Exclusion of Expert Data Affirmed on Appeal; But Exlusion of Expert Opinion Based on That Data Reversed

Timothy Kowal, Esq.
August 30, 2021

When it comes to expert evidence, the trial court may properly exclude evidence that was not actually prepared by the expert. The normal rules of evidence authentication still apply, even where experts are concerned. But when an expert wants to offer opinions based on the same unauthenticated and unadmitted evidence, excluding that opinion is an abuse of discretion.

That is the holding of the published opinion in Zuniga v. Alexandria Care Center, LLC (D2d7 Aug. 13, 2021) 2021 WL 3579021 no. B297023. In an employee's PAGA claim, the employee-plaintiff retained two experts. One expert was retained to convert the employer's time records into an Excel spreadsheet. The second expert was retained to opine on the spreadsheet.

Experts Still Have to Properly Authenticate Their Reports:

But the first expert did not actually do the conversion. He firm farms out that process to India. And the expert did not oversee or validate the conversion either. All the expert did was talk about the general procedures his firm uses.

The court excluded the Excel spreadsheet from evidence. And the Court of Appeal affirmed. The Excel spreadsheet is a writing, and thus is governed by Evidence Code section 250. That means to be admissible plaintiff needed to introduce evidence sufficient to sustain a finding that they, in fact, accurately reflected what they were represented to be: the conversion into a computer-readable form of the employer's timekeeping and payroll records.

The employee and her expert failed to lay this foundation, because the expert had no role in the actual creation of the document. (Evid. Code, §§ 1400 [“[a]uthentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law”], 1401, subd. (a) [“[a]uthentication of a writing is required before it may be received in evidence”]; see People v. Goldsmith (2014) 59 Cal.4th 258, 266 [“[t]o be admissible in evidence, a writing must be relevant and authenticated”].) “Authentication is to be determined by the trial court as a preliminary fact.” (Goldsmith, at p. 266; see also id. at p. 267 [“The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered”].)

While the court did not have to exclude the Excel spreadsheet because of the failure to provide foundational testimony necessary to authenticate them, exclusion "was far from arbitrary, capricious or patently absurd."

Excluding Expert Opinion Merely Because It Was Based on Unauthenticated Evidence Was an Abuse of Discretion:

The plaintiff's second expert, however, did not offer any documentary evidence. Instead, his opinion was based on the first expert's Excel spreadsheet. That opinion was admissible unless it was too speculative: “[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772. (Sargon).

But the Sargon rule limits the trial court's discretion to exclude expert opinion: “The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture.... The goal of trial court gatekeeping is simply to exclude ‘clearly invalid and unreliable’ expert opinion.” (Id. at p. 772.)

Here, the trial court found the second expert's opinions speculative merely because they were based on the unauthenticated Excel spreadsheet that converted the employer's timekeeping and payroll data into a computer-readable form. But there is no such limit preventing experts from forming their opinions. "Evidence Code section 801, however, does not limit an expert to the use of admissible evidence in forming an opinion. It expressly provides the basis for the opinion must be reliable, “whether or not admissible.” (Evid. Code, § 801, subd. (b).) As our colleagues in Division Four of this court explained in Olive v. General Nutrition Centers, Inc. (2018) 30 Cal.App.5th 804, 821-822, “Expert opinion testimony may be based upon information furnished to the expert by others so long as the information is of a type reasonably relied upon by professionals in the relevant field....""

The court held it is improper to conflate mere "inadmissibility" of an expert's information with "reliability" of that information. The reliability question goes to weight of the opinion, not its admissibility. That is what the trial court did here, and that was an abuse of discretion.

Trial Strategy Tip: After successfully excluding plaintiff's expert opinions, the defendant-employer moved for judgment rather than offer its defense-in-chief, and that motion was granted. This might have been a miscalculation. When the Court of Appeal analyzed the trial court's error for whether it prejudiced the plaintiff, the court noted that the expert opinion was the only evidence supporting plaintiff's PAGA claim. So the exclusion of that evidence undoubtedly prejudiced plaintiff, even though the trial judge likely would not have credited the opinion as reliable even had it been admitted.

In other words, it might have been shrewd strategy on plaintiff's part by resting her case after the devastating expert ruling, without attempting to present any other evidence to support her claim. And it might have been a misstep by defendant to move for judgment without presenting evidence in defense: "Because Alexandria Care elected to rest without presenting any evidence contesting Dr. Drogin's opinions, we are unable to say total exclusion of his testimony was harmless. (Cf. Brown v. Colm (1974) 11 Cal.3d 639, 647 [“the exclusion of the sole expert relied upon by a party because of an erroneous view of his qualifications is, in a case where expert testimony is essential, an abuse of discretion as a matter of law requiring reversal”]; Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114 [“when a trial court erroneously denies all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven, the error is reversible per se because it deprives the party offering the evidence of a fair hearing and of the opportunity to show actual prejudice”].)"

Whether intentionally or not, trial counsel postured the trial court's evidentiary ruling in a way that made the exclusion of evidence effectively a per se error.

(On remand, count on plaintiff to make a peremptory challenge to the trial judge under Code of Civil Procedure § 170.6.)

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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