Tag Archive for: scott-hengesbach

Jury Awards $1.6 Million Verdict After $37 Million Demand

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After a 17 day trial, a Los Angeles County jury reached a verdict in a case involving a self-employed compound pharmacist who was injured during a yoga class when a stretch band detached from the wall and some metal pieces of the band struck the base of her skull. Scott L. Hengesbach of Murchison & Cumming represented the yoga studio.

The yoga studio admitted it was negligent and, that its negligence was a cause of the plaintiff’s injuries and damages. The studio contended that the yoga band was defectively manufactured, defectively designed and, that the manufacturer failed to provide adequate warnings and instructions to the studio and users about the prospect of the bands coming apart.

This incident caused the band to act like a slingshot, leading to a seizure lasting about 30 seconds. The plaintiff experienced three more seizures, with the last one observed by EMTs who labeled the events as tonic-clonic seizures. The plaintiff spent two days at Northridge Hospital where she experienced a couple more seizures, one of which was observed by the attending neurologist.

Five months after the incident, the plaintiff returned to the neurologist at Cedars Sinai, still experiencing seizures, headaches, neck pain, post-concussive symptoms, anxiety, depression, irritability, and insomnia. Approximately six months post-accident, the plaintiff returned to work and suffered a seizure captured by a security camera in her pharmacy, leading to her taking another few months off work.

In March 2018, she was diagnosed with traumatic brain injury, post-concussive syndrome, post-traumatic headaches, and likely non-epileptic, psychogenic seizures. Brain MRIs in 2018 and 2020 again revealed two small infarcts in the plaintiff’s right frontal lobe, which her experts later described as gliosis (scarring) due to the subject head trauma. The plaintiff next saw a neurologist at UCLA, who diagnosed her with a frontal lobe seizure disorder, also known as partial seizures, which he correlated with the abnormal MRI findings.

After two days of deliberations, the jury entered a verdict of 65% responsibility for the yoga studio in the amount of $1.6 million, a positive result after the plaintiff’s closing demand of $37 million.

Defense Verdict in Brain Injury Case – Plaintiff demanded $19 million

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A San Bernardino jury returned a verdict in favor of a truck driver training school, represented by Murchison & Cumming attorneys Scott L. Hengesbach and Claudia Borsutzki.

In the case, Richard Boyes v. Roadmaster Drivers School of Fontana, Inc., Mr. Boyes fell when exiting the cab of a school-owned tractor-trailer and hit his head. He claimed that the school did not provide sufficient water to stay hydrated or shade in extreme heat on the school’s skill training pad and neglected to call the paramedics after his fall. He alleged to have suffered a severe brain injury.

The defendant denied its negligence. It contended that it provided enough water and shade at the school and acted reasonably when it did not obtain medical attention given the absence of outward evidence of an injury and the plaintiff’s repeated statement that he did not want the defendant to call for medical attention. The defendant was able to present enough evidence to raise sufficient doubt in the mind of the jury as to the validity of plaintiff’s alleged damages. The jury concluded that although the defendant should have obtained prompt medical attention for the plaintiff, the failure to do so was not a cause of the plaintiff’s injuries and damages.

After 14 days of trial, the jury returned a 12-0 verdict for the defense.

Finding the True Meaning of Sargon

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By: Scott L. Hengesbach

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.

What Insurance Professionals Should Know about Howell v. Hamilton

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By: Scott L. Hengesbach

On August 18, 2011 the California Supreme Court issued its long-awaited decision in the matter of Howell v. Hamilton Meats & Provisions, Inc., 53 Cal.4th 541 (2011). The case establishes a critical limitation on a plaintiff’s right to recover damages for past medical expenses, sets forth new procedures for addressing this issue, and leaves open to debate the admissibility of evidence of the plaintiff’s medical charges exceeding that which was paid by insurance.

Howell essentially holds that a plaintiff’s recovery for past medical expenses is limited to the amount paid by insurance.

The California Supreme Court concluded its analysis in Howell by clearly stating:

“We hold . . . that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial.”

In other words, the plaintiff is not entitled to recover as damages the amount that was charged by a health care provider when the provider accepts less than the amount billed for their services, and the plaintiff is not responsible for paying the difference between the amount that was billed by the provider and the amount his or her insurer paid the provider. At the same time, in order to avoid contravening the collateral source rule, the fact that plaintiff’s bills were paid by insurance is not to be made known to a jury.

