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Sargon Decision Augments Trial Judge's Gatekeeping Role in California Courts

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Sargon Decision Augments Trial Judge's Gatekeeping Role in California Courts Expert Evidence Report® Reproduced with permission from Expert Evidence Report, 13 EXER 211, 04/22/2013. Copyright ஽ 2013 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com ADMISSIBILITY SCIENTIFIC EVIDENCE Sargon Augments Trial Judge’s Gatekeeping Role in California Courts nia,1 an important decision affirming that trial judges must take a hard look at the basis for expert testimony, and which emboldens these judges to exclude those opinions that are foundationally infirm. In this unanimous opinion upholding a trial court’s decision to exclude expert testimony that was not based upon reasonable assumptions or ‘‘matters upon which a reasonable expert would rely,’’2 the supreme court construes Sections 801(b) and 802 of the California Evi- dence Code and relevant decisional law to authorize— and even require—California’s trial courts to conduct a substantive review of the foundation, methods and rea- BY KIRK A. WILKINSON AND GARRETT L. JANSMA soning underlying ordinary expert opinions, i.e., that which is not based upon novel scientific techniques. hen it comes to evaluating the admissibility of At first glance, Sargon appears to strike a low profile: expert witness testimony, ‘‘trial courts have a The court engages in an arguably straightforward con- W substantial ‘gatekeeping’ responsibility.’’ struction of the Evidence Code that is consistent with So announced the California Supreme Court recently established California case law, while leaving the Kelly/ in Sargon Enterprises v. University of Southern Califor- Frye ‘‘general acceptance’’ test governing evidence based upon new scientific methods separate and un- Kirk A. Wilkinson is a partner in the Los scathed. But the choice of words and tone should not be Angeles office of Latham & Watkins, where overlooked. By deputizing the trial courts as ‘‘gatekeep- his practice focuses on environmental litiga- ers,’’ and emphasizing the importance of a judge’s pre- tion. He has extensive expertise in public and liminary admissibility review, while simultaneously re- private nuisance law, having defended pub- lying on Daubert cases to provide guideposts delineat- lic companies in actions brought by cities and ing this gatekeeping responsibility, Sargon provides private plaintiffs, and he has worked exten- ammunition to those seeking to exclude flawed expert sively on CERCLA and California cost recov- testimony in California courts. ery litigation for Superfund sites in Califor- nia. Wilkinson can be reached at California’s Approach to Expert Testimony [email protected]. Garrett L. Jansma, an associate in the Costa It is said that California is a Kelly-Frye state, while Mesa (Orange County), Calif., office of federal courts follow the Daubert standard. The sub- Latham & Watkins, focuses on environmental law and toxic torts. Jansma may be contacted 1 Sargon Enterprises, Inc. v. University of Southern Califor- at [email protected]. nia, 55 Cal. 4th 747 (2012). 2 Sargon, at 766-7. COPYRIGHT ஽ 2013 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 1536-1896 2 stance and scope of this distinction sometimes remains methods to the facts of the case.’’9 Under Daubert, all elusive, however, and could use some unpacking. types of expert testimony present questions of admissi- When considering whether to admit expert testi- bility for the trial court in deciding whether the evi- mony, California courts distinguish between ‘‘ordinary’’ dence is reliable and helpful.10 expert testimony, on the one hand, and expert testi- As a case involving expert testimony on damages, mony deduced from novel scientific principles or meth- Sargon sets its sights on ordinary expert testimony ods, on the other.3 Since 1976, when in People v. Kelly, while leaving Kelly alone. In a footnote, the court clari- the California Supreme Court first embraced the ‘‘gen- fies that this case does not disturb the ‘‘general accep- eral acceptance’’ standard that had been established de- tance’’ test for admissibility of expert testimony based cades before in Frye v. United States,4 a party that on new scientific techniques.11 In directing trial courts seeks to introduce scientific expert opinion testimony in to ‘‘vigilantly exercise their gatekeeping function’’ for California courts must show that the underlying scien- ordinary expert opinion testimony,12 Sargon focuses on tific theory has been generally accepted as valid and re- Sections 801(b) and 802 of the California Evidence liable in the relevant scientific field. Although this de- Code, and the preliminary screening that California manding ‘‘general acceptance’’ (or ‘‘Kelly’’) standard trial judges must undertake pursuant to these sections. may prove difficult to overcome once it has been trig- In so doing, the supreme court describes the proper gered, the stringency of the test is mitigated by its