Finding the True Meaning of Sargon
May 17, 2013
Daily Journal
"Finding the True Meaning of Sargon" originally appeared in the May 16, 2013 issue of the Daily Journal.
The state Supreme Court’s decision in Sargon Enterprises, Inc. v. USC, 55 Cal. 4th 747 (2012), detailing a trial court’s gatekeeping responsibility regarding expert testimony, has generated tremendous buzz over its true meaning and significance — some labeling the decision a “game changer” while others suggest it merely restates existing law. For its part, the Court of Appeal decision earlier this month (on remand) took a middle ground, holding that the Supreme Court did not announce a new rule of law, even if the court explained existing law in a way which “may be said to ‘extend’” or “give new meaning” to the law. Sargon Enterprises, Inc. v. USC, 2013 DJDAR 5677 (May 2, 2013). Which of these views is closest to the truth? If Sargon did not announce a new rule of law, it surely explained the law in a groundbreaking manner.
History of the law
Almost 10 years after the Evidence Code became effective, the state Supreme Court adopted the rule regarding expert testimony set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) in the 1976 case People v. Kelly, 17 Cal.3d 24. Making only a passing reference to Evidence Code Section 801 and no mention at all of Section 802, the Kelly court held that to admit expert testimony, the proponent must demonstrate that: (1) the method employed by the expert was reliable; (2) the expert was sufficiently qualified; and (3), the correct scientific procedures were used. To prove that the method was reliable, the court held that the proponent of the evidence must show that the technique had attained general acceptance in the relevant scientific community. The so-called Kelly/Frye rule became the primary focus of efforts to exclude scientific expert witness testimony over the next several years.
In the wake of the U.S. Supreme Court’s 1993 decision in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, the state Supreme Court revisited the issue in People v. Leahy, 8 Cal. 4th 587 (1994). The impetus for this was both growing criticism of Kelly/Frye and Daubert’s conclusion that the adoption of the Federal Rules of Evidence superseded the common law rule in Frye. Rejecting calls to modify the rule, and distinguishing the history of the adoption of the Evidence Code from that of the Federal Rules of Evidence, Leahy reaffirmed California’s adherence to the Kelly/Frye rule. In so doing, beyond stating that Evidence Code Section 801 did not incorporate the “general acceptance test” of Frye, the court again was silent on the significance of Sections 801 and 802. In fact, the Leahy court indicated that the reliability of scientific testimony should be governed by Section 350 (i.e., relevance).
The strict limitation of the application of the Kelly/Frye rule to new scientific techniques proved incredibly dissatisfying for those eager to attack scientific testimony. For example, in Roberti v. Andy’s Termite & Pest Control, Inc., 113 Cal. App. 4th 893 (2003) — a toxic tort decision focusing on medical causation testimony — the court, citing Leahy, rejected the notion that a Daubert threshold test applied in California, and maintained strict adherence to the narrow application of the Kelly/Frye rule to scientific techniques. Roberti flatly rejected the notion that trial courts had a duty to ensure that expert testimony rests on a reliable foundation. The court further held that the opinions were admissible because they were based on the type of matter which experts ordinarily rely upon to form opinions on medical causation. Apparently, because the Supreme Court itself had done no more than mechanically apply Section 801(b) in this same fashion since 1967, such as in Luque v. McLean, 8 Cal.3d 136 (1972), and People v. Stoll, 49 Cal.3d 1136 (1989), and had not provided any guidance on Section 802, the Roberti court perceived that this was the appropriate end to the analysis.
No doubt recognizing the total absence of Section 801 analyses, in 2005 the state Supreme Court granted review in Lockheed Litigation Cases, 126 Cal. App. 4th 271 (2005) (Lockheed II), another toxic tort case involving expert medical causation opinion testimony. The issue presented in Lockheed II was whether Section 801(b) permitted a trial court to review the evidence an expert relied on to determine whether it provided a reasonable basis for the expert opinion. Regrettably, owing to conflicts of interest, four of the justices recused themselves after the case was fully briefed. In a controversial decision, the court then declined to appoint lower court justices to fill the void and dismissed the appeal. A golden opportunity to expound on Section 801, and perhaps Section 802, was lost.
After dismissing the appeal in Lockheed II, and before granting review in Sargon, the Supreme Court remained mostly silent on the issue. The most notable remark came in a footnote, later cited by Justice Ming W. Chin in Sargon, referencing the gate-keeping duty of trial courts — although not in relation to Section 801 or 802). People v. Prince, 40 Cal. 4th 1179, 1225, n.8 (2007). Given the foregoing history, Justice Chin was writing on a nearly completely blank slate in Sargon. He surely was not in a position to merely “restate the law” based on historical precedent, for there was none.
The only remaining question left then is whether the Sargon adds anything to our understanding of Sections 801 and 802. The answer is a resounding “yes!”
The message of Sargon
For starters, Sargon’s proclamation that trial courts have a “substantial ‘gatekeeping’ responsibility” must be viewed as groundbreaking. Save the Prince footnote, prior to Sargon the court never spoke of a trial court’s duties in relation to Sections 801 and 802 in these terms.
Second, Sargon rejects the notion that Section 801(b) can be satisfied by mere proof that an expert has relied upon matter that is of a “type” that experts in the relevant field ordinarily rely upon (and is not speculative). This limited application of Section 801(b), which Leahy and other decisions followed, was not followed in Lockheed Litigation Cases, 115 Cal. App. 4th 558 (2004) (Lockheed I). Sargon adopted the Lockheed I view, declaring that “the matter relied upon must provide a reasonable basis for the particular opinion offered” (emphasis added). Thus, even if an opinion is supported by the type of data ordinarily relied upon by an expert in a particular field, and cannot be said to be based on speculation, Sargon dictates that under Section 801(b) trial courts are now obligated to go further, and determine if the basis for an expert opinion is reasonable. Using toxic tort cases as an example, it is not enough to say that toxicologists commonly rely on epidemiological studies to prove medical causation. Instead, the proponent must show the studies relied on by the expert provide a reasonable basis for the expert’s opinion.
Third, Sargon interpreted Section 802 to mean “that a court may inquire into not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning.” This is not saying that jurors should scrutinize the facts underlying an expert's opinion, or that jurors are at liberty to reject expert opinions with unsound bases. Quite to the contrary, Sargon declares it the responsibility of the trial court to make a threshold determination whether the reasoning of the expert is reasonable. No prior decision ever explained Section 802 this way, as illustrated by the fact that Sargon did not cite a single previous opinion of the court on this point, instead citing a recently published law review article.
Finally, Sargon adopted the “analytical gap” test set forth in General Electric Co. v. Joiner, 522 U.S. 136 (1997), which the court cited with approval interpreting Section 802. In Joiner, the court excluded expert witness testimony on medical causation due to partially faulty assumptions by the experts, and because the studies relied on involved short-term, high level exposure in contrast to plaintiff’s long-term, low level exposures. In short, the court felt the evidence was not sound enough to support the expert’s opinion.
Interestingly, the evidence at issue in Joiner mirrors the type of evidence that the defendant in Roberti fought in vain to exclude under the Kelly/Frye rule. The Roberti court perceived that there was “no authority or rationale” to apply a “Daubert threshold reliability analysis” to scientific evidence that was not within the ambit of the Kelly/Frye rule, such as expert medical testimony. However, that is exactly what we have now — the Kelly/Frye rule, which applies to new scientific techniques; and, a threshold reliability test, pursuant to Sections 801 and 802 (as opposed to Daubert), for all expert testimony, regardless of whether the testimony falls within the ambit of Kelly/Frye.
More than anything else, this is the true meaning of Sargon.
