Plan to Exclude an Expert Under Sargon? Don’t Forget Kelly

Timothy Kowal, Esq.
January 11, 2023

Preparing for an expert witness at trial? You probably are ready with the key cases of Sanchez (preventing experts from testifying about case-specific hearsay) and Sargon (prohibiting speculative opinions). Sargon has become the go-to objection for out-there expert opinions.

The talcum-powder manufacturer defendants raised Sargon in the mesothelioma case of Bader v. Johnson & Johnson, No. A158868 (D1d4 Dec. 23. 2022). The plaintiff recovered a $12 million verdict based in part on plaintiff’s expert’s novel opinion that fibrous talc causes cancer. The defendants argued that the broader consensus of experts did not agree with the plaintiff’s expert. So the defendants objected on the basis of Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769.

But that was the wrong objection. The Court of Appeal noted that Sargon “does not speak to whether a theory has achieved a consensus in the field sufficient to render it "generally accept[ed].”” If the defendants wanted to object that the expert’s opinion was a novel theory not generally accepted within the relevant scientific community, “their motion to exclude did not challenge his testimony based on Kelly and its progeny.” So the objection was forfeited.

Had the defendants raised a Kelly objection, it could have come out either way, so the court did not express a view one way or the other.

But don’t feel too badly for the defendants’ attorneys: the Court of Appeal went on to hold that, even if the trial court erred in allowing the expert opinion to come in, the error was harmless and did not affect the result.

The Upshot: Don’t stop at Sargon! Sargon is not a substitute for objections to novel and not-generally-accepted scientific theories. For that, make sure to keep People v. Kelly (1976) 17 Cal.3d 24 in your expert-witness toolkit.

h/t to Michael Shipley for covering this case.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes summaries of cases and appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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