lim- scope of the trial court’s examination of expert testi- ited application: Kelly does not apply to non-scientific mony in a manner that resembles the federal approach (or ‘‘ordinary’’) expert opinion testimony—therefore, it under Daubert. does not apply to the vast majority of expert testimony proffered in California courts.5 As discussed more fully below, ordinary expert opinions have always been sub- What Happened in Sargon? ject to basic evidentiary principles as well as the Evi- dence Code provisions that govern opinion testimony. A small manufacturer of dental implants, Sargon En- Federal courts, by contrast, evaluate the reliability of terprises, Inc. (‘‘Sargon’’) sued the University of South- all expert opinion evidence that is based on scientific, ern California (‘‘USC’’) for breaching an agreement to technical or specialized knowledge by uniformly apply- conduct a clinical study of a new implant that Sargon ing the Daubert standard.6 Amended in response to had patented.13 Sargon had high hopes for the commer- Daubert v. Merrell Dow Pharmaceuticals, Inc.,7 and to cial success of this implant, whose innovative design, the many cases applying Daubert,8 Rule 702 of the Fed- Sargon claimed, would have revolutionized the dental eral Rules of Evidence confides a ‘‘gatekeeping respon- implant industry and catapulted the company to the top sibility’’ to federal judges, who must exclude irrelevant of the dental implant market. After prevailing at trial in or unreliable expert testimony that does not ‘‘help the 2003, despite the exclusion of its damages expert, Sar- trier of fact to understand the evidence or to determine gon embarked on a long and ill-fated appellate journey a fact in issue,’’ is not ‘‘based on sufficient facts or to recover the lost profits that it contended were its due. data,’’ or is not ‘‘the product of reliable principles and Sargon sought to introduce the testimony of its dam- methods’’ or the application of such ‘‘principles and ages expert, Mr. James Skorheim, who had concluded that Sargon’s lost profits ‘‘ranged from $220 million to 14 15 3 $1.18 billion.’’ USC moved to exclude this opinion. People v. Kelly, 17 Cal. 3d 24, 30 (1976) (‘‘We have ex- After an eight-day evidentiary hearing, the trial court pressly adopted the foregoing Frye test and California courts, when faced with a novel method of proof, have required a pre- sustained USC’s motion in limine in a 33-page written liminary showing of general acceptance of the new technique ruling that identified fundamental flaws in the basis and in the relevant scientific community.’’). See also Wegner et al., reasoning underlying Skorheim’s opinion— Cal. Practice Guide: Civil Trials and Evidence (The Rutter foundational flaws that the court concluded were fatal Group 2012) ¶ 8:563-565) (collecting cases to distinguish scien- to the relevance and admissibility of his expert testi- tific evidence involving ‘‘novel devices or processes’’ from ‘‘or- mony.16 dinary expert testimony’’). 4 Skorheim based his opinion on a ‘‘market share’’ ap- Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). proach.17 He sought to determine what share of the 5 Wegner et al., id. See also People v. Rowland, 4 Cal. 4th 238 (1992) (holding that the Kelly-Frye Rule is inapplicable to worldwide dental implant market Sargon would have expert medical testimony); People v. Stoll, 49 Cal.3d 1136 gained if USC had completed a favorable clinical study, (1989) (‘‘Kelly/Frye only applies to that limited class of expert and then to calculate Sargon’s future profits based on testimony which is based, in whole or part, on a technique, that market share.18 While the trial court judge ac- process, or theory which is new to science and, even more so, knowledged that as a general matter, ‘‘a ‘market share’ the law.’’); David E. Bernstein, Frye, Frye, Again: The Past, analysis is appropriate and warranted under California Present, and Future of the General Acceptance Test, 41 JURI- METRICS J. 385, 395 (2000-2001) (‘‘In California, the largest Frye jurisdiction, there are no reported cases applying Frye to 9 Rule 702, Federal Rules of Evidence. toxic tort or products liability cases, and pre-Daubert opinions 10 See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, suggest that Frye would rarely if ever be applicable to personal 147-149 (1999) (holding that the basic gatekeeping obligation injury cases.’’). outlined in Daubert applies to all expert matters described in 6 Rule 702, Federal Rules of Evidence, Notes of Advisory Fed. Rule of Evidence 702). Committee on 2000 amendments (citing Kumho Tire Co. v. 11 Sargon, at 772, n. 6. Carmichael, 119 S. Ct. 1167 (1999), for the proposition that the 12 Sargon, at 781. Daubert ‘‘gatekeeper function applies to all expert testimony, 13 Sargon, at 753-5. not just testimony based in science.’’). 14 Sargon, at 755. 7 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 15 Sargon, at 754. 579 (1993). 16 Sargon, at 761. 8 Rule 702, Federal Rules of Evidence, Notes of Advisory 17 Sargon, at 755.
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