Justice Wiley Urges Bar to Consider Independent Experts

Timothy Kowal, Esq.
February 24, 2021

In a first-of-its-kind case, California's Court of Appeal has authorized a "Wi-Fi Sickeness" case to proceed. Although such cases have been rejected in ADA cases in federal courts, the California court in Brown v. Los Angeles Unified School District (D2d8 Feb. 18, 2021) No. B294240 noted the broad "physical disability" protections of the California Fair Employment and Housing Act (FEHA) and California's liberal pleading standard made the difference here.

In a concurring opinion, Justice Wiley says he sees how we practitioners are using expert witnesses, and he doesn't like it. He urges the bar instead to consider using court-appointed experts.

If I may be permitted to disagree, I think this is not the right case for that. In a cause of action for accounting, by all means. But in a case involving still-emerging science, fact-finders need to be presented with what the parties think the most compelling hypotheses.

On a preliminary point concerning appellate record designation: The Court rejected the school district's challenges to the sufficiency of the appellate record. The district noted that, in plaintiff's challenge to the judgment of dismissal following the trial court's order sustaining the district's demurrer without leave to amend, the plaintiff did not include her original complaint, and the demurrer and ruling concerning that pleading.

This was of no moment because an amended pleading "supersedes the original complaint." (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1372.) "The record on appeal contains the operative FAC and LAUSD's demurrer; these are the pleadings necessary for our review."

On the other hand, if a plaintiff purports to make contradictory allegations in an amended pleading amounting to a "sham pleading," the defendant should be sure to designate those earlier pleadings in a respondent's counter-designation.

The (mis)use of expert witnesses:

Though concurring in the result, Justice Wiley anticipates this case will be decided on expert advocacy, a subject on which he has some opinions. Justice Wiley worries that experts-for-hire seeking recognition and promotion may be all too ready to peddle "junk science in the courtroom." For this proposition, Justice Wiley marshals law review articles written by law professors (presumably also seeking recognition and promotion) stating that expert opinions often are "made to correspond with the wishes or interests of the parties who call them," and that experts often become "incapable of expressing a candid opinion."

"The use of expert witnesses," Justice Wiley intones, "has run riot." Too often they are "a weapon of pure advocacy" that "can imperil the search for truth."

The better course: court-appointed experts under Evid. Code, §§ 730-732. "Preferably in consultation with counsel and avoiding ex parte contacts, the trial court can select and appoint an independent expert of unquestioned stature. The parties foot the bill. The expert can write a report, be deposed, testify, and be cross-examined, like any other expert. Crucially, the jury can learn this expert has been appointed by the court rather than hired by the parties." Although underused because parties "never suggest it," Justice Wiley notes that "the hard-working judges with experience 'reported a high degree of satisfaction with the services provided by the expert . . . .'"

Justice Wiley encourages the parties to consider this option in this case.

Curiously, however, Justice Wiley does not await the submission of independent experts on the matter before chiding plaintiff's claims. Justice Wiley "worr[ies] about giving any sort of green light to this unprecedented and unorthodox disability claim." He notes "we are the first court in the United States of America—a nation of over 300 million people—to allow a claim that "Wi-Fi can make you sick."" If this leaves any doubt whether he thinks this is a not a very good thing, Justice Wiley then juxtaposes the idea with the "fear of black cats."

But in fact, the majority opinion notes that, in this early stage of Wi-Fi technology, the science remains largely unsettled, and the long-term effects of Wi-Fi woefully understudied. The majority recounts that one environmental scientist mentioned during public comment for the district's Wi-Fi system that "she could not support URS's [the district's retained expert] conclusions about the safety of the new Wi-Fi system." The district's own medical personnel admitted they "were uncertain about any long-term effects."

We often forget how slowly science moves, and that there are few shortcuts. What many, including Justice Wiley, sometimes call "junk science" may just be part of the hypothesis and trial-and-error phases of the scientific method.

I suspect that, despite Justice Wiley's concurrence, the parties here will present the best expert hypotheses they can muster for their respective sides of this important issue of technology and public policy. Watch this space.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.