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Complex civil cases, all too often, become the province of expert witnesses. Regardless of the issue, it is the rare case when counsel is unable to locate an expert who will support a given scientific proposition. And when they do, the expert inevitably will be able to explain, in cogent and dispassionate terms, why the side that retained him or her is in the right. What is a jury to do? As the trier of fact, the jury is certainly entitled to a substantial swatch of evidence. The question that lawyers have been asking for many decades is whether the trial judge should serve a gatekeeper function that involves some assessment of the evidence before it can be presented to the jury. In the federal courts, the answer is clear — the judge serves in such a capacity. But California state courts have often reached the opposite conclusion, particularly when medical experts were involved. A recent series of appellate decisions, however, will allow for a fresh look at how to approach this issue in California courts. The issue of expert admissibility and the role of the trial judge as a gatekeeper are not limited to any particular type of case. It can apply to admissibility of voice print analysis ( People v. Kelly, 17 Cal. 3d 24 (1976)), polygraphs ( People v. Adams, 53 Cal. App. 3d 109 (1975)), blood tests ( Huntington v. Crowley, 64 Cal. 2nd 647 (1966)) or any other evidence that may be developed by scientific techniques, principles or discovery considered new or novel at the time. The issue also frequently arises in chemical exposure cases in which juries are routinely confronted with a raft of experts of all persuasions who will testify on why a given chemical was or was not a more significant cause of whatever illness or illnesses happens to be at issue. In doing so, the expert will undoubtedly cite a bewildering array of toxicological and epidemiological studies from various places around the globe, claiming that each study somehow supports its position. The applicable rules in the federal courts and in California have the same genesis — the 1923 decision of the D.C. Circuit in Frye v. United States, 293 F. 1013. That decision, which predated the Federal Rules of Evidence, was based on common law. As the Frye court cogently stated, “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” The California courts adopted this standard in People v. Kelly, which explains why the resulting principle is referred to as the Kelly-Frye test. Decades after Frye, the Federal Rules of Evidence were promulgated. Among them was Rule 702, which specifically addressed expert testimony. It made no reference to the “general acceptance” standard outlined in Frye, a point that the U.S. Supreme Court, in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), relied upon in dispensing with this requirement. But this did not mean that all expert evidence would come in. Instead, the judge would serve a gatekeeper function to determine whether the evidence was “relevant” and “reliable.” This would include a preliminary determination of whether the expert was proposing to testify to scientific knowledge that would assist the trier of fact to understand or determine a fact in issue. In turn, this would require a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. California, however, never adopted the federal rules. The result is that the factor that caused the federal courts to dispense with Frye — Federal Rule 702 — was not brought to bear in California courts. Consequently, even though Daubert had replaced Frye in the federal courts, Frye (in the form of Kelly-Frye) remained the law in California. People v. Leahey, 8 Cal. 4th 587 (1994). The Kelly-Frye test is generally thought of as a conservative test. This is because “scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury�” United States v. Addison, 98 F. 2nd 741 at 744 (1974). While it is viewed as conservative on the general subject of expert admissibility, courts have found Kelly-Frye to be very lenient in the arena of medical causation. Many courts have found that any individual qualified as a medical expert is permitted to testify concerning a wide array of medical causation issues. In doing so, California courts have often been more lenient towards admissibility of this type of evidence than have federal courts applying Daubert! Against this historical backdrop, various courts of appeal handed down a troika of decisions last year that may bring the issue to a boil. The first case in the troika is People v. Mitchell, 110 Cal. App. 4th 772. The trial court admitted evidence that the defendant had been involved in a canine scent identification lineup without holding a Kelly hearing. In its July 2003 ruling, the Second District Court of Appeal found that while the failure to conduct a hearing constituted an error, the error itself was harmless. As the scent transfer unit was a novel device used in the furtherance of a new technique, a hearing should have occurred. But the court went on to say that, “Regardless of whether evidence is deemed �scientific,’ it will not be admitted unless it is relevant.” It added, “In California evidence is relevant only if it has �any tendency and reason to prove or disprove any disputed fact’ (Evidence Section 210), and expert testimony must be based on matter �that is of a type that may reasonably be relied upon by an expert.’” (Id., Section 801(b)); (See People v. Leahey at pp. 597-598). This sentence in Mitchell did not go unnoticed by another Second District Court of Appeal division in Roberti v. Andy’s Termite and Pest Control, Inc. 113 Cal. App. 4th 893. In this traditional toxic tort case, the trial court excluded expert testimony that the plaintiff’s autism was caused by pesticide exposure. The appellate court reversed in a ruling handed down last November. In doing so, it accepted the traditional largess that was extended to medical experts. As support for this proposition, the Roberti court cited a line of cases including People v. Ward, 71 Cal. App. 4th 368 (1999) (“California distinguishes between expert medical opinion and scientific evidence; the former is not subject to the special admissibility rule of Kelly-Frye. Kelly-Frye applies to cases involving novel devices or processes not to expert medical testimony, �”) and People v. McDonald 37 Cal. 3d 351 (1984) (“We have never applied the Kelly-Frye rule to expert medical testimony . . .”) In reaching its conclusion, the court in Roberti rejected the defendants’ argument that courts were still free to assess whether the challenged testimony was supported by a proper foundation, explicitly contrasting its decision with the previous Mitchell ruling: “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.” The final case in the troika is the Fourth District Court of Appeal’s decision in Jennings v. Palomar Pomerado Health Systems, 114 Cal. App. 4th 1108. The plaintiff in that case developed an abdominal infection after a surgical procedure. He filed a medical malpractice action claiming that the defendants negligently left an infected retractor in his abdominal cavity after surgery. Counsel for the plaintiff offered an expert to show that the retention of the retractor caused the abdominal infection. The trial court excluded the expert’s opinion on the basis that it was speculative. The Court of Appeal affirmed. Consistent with the approach taken in Mitchell, and in direct contrast to that taken in Roberti, the Jennings opinion cited numerous cases for the propositions that, “Even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. For example, an expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and must be excluded from evidence. Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasonable explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because expert opinion is worth no more than the reasons upon which it relies.” Summing up, the court held, “An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.” After determining that the medical expert did not provide any reasoned explanation, the Court of Appeal affirmed the evidentiary exclusion. The California Supreme Court has denied review of all three cases, the most recent being its denial of Jennings on March 3. Moreover, the Supreme Court denied requests to depublish the Mitchell and Roberti opinions. As a result, the law governing expert admissibility and the role of the trial court as a gatekeeper is, for the moment at least, far from settled in California. Scott P. DeVries is the firmwide managing partner at Nossaman Guthner Knox & Elliott. Based in San Francisco, he represents corporations in the trial and appeal of complex civil cases, including insurance coverage, environmental and toxic torts.

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