Since the plaintiff may recover the full amount billed when the plaintiff remains liable for the amount that insurance does not pay the provider, the defense needs to prove that the provider has accepted the amount paid by the insurer as full payment of the charges at issue. This was shown in Howell through affidavits obtained from the plaintiff’s health care providers. The importance of such evidence in future cases cannot be overstated.

Howell eliminates the need to file a post-trial Hanif motion, calling instead for a motion for new trial.

Prior to the decision in Howell, many California courts followed the approach to recovery of past medical expenses outlined in the case of Hanif v. Housing Authority (1988) 200 Cal.App.3d 635. In Hanif the court held that a plaintiff’s recovery of past medical expenses was limited to the amount paid by Medi-Cal. However, because the amount of the charges for medical services was admitted into evidence, Hanif called for the defense to make a post-trial motion to reduce the amount of a jury’s award of past medical expenses to the amount paid. Howell eliminates this procedural approach, instead calling for the defense to move for a new trial in the event that a jury awards the plaintiff more than he or she is entitled to for past medical special damages. In response, the plaintiff has the option of accepting the lesser amount the plaintiff was entitled to recover or, proceeding with a new trial. So long as juries follow an instruction based on Howell that clearly states that they are not to award the plaintiff more than the amount that has been paid for plaintiff’s past medical expenses, which defendants should request going forward, motions for new trial should not be necessary.

Howell does not hold that evidence of the amount billed for past medical expenses is inadmissible.

Where private insurance has paid the plaintiff’s past medical bills and the plaintiff is not liable for the difference between the amount billed and the amount paid, the Howell court unequivocally held that a plaintiff may only recover as damages the amount paid by insurance to the plaintiff’s health care providers. However, even under these circumstances the Howell court did not hold that evidence of the amount billed by plaintiff’s health care providers must be excluded. Rather, the Howell court left this question to be decided on a case-by-case basis until the court has an opportunity to revisit the issue. The court left the issue open because the defendant in Howell did not contest the relevance of plaintiff’s past medical charges.

Can defendants move to exclude all evidence of the amount billed for plaintiff’s past medical care after Howell?

Yes, the defense can move to exclude all evidence of the amount billed for a plaintiff’s past medical care assuming, of course, that the defense can prove that the plaintiff does not remain liable for the difference between the amount billed for the services and the amount paid by insurance. Whether a motion to exclude all evidence of the amount billed for past medical care will be granted depends on whether the trial court in a given case determines that evidence of the amount billed is, or is not, relevant either to plaintiff’s claims for future medical expenses or for pain and suffering. Again, because the defense in Howell did not argue that all evidence of past medical charges was irrelevant, the Howell court expressly stated that it was not deciding whether such evidence was relevant to either plaintiff’s damages for future medical care or, plaintiff’s claim for pain and suffering. Therefore, the onus is on defense counsel to persuade the court in future cases that the amount billed for plaintiff’s past medical care has no relevance to plaintiff’s claims for future medical expenses and plaintiff’s pain and suffering.

Under what circumstances are defendants likely to face greater difficulty excluding all evidence of the amount billed for a plaintiff’s past medical care?

Since it should not be difficult to persuade a court that the amount billed for a plaintiff’s past medical care is no more or less indicative of the extent of the plaintiff’s pain and suffering than is the amount actually paid for such care, defendants likely will face greater difficulty excluding all evidence of the amount billed for past medical care in cases involving claims that the plaintiff will need future medical care. In particular, it can be expected that when a plaintiff’s expert contends that the plaintiff will need the same treatment he or she received in the past, such as physical therapy or a particular type of surgery, like knee replacement, plaintiffs will maintain that the amount billed for such services in the past evidences the likely cost of such services in the future. In response, defendants likely will contend that an expert for the plaintiff can opine as to the anticipated cost of such future services without relying on evidence of what the plaintiff was charged for the services in the past. However, if the defense contests the opinion of plaintiff’s expert as to the anticipated cost of the future treatment, and the amount the plaintiff was previously billed dovetails with the opinion of the plaintiff’s expert, the defense may be hard-pressed to exclude the plaintiff’s previous charges from the evidence.

The deadline to grant a rehearing or modification has been extended to November 16, 2011.

Scott Hengesbach and William Naeve to Speak at USLAW Network Five City Tour

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LOS ANGELES – Scott L. Hengesbach and William D. Naeve have been selected to speak at the Dallas, Texas and Los Angeles, California stops of USLAW Network’s Five City Tour, respectively. Mr. Hengesbach is slated to speak on the topic, “Emerging Neuroimaging Techniques Influencing Brain Damage Claims,” and Mr. Naeve will present, “The Stray Remarks Doctrine: Free Speech is Not Necessarily Free.”

