March 2006

Trial Courts as Gatekeepers for Expert Testimony: Will the California Supreme Court’s Decision In the Lockheed Litigation Cases II Bring California Closer to Applying Federal Standards?

By Rick Coffin

1.  Introduction

In chemical exposure litigation, a plaintiff’s ability to demonstrate a causal inference between chemical exposure and an alleged result rests with the opinions of expert witnesses.  A recurrent and pivotal issue in all chemical exposure cases is whether the proffered expert testimony is admissible.  In both state and federal courts, litigants ask the courts to perform a “gatekeeping” function to ensure the relevance and reliability of opponents’ expert testimony considered by a trier of fact.[1]  This paper briefly reviews the standards used in California state courts to evaluate the admissibility of expert testimony, and compares those standards to the Daubert test and Rule 702 of the Federal Rules of Evidence used in the federal courts.

As this paper is being written, the California Supreme Court is considering the “gatekeeping” function of California judges in an appeal of a coordinated proceeding designated the Lockheed Litigation Cases (JCCP No. 2967), Sup.Ct.App.No. 5132167 (“Lockheed II”).  This paper briefly reviews the status of that appeal, and identifies the important questions the Court may clarify when it issues its opinion. 

2.   The California Standard for Admitting Expert Testimony

California Evidence Code §801 allows an expert to offer opinion evidence when the opinion is: (1) “… sufficiently beyond common experience [so that] the opinion would assist the trier of fact” (§801(a)) and (2) “based on matter (including … special knowledge, skill, experience, training and education) perceived by or personally known to him at or before the hearing whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates … .”  (§801(b) emphasis added).

Evidence Code §803 allows courts to exclude expert testimony “based in whole or in significant part on matter that is not a proper basis for such an opinion … .”  Courts interpreting Sections 801(b) and 803 have held that an expert opinion based on speculation or conjecture is inadmissible.  Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-1136; Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.  However, unlike the federal courts, California courts have not clearly articulated the standard to be used in determining what is “…speculation or conjecture.”

A brief examination of two recent appellate opinions highlights the current uncertainty about the standards to be used in evaluating the admissibility of expert testimony in California.  In Roberti v. Andy’s Termite and Pest Control, Inc. (2003) 113 Cal.App.4th 893, the trial court excluded plaintiff’s expert testimony regarding a causal link between pesticide exposure and autism by expressly applying the three-part test first articulated in People v. Kelly (1976) 17 Cal.3d 24 (Roberti, at pp. 898-899).[2]  The Court of Appeal reversed the exclusion of evidence, holding:

  •  The Kelly test applies only to new scientific techniques, not medical causation opinions such as those offered in Roberti; and

  • California courts do not apply the “reliable foundation” test derived from Rule 702 of the Federal Rules of Evidence and established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. (1993) 509 U.S. 579, 587.  See also, People v. Leahy (1994) 8 Cal.4th 587.

 Therefore, Roberti refused to apply a “… more extensive preliminary admissibility test” to the expert opinions offered by plaintiffs “…[U]nless and until our Supreme Court determines that the Daubert analysis is applicable in California.”  Roberti at 906.[3]  Apparently, the Roberti court would conclude that a trial court has no screening function with regard to expert opinions on medical causation under current California law.

Contrast the Roberti decision with the appellate opinion in Lockheed Litigation Cases (2004) 115 Cal.App.4th 558 (“Lockheed I”).  There, after extensive pretrial briefing and a hearing, the trial court excluded the medical causation opinion of Dr. Daniel Teitelbaum drawing a connection between solvent exposure and cancer.  Dr. Teitelbaum’s opinion was excluded on two alternative grounds:  (1) the increased risks of cancer identified in the survey on which Dr. Teitelbaum relied for his opinion were not tied to the five specific chemicals in controversy; and (2) the surveys did not show a sufficient increase in the incidence of the types of cancers at issue in the case.  Lockheed I at 562.  The Court of Appeal upheld exclusion of Dr. Teitelbaum’s opinions, because the underlying studies upon which he relied did not isolate the five chemicals in controversy, relied upon exposure to other known carcinogens, and were therefore “… based on conjecture and speculation as to which of the many substances to which the study subjects were exposed contributed to the greater incidence of cancer.”  Lockheed I at 564-565.  Plaintiffs did not seek Supreme Court review of the Lockheed I decision.

3.   The Federal Standard For Admitting Expert Testimony

Three United States Supreme Court decisions since 1993 have made the “gatekeeping” function of federal trial courts explicit in evaluating expert testimony.  In 1993, the Supreme Court decided Daubert, supra.  Daubert held that the rigid “general acceptance” test for admitting expert testimony regarding new scientific methods first articulated in Frye v. United States (1923) 293 F.1013 had been superseded by the adoption of the Federal Rules of Evidence (“FRE”) in 1973.  To guide district courts in assessing the reliability of expert testimony under FRE 702, the Court enumerated a non-exclusive list of facts for courts to consider before admitting expert evidence:

  •  “whether a theory or technique can be (and has been) tested,” – that is whether the technique can be assessed for reliability;

  •  “whether the theory or technique has been subjected to peer review and publication;”

  • whether there is “a known or potential rate of error … and the existence and maintenance of standards controlling the technique’s operation;” and

  • whether the theory or technique has gained general acceptance in the relevant scientific community.

