New News On Excluding Unreliable Expert Testimony

April 1, 2005

On January 31, 2005, the Second District Court of Appeals concluded the Lockheed litigation cases, which had been ongoing for two decades, affirming the trial court's exclusion of the opinions of the plaintiffs' expert toxicologist regarding medical causation. The Second District's decision reinforced the trial court's conclusion that plaintiffs' expert's opinions should be excluded under California Evidence Code Section 801(b). Section 801(b) states that in order to be admitted into evidence, an expert's opinion must be based on matters that are of a type that, "reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates..." The trial court found that the studies and other materials provided by the expert did not meet this threshold requirement for admissibility. The appellate court agreed with the trial court's finding that the expert's opinion that various solvents caused the plaintiffs' chronic injuries lacked a reasonable basis. The Lockheed Litigation Cases (*LLC*) decision signifies a shift in the method for exclusion of unreliable expert testimony. Prior to the LLC decision, litigants and courts coping with allegedly unreliable expert testimony primarily focused their attention on the question of whether the expert's opinion was admissible under People v. Kelly (1976) 17 Cal.3d 24 (otherwise known as the Kelly-Frye rule). The Kelly-Frye rule dictates that the admissibility of a new scientific technique depends on whether the technique has become "generally accepted" in the scientific community. This rule was routinely applied to exclude a wide variety of scientific evidence over the past 25 years. However, in Roberti v. Andy's Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893, the court held that the application of the Kelly-Frye test should be limited to new scientific techniques and, therefore, generally was not a proper basis for exclusion of medical causation testimony. The Roberti decision forced a renewed emphasis on Evidence Code Section 801(b) as a means of determining the admissibility of expert opinion testimony. The LLC decision is the first published opinion to broadly address the admissibility of expert opinion testimony since Roberti. The decision invites trial courts to carefully scrutinize the basis of an expert's opinion to determine whether the testimony should be admitted. In this respect, the decision reemphasizes the gate-keeping role of trial courts faced with arguably unreliable expert testimony. On January 31, 2005, the Second District Court of Appeals concluded the Lockheed litigation cases, which had been ongoing for two decades, affirming the trial court's exclusion of the opinions of the plaintiffs' expert toxicologist regarding medical causation. The Second District's decision reinforced the trial court's conclusion that plaintiffs' expert's opinions should be excluded under California Evidence Code Section 801(b). Section 801(b) states that in order to be admitted into evidence, an expert's opinion must be based on matters that are of a type that, "reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates..." The trial court found that the studies and other materials provided by the expert did not meet this threshold requirement for admissibility. The appellate court agreed with the trial court's finding that the expert's opinion that various solvents caused the plaintiffs' chronic injuries lacked a reasonable basis.

The Lockheed Litigation Cases (*LLC*) decision signifies a shift in the method for exclusion of unreliable expert testimony. Prior to the LLC decision, litigants and courts coping with allegedly unreliable expert testimony primarily focused their attention on the question of whether the expert's opinion was admissible under People v. Kelly (1976) 17 Cal.3d 24 (otherwise known as the Kelly-Frye rule). The Kelly-Frye rule dictates that the admissibility of a new scientific technique depends on whether the technique has become "generally accepted" in the scientific community. This rule was routinely applied to exclude a wide variety of scientific evidence over the past 25 years. However, in Roberti v. Andy's Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893, the court held that the application of the Kelly-Frye test should be limited to new scientific techniques and, therefore, generally was not a proper basis for exclusion of medical causation testimony. The Roberti decision forced a renewed emphasis on Evidence Code Section 801(b) as a means of determining the admissibility of expert opinion testimony.

The LLC decision is the first published opinion to broadly address the admissibility of expert opinion testimony since Roberti. The decision invites trial courts to carefully scrutinize the basis of an expert's opinion to determine whether the testimony should be admitted. In this respect, the decision reemphasizes the gate-keeping role of trial courts faced with arguably unreliable expert testimony.

The relevance of the LLC decision is in no way limited to toxic tort cases. Evidence Code Section 801(b) applies to expert opinion testimony in all civil and criminal cases. While the majority of the court's opinion in LLC discuss scientific issues frequently arising in toxic tort cases, the court's call for strict scrutiny of expert testimony under Section 801(b) applies equally to all cases. Thus, while "junk science" surely is more prevalent in toxic tort cases than other cases, the LLC decision will be the focus of future motions to exclude expert testimony in any case where the basis for an expert's opinion appears unreliable.