The conference will be held on January 18, 2011 in Dallas and March 3, 2011 in Los Angeles, and will feature speakers from USLAW member firms. USLAW is taking the Network on the road, making stops at five different cities along the way as part of their one-day education programs, in celebration of the organization’s 10th Anniversary (2001 – 2011).

Mr. Hengesbach is an immediate Past-Chair of the firm’s Toxic Tort and Environmental Law practice group. He has presented toxic tort and environmental topics at the 14th Annual National Forum for Environmental and Toxic Tort Issues (FETTI) Conference and USLAW Network’s Client Conferences. Mr. Naeve is Co-Chair of Murchison & Cumming’s Employment Law practice group, and has authored articles on discrimination and employment law for the Orange County Business Journal.

About the USLAW NETWORK
USLAW NETWORK is a national organization composed of 64 independent, defense-based law firms with over 4,000 attorneys covering the United States and Latin America. Among the firms, there are over 150 offices in 47 US states. An alliance with the Trans-European Law Firm Alliance (TELFA) gives them access to 25 European law firms each representing its own jurisdiction and a similar relationship with ALN Limited enables USLAW to partner with 10 firms in East and Central Africa. To learn more about USLAW, please visit www.uslaw.org.

Tort Trends: California Nevada as Civil Case Trouble Spots for Corporate Defendants

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By: Scott L. Hengesbach

Despite a continuing national trend of decreasing numbers of case filings, civil litigation for corporate defendants continues to be a strain on resources in particular states, according to comprehensive reports issued by two leading tort reform groups.

Both California and Nevada have been singled out by the U.S. Chamber of Commerce’s Institute for Legal Reform, and the American Tort Reform Association, as venues for tort and commercial litigation that generally favor plaintiffs due to a variety of factors that may have nothing to do with a the relative merit of a case.

The Chamber Institute of Legal Reform’s 2008 poll of general counsel ranks California as No. 44 among the 50 states, with only West Virginia, Louisiana, Mississippi, Alabama, Illinois and Hawaiii being rated worse as venues for civil case defendants. This continues a poor trend for the Golden State, which was ranked No. 45 in last year and No. 44 in 2006 and continues to render large verdicts and uncertain judicial rulings in various areas, particularly Los Angeles, San Francisco, and Alameda county courthouses.

Nevada was ranked No. 40 in the same 2008 poll, dropping a stunning 12 spots in one year as media attention led by the Los Angeles Times focused on the close relationship between members of the trial bar there and judges.

In fact, the American Tort Reform Association, in its most recent assessment based on its own analysis, and interviews of litigator and litigants, ranked Clark County, Nevada (which includes Las Vegas) as the No. 5 “Judicial Hellhole” in America behind only long-time notorious pro-plaintiff venues such as South Florida, the Rio Grande Valley/Gulf Coast of Texas, Madison County, Illinois and West Virginia.
This was Clark County’s first time on the list and the ATRA justified the assessment due to its contention that “The decks appear to be stacked in favor of local lawyers who reportedly ‘pay to play’ in the county’s courts. Judges in Clark County have in recent years been accused of issuing favorable ruling in cases that may benefit friends, campaign contributors or even their own financial interests, according to the ATRA.

California remained on the most recent “Judicial Hellholes Watch List” in part because of continuing general complaints about the Los Angeles County Superior Court Central Civil West venue, known among the plaintiff’s bar as “The Bank,” perceived anti-buisness attitudes of jurors in Los Angeles and the San Francisco bay area, failure of the courts to rein in expenses of class action and multi-party complex tort cases, and Americans With Disabilities Act cases filed against smaller businesses. “The Bank” has been the site of some of the largest personal injury jury verdicts  in U.S. litigation history including billion-dollar plus awards to plaintiffs against companies such as General Motors and Phillip Morris.

Plaintiff lawyers have been known to seek out the possibility of filing tort cases in either San Francisco or Alameda, should, for example, even one relatively minor defendant have business in the area, even if/when the plaintiff or heir of plaintiffs never lived or worked in the area, due the reputation of jurors and some judges there for being unsympathetic to both big and small business.