Daubert at 593-594.  The Court was careful to note that these factors, while relevant, are not exclusive.  Indeed, the existence of all four factors is not dispositive of the reliability of the proffered expert testimony.  Id.

 In 1997, in General Electric v. Joiner (1997) 522 U.S. 136, the Supreme Court affirmed the broad discretion of federal trial courts to exclude unreliable expert testimony using the Daubert criteria and determined that a deferential “abuse of discretion” standard applied on appeal.

 Finally, in 1999, the Supreme Court made it clear that a foundational analysis under the Daubert criteria applies to all expert testimony, not just “new” techniques and not just “scientific” evidence.  Kumho Tire Co. v. Carmichael (1999) 1526 U.S. 137.

 In December 2000, the Federal Rules of Evidence were amended to affirm the federal trial courts as evidentiary gatekeepers for expert evidence.  While not “codifying” the Daubert factors, amended FRE 702 provides general standards that federal trial courts must use to assess the reliability and helpfulness of proffered expert testimony.  FRE 702, 2000 Advisory Committee Notes (emphasis added).  Those standards are:

  •  Is the testimony based on sufficient facts or data?

  • Is the testimony the product of reliable principles and methods?

  • Has the witness applied the principles and methods reliably to the facts of the case?

4.  The Pending Appeal In The Lockheed Litigation Cases II

The current “gatekeeper” case pending in the California Supreme Court again involves the general medical causation opinion of plaintiffs’ expert, Dr. Daniel Teitelbaum.  After Lockheed I, defendants challenged Dr. Teitelbaum’s opinions with regard to another group of plaintiffs in the coordinated proceeding.  These plaintiffs alleged various injuries, but did not assert that their solvent exposure caused cancer.  After extensive briefing and numerous pretrial hearings, the trial court again excluded Dr. Teitelbaum’s causation opinions because:

 The epidemiology studies relied on by Dr. Teitelbaum involved mixed chemical studies that included a large number of chemicals not in controversy in Lockheed.  Therefore, Dr. Teitelbaum could not reasonably rely on those studies to infer causation from the specific chemicals in controversy.

  •  The animal studies used by Dr. Teitelbaum could not reliably be extrapolated to humans and a number of the studies were only relevant to diseases that the plaintiffs did not have.

  • The case reports used by Dr. Teitelbaum did not support his opinions because they were anecdotal observations of a single patient or small group of patients.  Case reports are not a reliable source to draw conclusions about a specific chemical’s ability to cause a specific disease.

  •  The treatises and registries relied upon by Dr. Teitelbaum inferred a possible association between the chemicals and diseases at issue.  Such an association was not sufficient to prove a legal condition between the chemicals and diseases at issue.

 When plaintiffs informed the trial court they could not proceed to trial without Dr. Teitelbaum’s opinions, the Court dismissed plaintiffs’ claims and entered judgment.  The Court of Appeal affirmed in January 2005, and the Supreme Court granted review in March 2005, to answer a single question posed by plaintiffs’ petition:

Does the California Evidence Code permit a trial court to conduct its own review of the scientific evidence underlying an expert’s opinion to determine for itself whether the evidence adequately supports the proffered opinion before allowing it to be presented [in evidence]?

All briefing has been submitted to the Supreme Court and the case awaits assignment for oral argument.  In Lockheed II, the Supreme Court has the opportunity to clarify a number of important questions with regard to the admission of expert testimony in California: 

Do Sections 801(b) and 803 of the California Evidence Code require trial courts to screen all expert testimony for reliability before it gets to a trier of fact or are California judges governed only by the Kelly/Frye test as it applies to “new scientific” evidence?

  • If screening is required, what standards should be used by the trial courts to exclude expert testimony?

  • If screening is required, what procedures should be used by trial courts to evaluate the reliability of expert testimony?

  • At what point does the trial court’s screening function invade the province of the trier of fact’s duty to weigh the persuasiveness of expert testimony?

While California case law offers insights into all of these questions, clear guidance from the Supreme Court would help both trial courts and litigants in evaluating and preparing expert testimony.

[1] Obviously, the admissibility determination is most crucial in jury trials.  However, the rules governing the admissibility of expert testimony are not limited to jury trials.

[2] In Kelly, the California Supreme Court held that expert testimony about a “new scientific technique” could only be admitted if:  (1) the technique is generally accepted as reliable in the relevant scientific community; (2) the witness is properly qualified as an expert; and (3) the technique is properly applied to the facts being considered.  Kelly was adapted from a decision of the federal circuit in the District of Columbia Circuit called Frye v. United States, 293 F.1013 (D.C. Cir. 1923).  The three-pronged test for the required foundation for “new” scientific evidence in California is commonly referred to as the Kelly/Frye test.

[3]  California is one of a minority of states that has not explicitly adopted a Daubert-type analysis for the admissibility of expert testimony.  See, “Products Liability and The Elements Of Science:  Admissibility of Expert Testimony In New York and Other Frye States,” Tort Trial of Insurance Practice Law Journal, Vol. 41, No. 1, Fall 2005, Joseph J. Ortega and James W. Weller.

________________________________________

© 2006 Rick Coffin.  Posted with permission.  This file cannot be downloaded from this page.  

This article was originally presented at the Prop65Clearinghouse Annual Conference in San Francisco, California, on March 27, 2006.

These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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