California Takes a Giant Step Towards Daubert

By Robert Ambrogi Esq
There was a major ground shift in California recently – and we’re talking not about an earthquake, but about the law governing the admission of expert testimony.

In a unanimous opinion published Nov. 26, the California Supreme Court came within a hair’s breadth of adopting the federal standard for admission of expert testimony as enunciated by the U.S. Supreme Court in its 1993 opinion, Daubert v. Merrell Dow Pharmaceuticals.

California has long been among the minority of states that have adhered to the pre-Daubert “general acceptance” test for the admissibility of expert testimony – a test first spelled out in the 1923 opinion of the D.C. Circuit Court of Appeals, Frye v. United States.

The California Supreme Court unanimously adopted the Frye test in its 1976 decision, People v. Kelly. In the years since, it has continued to apply the general acceptance test, requiring proof that a scientific technique has gained general acceptance in the particular field in which it is applied in order for it to be admissible.

But in the Nov. 26 opinion, Sargon Enterprises v. University of Southern California, the court reversed the Court of Appeal and affirmed a trial judge who excluded an expert’s opinion regarding lost profits as being overly speculative. In so ruling, the Supreme Court said that California judges are obligated to perform a gatekeeping function similar to that performed by federal judges under Daubert.

“We conclude that the trial court has the duty to act as a ‘gatekeeper’ to exclude speculative expert testimony,” the court said. “Lost profits need not be proven with mathematical precision, but they must also not be unduly speculative. Here, the court acted within its discretion when it excluded opinion testimony that the company would have become extraordinarily successful had the university completed the clinical testing.”

California or Federal Law?

The court cited and quoted Daubert several times in its opinion, but stopped short of adopting it. Instead, the court described the gatekeeping function as inherent in California law and California Evidence Code Sections 801 and 802.

“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,” the court explained. “Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony.”

However, in the very next paragraph, the court turned again to federal law, citing both Daubert and the Federal Rules of Evidence for the proposition that judges must be cautious in excluding expert testimony.

“The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness,” the court said. “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.”

Even though the California Supreme Court stopped short of adopting Daubert, lawyers are calling the opinion a major step in that direction.

Ruling’s Effect Will Be Dramatic

“The California Supreme Court in Sargon aligned California’s law of expert opinion admissibility with post-Daubert federal law, immediately catapulting California from among the most lax to one of the most muscular jurisdictions in this often-outcome-determinative area,” wrote Kaye Scholer partner Robert Barnes in an article originally published in The Recorder.

“While Sargon’s specific holding provides a much-needed corrective to what a jury can hear by way of lost profits damages analysis, the ruling’s effect on all California litigation will be dramatic and profound,” Barnes wrote. “The impact of the Supreme Court’s new expert admissibility regime should be particularly striking in tort cases turning on expert medical causation evidence.”

Alston & Bird lawyers Rodrigo Salas and Jesus Torres, in a joint post at the Product Liability Trends and Developments blog, agreed. “This clarification of existing case law – the interaction between Evidence Code Sections 801 and 802 – brings California one step closer to the federal Daubert admissibility standard,” they wrote. “This decision provides further ammunition for challenging expert testimony – not just on methodology, but also on the reasoning and foundation for the expert’s opinion.”

Another products liability lawyer, James Beck of Reed Smith, writing at his blog Drug and Device Law, described the opinion as one in which “the court spoke about California expert admissibility with a distinct Daubert accent.” The opinion is noteworthy, he continued, for the court’s repeated reliance on the federal precedent that we have (usually) come to know and love.”

One legal blogger wished the court had gone even farther. In a post at his blog Daubert Uncensored, Bowman and Brooke partner John D. Sear, suggested that, to the extent the opinion represents a further erosion of the general acceptance test in California, the court should outright embrace Daubert once and for all.

“Time and time again, the California Supreme Court has emphasized that it is not adopting the Daubert test, all the while quoting, citing, and relying upon Daubert precedent in defining the contours of California's test,” Sear said. “In my view, the court ought to simply scrap the general acceptance test outright and embrace the Daubert principles it has relied upon for years.”

The case is Sargon Enterprises, Inc. v. University of Southern California, __ Cal. 4th __, 2012 WL 5897314 (Nov. 26, 2012).

Tell us what you think:

Why does the California Supreme Court seem to stop short of expressly adopting Daubert?

What kinds of cases do you think the California Supreme Court's ruling will impact the most?

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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