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The debate over the use of “junk science” to establish causation in toxic tort litigation has raged for many years in California courts as well as in federal and state courts around the country. The U.S. Supreme Court and Ninth Circuit U.S. Court of Appeals, in rulings in Daubert v. Merrell-Dow Pharmaceuticals, grappled with the issue of excluding unreliable expert testimony and sought to put it to rest more than a decade ago. The Daubert rulings adopted a “flexible” approach, intended to allow federal district courts to consider a variety of factors, including the actual or potential validation of the theory or opinion, scientific scrutiny through peer review and publication, and determination of error rate. This was a significant departure from simply relying on the historical criterion of “general acceptance” in the relevant field of science under the Frye test established by the D.C. Circuit in 1923. Daubert, 509 U.S. 579 (1993). As Judge Alex Kozinski explained, writing for the Ninth Circuit on remand from the Supreme Court in Daubert, for an expert opinion to be admissible, there must be “verifiable evidence that the testimony is based on ‘scientifically valid principles.’ “ “That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in court merely as an eleemosynary gesture,” wrote Kozinski. “But in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office.” 43 F.3d 1311, (1994). The Daubert rulings spawned considerable litigation in federal district and appellate courts concerning the proper application of this flexible approach. Over the past decade, the Supreme Court also weighed in with further guidance, confirming that district courts may exclude expert opinions based on “too great an analytical gap between the data and the opinion proffered” and that such rulings are subject to review only for abuse of discretion ( General Electric v. Joiner, 522 U.S. 136 (1997)). The Supreme Court also confirmed the broad application of the new test, holding that admissibility based on Daubert factors applies to technical as well as medical and scientific expert testimony ( Kumho Tire v. Carmichael, 119 S. Ct. 1167 (1999)). Overall, federal courts have employed the Daubert factors to more stringently restrict expert testimony on tort causation, ensuring that only evidence shown to be supported by scientifically valid principles is ever heard by the jury. From the beginning, however, California courts refused to follow Daubert, opting instead to adhere to the traditional “general acceptance” test announced in Frye and its California progeny, People v. Kelly, 17 Cal.3d 24 (1976). In People v. Leahy, 8 Cal.4th 587 (1994), the California Supreme Court expressly declined to adopt the factors analysis approach spelled out in Daubert. Although the state Supreme Court’s Leahy ruling also made it clear that “new scientific techniques” should be carefully scrutinized in determining whether they were generally accepted in the relevant field of science, some California state court litigants have continued to seek to offer such testimony based solely on the expert’s credentials and experience, arguing that anything else goes to the weight, rather than the admissibility, of the evidence. This has sometimes occurred despite the additional requirement in California Evidence Code section 801(b) that the basis of the expert testimony must be of a type reasonably relied upon by an expert in forming an opinion on the subject. But a recent state appellate ruling has further altered the expert-testimony landscape in California. The Second District Court of Appeal, in a Jan. 31 ruling in Lockheed Litigation Cases, No. B166347, affirmed the lower trial court’s exclusion of testimony from Dr. Daniel Teitelbaum, a well-known medical toxicologist who has frequently served as an expert witness for plaintiffs in toxic tort cases. In Lockheed, a Los Angeles Superior Court judge concluded that multiple-solvent epidemiological studies relied upon by Teitelbaum, the plaintiffs’ chief expert witness, provided no reasonable basis for an opinion that any one of the solvents at issue in the litigation can cause disease. The Superior Court found that other epidemiological studies relied upon by Teitelbaum “do not justify the assumption that because an illness occurs after a ‘multi-solvent exposure,’ ipso facto, each chemical in the mix is an active agent or a contributive cause. One or more of the chemicals may in fact be ‘a cause’ or a ‘substantial factor’ but this should be supported by some sort of scientific data that supports a decision about a particular chemical.” Following this ruling the parties agreed to dismissal by the Superior Court to enable an appeal. The Court of Appeal began its analysis by restating its previous ruling in earlier Lockheed litigation, including the principle that “an expert opinion has no value if its basis is unsound.” (115 CalApp.4th, 564). The appellate court also reaffirmed that “if the court excludes expert testimony on the ground that there is no reasonable basis for the opinion, we review the exclusion of evidence under the abuse of discretion standard.” In a toxic tort case, the court explained, “a plaintiff must present expert testimony sufficient to establish a reasonable medical probability that the defendant’s conduct contributed to the plaintiff’s injury.” The Court of Appeal concluded: “The epidemiological studies showed that persons exposed to many solvents suffered a greater incidence of disease than persons not exposed. The studies do not indicate, however, whether persons exposed to only the solvents at issue here suffered a greater incidence of disease than those not exposed. We conclude that the multiple-solvent studies provide no reasonable basis for an opinion that any of the solvents here at issue can cause disease.” The Lockheed holding provides a framework for analysis that allows California courts to properly screen and exclude expert testimony that is not based on scientifically valid principles, and to do so in a manner akin to the reliability factors of Daubert. The holding is also entirely consistent with the standards established by the California Supreme Court and Evidence Code: The theory and methodology underlying the opinion must be generally accepted in the relevant field of science, and the basis of the testimony must be of a type that is reasonably relied upon by experts in the particular field in forming an opinion on the subject. Following Lockheed, there should be greater consistency among state and federal court rulings on admissibility of expert evidence on causation in toxic tort cases. And with such greater consistency, there should be less incentive to use state courts as a means to avoid strict requirements for sound science in the courtroom. Chris Locke, a partner at Farella Braun & Martel, represents corporate clients in all aspects of environmental law and litigation.

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