June 2019 Update
Summarized below are some of the more important developments included in this update since publication of the May 2018 update.
Subject Matter of Expert Testimony
Expert opinion appropriate. In Eng v Brown (2018) 21 CA5th 675, 709, the court stated that expert testimony does not need to respond to another expert’s testimony to be relevant, probative, and admissible. See §2.1.
In People v Powell (2018) 5 C5th 921, 962, the California Supreme Court found that expert testimony was appropriate on whether the defendant was culpable for the murders on the ground of insanity. See §2.2.
Court may consider expert testimony on tracing separate property in a marital dissolution action. See In re Marriage of Ciprariin (2018) 32 CA5th 83, 95, in §2.2.
Expert properly testified as to whether safety feature would have prevented accident in Kim v Toyota Motor Corp. (2018) 6 C5th 21, 27. See §6.36.
Expert opinion unnecessary. In Knutson v Foster (2018) 25 CA5th 1075, 1097, expert testimony was not needed because emotional distress due to the stress and pressure from swimming performance markers is not beyond common experience of jurors. See §2.3.
Information Relied on by Expert
In Olive v General Nutrition Ctr., Inc. (2018) 28 CA5th 1020, 1035, the court found that there was too great of an analytical gap between the economic data supposedly relied on by the expert and his opinion. See §4.1G.
In Belfiore-Braman v Rotenberg (2018) 25 CA5th 234, 248, the trial court reasonably concluded that the expert’s views on causation of the damage to the patient’s sciatic nerve were too speculative to present to the jury. See §4.1G.
Expert properly used Ident-A-Drug website to identify pills because it is a “published compilation” under the hearsay exception in Evid C §1340. See People v Espinoza (2018) 23 CA5th 317, 322, in §4.3.
Reliance on hearsay. In People v McVey (2018) 24 CA5th 405, 416, the court held that a hypothetical would improperly allow the expert to rely on case-specific hearsay. See §4.1A.
The California Supreme Court held that, if an expert testifies to case-specific out-of-court statements on which he or she relied for their truth to form an opinion, then such statements are hearsay, but if the expert relies on hearsay in forming his or her opinion and tells the jury in general terms that he or she did so, it does not violate hearsay rules or the confrontation clause. People v Perez (2018) 4 C5th 421, 456, in §4.3. See People v Flint (2018) 22 CA5th 983, 1002 (court held that admission of expert’s testimony that was in part based on case-specific hearsay gleaned from out-of-court statements in reports was harmless error) and People v Meraz (2018) 30 CA5th 768, 776 (court analyzed background expert testimony versus case-specific testimony in instructive application of People v Sanchez (2016) 63 C4th 665), in §4.3.
Experts and Summary Judgment Process
In Property Cal. SCLW One Corp. v Leamy (2018) 25 CA5th 1155, 1063, the trial court properly excluded the expert’s declaration on summary judgment for lack of foundation. See §16.2.
In three new cases, the court found the experts’ declarations to be inadequate to support the motions for summary judgment. See Willhide-Michiulis v Mammoth Mountain Ski Area, LLC (2018) 25 CA5th 344, 355 (instead of informing court on customary practices of snowcat driving, experts’ declarations only provided ultimate conclusions of law); Doe v Good Samaritan Hosp. (2018) 23 CA5th 653, 664 (expert’s declaration was conclusory and did not specifically describe standard of care); and Alexander v Scripps Mem. Hosp. La Jolla (2018) 23 CA5th 206, 228 (medical expert’s declaration in opposition to summary judgment motion was conclusory and lacked foundation on causation and standard of care), in §16.3.
In Sonner v Schwabe No. Am., Inc. (9th Cir 2019) 911 F3d 989, 992, the plaintiff met her burden on summary judgment in a false advertising case by providing expert testimony on the ineffectiveness of a health product. See §16.6.
Exchange of Expert Witness Information
If the treating physician’s proposed testimony goes beyond his or her personal observations and includes opinion testimony based on review of independent materials, then the expert disclosure rules should apply to the opinions, analogous to those that would be given by a retained expert. The opinions that go beyond the non-disclosed expert’s role as a treater are properly excluded in these circumstances. See Belfiore-Braman v Rotenberg (2018) 25 CA5th 234, 245, in §10.2.
Failure to properly designate an expert witness could result in exclusion of that expert’s testimony. See Krolikowski v San Diego City Employees’ Retirement Sys. (2018) 24 CA5th 537, 571 (witness was not listed as expert under CCP §2034.260), in §10.25.
In U.S. v Ornelas (9th Cir, May 15, 2018, No. 15–10510) 2018 US App Lexis 30074, *23, the defense’s failure to timely reciprocate the government disclosure of expert witnesses properly resulted in the exclusion of the defense expert’s testimony. See §10.48.
Expert Witness Costs
In Huerta v Kava Holdings, Inc. (2018) 29 CA5th 74, the court found that the defendant was not entitled to an award of expert witness fees because CCP §998 does not apply in nonfrivolous Fair Employment and Housing Act actions. See §10.46A.
The court in Gonzalez v Lew (2018) 20 CA5th 155, 161, collected and thoughtfully analyzed multiple California cases that have addressed the clarity of joint CCP §998 offers made by or to multiple parties. See §10.46B.
In Olive v General Nutrition Ctrs., Inc. (2018) 30 CA5th 804, 820, the court of appeal affirmed the exclusion of expert testimony purporting to quantify a plaintiff’s damages because the expert’s damage allocation relied exclusively on another expert’s opinion, which was found to be subject to exclusion because it was based on speculation and conjecture. See §4.2.
In People v Chavez (2018) 22 CA5th 663, 681, the court did not abuse its discretion by excluding expert testimony “on how a traumatic event or other psychological factors affected a specific witness’s memory or the reliability of that witness’s identification.” See §4.18.
The court in Palmieri v State Personnel Bd. (2018) 28 CA5th 845, 860, found that the effect of California statutes presents purely legal questions on which expert testimony is not permitted. See §5.3.
The admissibility of fingerprint evidence was reaffirmed by the California Supreme Court in People v Daveggio & Michaud (2018) 4 C5th 790, 831, citing People v Rivas (2015) 238 CA4th 967, in which the court reiterated that fingerprint evidence is not subject to a foundational hearing under Kelly, “because fingerprint evidence is not a novel scientific technique and does not have a misleading aura of certainty.” See §4.19.
Examination of Expert
In Pebley v Santa Clara Organics, LLC (2018) 22 CA5th 1266, 1271, an in limine hearing under Evid C §402 resulted in exclusion of the expert’s testimony on professional services fees because his opinion on those fees required references to insurance. See §14.2.