintiff, and awarded $433,000 in
compensatory damages after the trial judge had excluded as unreliable the testimony
of plaintiff’s damages expert, James Skorheim. On the plaintiffs’ appeal, the
Court of Appeal determined that the trial court had erred in excluding evidence
of lost profits on the grounds of foreseeability, and remanded the matter to the
trial court for determination of the reasonableness and amount of pecuniary
losses sustained by the plaintiff.
At the second trial after remand, USC again moved
to exclude the testimony of James Skorheim, claiming that his testimony
concerning the foreseeability and amount of lost profits was not of assistance
to the jury, was speculative, and was based upon information not reasonably
relied upon by experts in the field. The trial court conducted an eight-day
evidentiary hearing, at which Skorheim was the primary witness, and issued a
33-page written decision granting the defendant’s motion to exclude Skorheim’s
testimony. In that ruling, the trial judge determined that the information used
by Skorheim in calculating lost profits was not of the kind reasonably
relied upon by experts in the field. The trial judge also noted that the
methodology used was unreliable.
On appeal of this second ruling, by a 2-1
vote, the Court of Appeal reversed the judgment and remanded the matter for a new
trial on lost profits. The Court of Appeal found that the trial court had
abused its discretion in excluding Skorheim’s testimony, noted that the trial
court’s concerns went to the weight of the opinion, not its admissibility, and concluded
that Skorheim’s testimony was better left to the jury to evaluate.
The California Supreme Court granted USC’s
petition for review to determine whether the trial court erred in excluding
Skorheim’s testimony, and held that it did not err: “We conclude that the trial
court has the duty to act as a gatekeeper to exclude speculative expert
testimony. Lost profits need not be proven with mathematical precision, but
they must also not be unduly speculative.” Sargon, supra., ___ Cal.4th
____ (212 DJDAR at 15846).
After a detailed examination of the basis for
Skorheim’s testimony, and the methodology used, the Supreme Court determined
that the trial court’s original decision was the correct one:
“Under Evidence Code section 801, the trial court acts as
a gatekeeper to exclude speculative or irrelevant expert opinion. As we
recently explained, [t]he expert’s opinion may not be based on ’assumptions of
fact without evidentiary support [citation], or on speculative or conjectural
matters. . . . Exclusion of expert opinions that rest on guess, surmise or
conjecture [citation] is an inherent corollary to the foundational predicate
for admission of the expert testimony: will the testimony assist the trier of
fact to evaluate the issues it must decide? (Jennings v. Palomar Pomerado
Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117); People
v. Richardson (2008) 43 Cal.4th 959, 1008; accord People v.
Moore (2011) 51 Cal.4th 386, 405.)” Sargon, supra., ___ Cal.4th ____ (212 DJDAR at
The Supreme Court continued, noting that
section 802 of the Evidence Code, “expressly permits the court to examine
experts concerning the matter on which they base their opinion before admitting
their testimony. The reasons for the experts’ opinions are part of the
matter on which they are based just as is their type of matter. Evidence
Code section 801 governs judicial review of the type of matter; Evidence
Code section 802 covers judicial review of the reasons for the opinion.”
Thus, the Supreme Court found:
“…under Evidence Code sections 801, subdivision (b), and
802, the trial court acts as a gatekeeper to exclude expert opinion 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. Other provisions of law, including decisional law, may also
provide reasons for excluding expert opinion testimony.” Id. at 15854.
The Supreme Court did, however, caution trial
judges to not overstep their authority.
“The trial court’s gatekeeping role does not involve
choosing between competing expert opinions. The high court warned that the
gatekeeper’s focus must be solely on principles and methodology, not on the
conclusions that they generate. (Daubert v. Merrell Dow Pharmaceuticals,
Inc., supra, 509 U.S. at p. 595.)…” Id.
“The trial court’s preliminary determination whether the
expert opinion is founded on sound logic is not a decision on its
persuasiveness. The court must not weigh an opinion’s probative value or
substitute its own opinion for the expert’s opinion. Rather, the court must
simply determine whether the matter relied on can provide a reasonable basis
for the opinion or whether that opinion is based on a leap of logic or
conjecture. The court does not resolve scientific controversies. Rather, it
conducts a ’circumscribed inquiry’ to determine whether, as a matter of logic,
the studies and other information cited by the experts adequately support the
conclusion that the expert’s general theory or technique is valid.” Imwinkelried
& Fagman (supra) [Evidence Code section 802: the Neglected Key to Rationalizing
the California Law of Expert Testimony] 42 Loyola L.A. L. Rev. at 449. (Imwinkelried
& Faigman, supra, 42 Loyola L.A. L.Rev. at p. 449.) The goal of trial court
gatekeeping is simply to exclude clearly invalid and unreliable expert opinion.
(Black et al., Science and the Law in the Wake of Daubert: A New Search for
Scientific Knowledge (1994) 72 Tex. L.Rev. 715, 788.) In short, the
gatekeeper’s role is to make certain that an expert, whether basing testimony
upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert
in the relevant field. (Kumho Tire Co. v. Carmichael, supra, 526 U.S. at
p. 152. Id.
California Supreme Court has now specifically empowered trial courts to act as
“gatekeepers” for expert testimony. In Sargon, by citing with authority
and approval the cases of Daubert, Joiner, and Kumho Tire, in
authorizing a gatekeeper function for trial judges, the California Supreme
Court has opened the door to the persuasive authority and guidance set forth in
extensive federal court jurisprudence surrounding those cases, to assist
California trial court’s in interpreting California Evidence Code §§801(b), and 802 under Sargon. It is now up to trial judges in
California to apply these rules going forward.
Frederick J. Ufkes is a
partner in the Los Angeles office of Hinshaw & Culbertson LLP. A trial
lawyer for 30 years, Mr. Ufkes’ practice includes the defense of product
liability, personal injury and toxic tort cases in federal and state courts. He
is a frequent speaker on issues affecting complex multi-party litigation,
including admissibility of expert testimony, case management strategies and
trial tactics. Wendy Wen Yun Chang is also a litigation partner in the
Los Angeles office of Hinshaw & Culbertson, LLP. She is a certified
specialist in legal malpractice law by the State Bar of California’s Board of
Legal Specialization, and is vice-chair of the State Bar of California’s
Standing Committee on Professional Responsibility and Conduct. She is also a
member of the Los Angeles County Bar Association’s Professional Responsibility
and Ethics Committee. The views expressed herein are their own.