Five Named Southern California Super Lawyers

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Murchison & Cumming is proud to announce that Friedrich W. Seitz, Michael B. Lawler, Jean M. Lawler, Edmund G. Farrell, III, and Scott L. Hengesbach have been named Southern California Super Lawyers for 2006. Produced by Law & Politics, the list of Super Lawyers is based on surveys of more than 60,000 lawyers across nine counties, and reflects both peer recognition and professional achievement. Only the top 5% of attorneys practicing in Southern California are selected as Super Lawyers.

Friedrich Seitz is Managing Senior Partner and Chair of the firm’s Product Liability Practice Group. A prominent trial attorney and litigator in both domestic and international matters, Mr. Seitz also serves on the Special Arbitration Panel of the Los Angeles Superior Court.

Michael Lawler is a Senior Partner and Co-Chair of the Employment Practice Group Mr. Lawler has successfully tried over one hundred jury trials in the federal and state courts.

Jean Lawler is a Senior Partner and Chair of the Insurance Law and Business Transactions Practice Groups. Immediate Past President of the Federation of Defense & Corporate Counsel, Ms. Lawler was awarded the 2006 Service Award by the Defense Research Institute for her years of leadership and service to that organization.

Edmund Farrell is a Senior Partner and Chair of the firm’s Law and Appellate Practice Group. Mr. Farrell concentrates his professional activities in the area of law and motion and appellate practice, and has effectively managed the handling of over one hundred appeals and writ petitions.

Scott Hengesbach is a Partner and Chair of the Toxic Tort and Environmental Law Practice Group. A seasoned trial attorney, Mr. Hengesbach focuses his practice in the areas of toxic tort and environmental litigation, including litigation involving benzene, hard metals, silica, welding rods and asbestos.

 

About Murchison & Cumming, LLP

With a firm history dating to 1930, Murchison & Cumming, LLP is a premier civil litigation firm with five offices in California and Las Vegas, whose attorneys specialize in the defense of domestic and international businesses, insurers and individuals, at trial and on appeal. The Firm’s attorneys also handle employment matters and business transactions. For additional information, please visit our website at www.murchisonlaw.com.

Truck Manufacturers Not Liable – Plaintiff Files Voluntary Dismissal

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The plaintiffs are residents of the San Pedro area, near the Port of Los Angeles, who alleged that they suffered various personal injuries and a decrease in value of their property because of increased air pollution in their neighborhood as a result of recent expansion of the Port. The plaintiffs named as defendants numerous shipping operations, cruise lines, port operators, trucking companies and diesel truck and engine manufacturers, among other entities.

Partner Scott L. Hengesbach of Murchison & Cumming represented Freightliner, LLC, a manufacturer of large diesel trucks, in this matter. M&C, through the assistance of Adrian J. Barrio, took the lead in preparing and filing a demurrer which attacked the entirety of the Complaint on the grounds that diesel truck manufacturers could not be held liable to the plaintiffs for their alleged exposure to diesel exhaust. The essence of the demurrer was that truck manufacturers could not be held liable for unspecified exposures of the plaintiffs to unidentified vehicles allegedly traveling near the plaintiffs’ residence. Other truck manufacturers, such as Mack and Volvo, joined the demurrer and/or filed similar demurrers.

Rather than attempt to oppose these demurrers, plaintiffs elected to dismiss its claims against all diesel truck and engine manufacturers and proceed against the balance of the defendants.

New News On Excluding Unreliable Expert Testimony

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By: Scott L. Hengesbach

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.

President of Dietary Supplement Maker Dismissed from Products Liability Case

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Scott L. Hengesbach, Jane O. Matsuda, Gina E. Och and Tina D. Varjian recently obtained a dismissal in a products liability case. Plaintiff sued defendant, the president and sole shareholder of a maker of dietary supplements, for injuries she allegedly sustained by taking one of the products manufactured by defendant’s company.

The defense moved to dismiss the complaint against defendant via a motion to quash summons based on the contention that the court could not exercise personal jurisdiction over the defendant. Specifically, the defense argued that defendant, a resident of Missouri, did not have sufficient minimum contacts with the State of California. The plaintiff argued that California had personal jurisdiction over defendant because he was allegedly a designer and promoter of the dietary supplement, as well as President and sole shareholder of the company.

The trial court granted the motion and dismissed the defendant. Plaintiff appealed the dismissal. On appeal, the order of dismissal was affirmed by the Court of Appeal. The appellate court found that the trial court did not err in finding that the State of California could not exercise personal jurisdiction over defendant because, despite his close connection with the company, he did not purposely avail himself of the benefits of California or intentionally cause an effect in California.