Construction Law Update

February 10, 2005 ; Issue 1

A Message from the Partners

Below is a summary of a new case regarding the admissibility of expert testimony. This case represents a step forward for the California Courts in keeping ill prepared experts from testifying as to "junk science".  Although it does not adopt the more stringent Federal court Daubert standard, it does give the trial courts something to work with to act as a "gate keeper".  It is particularly applicable in cases where plaintiffs are alleging exposure to mold. Please feel free to contact us should you have any questions.

Thank you.
Kyle Kring

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LOCKHEED LITIGATION CASE

On January 31, 2005, the California Court of Appeal issued a decision concerning the admissibility of expert testimony in California courts.  The Plaintiffs in the case sought damages for injuries that allegedly resulted from exposure to toxic chemicals.  The trial court excluded expert testimony that Plaintiffs had attempted to introduce to support their theory that exposure to the chemicals caused their injuries, and the court subsequently dismissed the complaint. Plaintiffs’ expert relied extensively on epidemiological studies to support his opinion regarding causation. Each of the studies he relied on dealt with multiple solvents, including solvents that were not at issue in the case. The trial court concluded that those studies provided no reasonable basis for an opinion that any one of the solvents at issue in the case could have caused disease.

The Court of Appeal affirmed the trial court’s decision, holding that the lower court properly exercised its discretion under Evidence Code 801(b) in excluding the expert testimony. In arriving at its holding, the court interpreted Evidence Code 801(b) to require that the matter relied upon by an expert in producing an expert opinion afford a reasonable basis for the particular opinion. It further noted that an expert opinion based on speculation or conjecture is inadmissible.  The court stated that when determining whether matter relied upon by an expert in forming an expert opinion is sufficient to form a reasonable basis for the opinion, a court’s analysis should be limited to reviewing the matter relied on and understanding the matter to the extent necessary to determine whether it can provide a reasonable basis for the expert’s opinion. In conducting this analysis, a court may neither substitute its own opinion for the opinion, presume to be an expert, nor consider the probative value of the expert opinion. The court’s role merely involves determining whether the matter relied on by the expert offers a reasonable basis for the expert’s opinion, or alternatively, whether the opinion is based on a leap of logic, conjecture or artifice.

The Court of Appeal concluded that the trial court properly followed the standard set forth above. It noted that the trial court first discussed each individual category of materials relied upon by the expert (epidemiological studies, animal studies, case reports, etc.) and determined none provided adequate support for the expert’s theory regarding causation. The trial court then considered whether the materials, observed collectively, provided a reasonable basis for the expert’s opinion with respect to each chemical at issue and each illness, and concluded they did not.

More specifically, the trial court concluded that an expert can rely on an epidemiological study in forming an opinion that a toxic agent is capable of causing a disease only if the study shows a relative risk of at least 2.0 (twice the incidence in normal people). The Court of Appeal concluded that this conclusion was error and that a court cannot exclude an epidemiological study from consideration solely because the study shows a relative risk of less than 2.0.  However, they found the error was not prejudicial because the expert did not adequately explain why the Animal Studies, Case Reports and Toxics Registry supported an opinion of causation.The Court of Appeal was careful to express no opinion as to whether an expert opinion based solely on an epidemiological study showing a relative risk of less than 2.0 can be sufficient to support a finding of causation.

Thus, the Court of Appeal makes it clear that when evaluating the admissibility of an expert opinion under Evidence Code 801(b), courts must not only determine whether the scientific literature the expert relies on in forming his opinion is the type of scientific literature that an expert can reasonably rely on in forming an opinion, but it must ensure that the matter relied upon provides a reasonable basis for the particular opinion offered, without regard to whether the matter relied on reasonably supports the particular opinion offered.