Ruling Excluding Expert Testimony on MSJ Reversed on Appeal

Timothy Kowal, Esq.
September 23, 2021

There are two noteworthy things about the published opinion in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609. First, it suggests how litigants might avoided the dreaded Sanchez rule that prevents experts from offering "case-specific hearsay" in their opinions. Second, it suggests some evidentiary rulings may be reviewed under the appellant-friendly de novo standard of review, rather than the deferential abuse of discretion standard.

In the Johnson & Johnson baby powder legal saga, a trial judge excluded plaintiff's expert witness opinion that J&J source of talcum powder had traces of asbestos. The judge pointed out, correctly, that the expert actually only looked at J&J's talcum sources outside the time period when the plaintiff, now having passed away from mesothelioma, had been exposed to J&J's product. Instead, the expert had relied on the work of another expert, but who was not part of this case.

Invoking the Supreme Court's holding in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), this "case-specific" hearsay was inadmissible. The court granted summary judgment for J&J.

The First District Court of Appeal in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609 agreed with the Sanchez analysis, to a point: "An absent witness's opinion may not be smuggled into evidence through an expert by dressing it up as background information."

But the court ultimately reversed because the case-specific hearsay was not the only basis for the plaintiff's experts' opinions. The experts also had drawn upon "various published materials from government agencies and professional standard-setting groups, published academic articles, published reports of “historical” testing, as well as testing data from their own labs." So even without the inadmissible case-specific hearsay, the court was "satisfied that Dr. Fitzgerald formulated his opinion based upon principles generally accepted in his area of expertise and that he applied those principles upon a proper evidentiary foundation."

The Court Reviewed the Evidentiary Ruling De Novo, Rather Than the More Lenient Abuse of Discretion:

Ordinarily, evidentiary rulings are only reversed on appeal if they abused the trial court's discretion. Even on summary judgment. “[T]he weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard.” (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)

But here, the First District Court of Appeal applied the de novo standard of review.

The court first noted that, before the Sixth District Court of Appeal's opinion had been superseded in Reid v. Google, Inc. (2010) 50 Cal.4th 512, it had expressed a strong view in favor of applying the de novo standard to evidentiary rulings in the summary judgment context: “ ‘Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors.’ ” But the First District correctly noted that the Supreme Court expressly declined to reach the issue of “whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.” (Id. at p. 535.)

And the First District here likewise declined "to announce a generally applicable de novo standard of review for evidentiary rulings on summary judgment." Still, the court concluded "the procedural setting we have here justifies de novo review on this record."

The court did not further explain what in particular about the "procedural setting we have here" led to de novo review. The rule one draws from Strobel is that the exclusion of expert opinion in the summary judgment context will be reviewed de novo.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at 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 or (714) 641-1232.