Legal News and Appellate Tips

Sometimes it is hard to pinpoint what actually caused a harm, like a medical injury. But we can use the process of elimination. An opthalmologist expert offered an opinion based on the process of elimination—differential etiology, in medical jargon. But the trial court excluded it, and then granted the defendant hospital’s motion for nonsuit.

That was an abuse of discretion, held the appellate court in Siemon v. Regents of the University of California (D1d1 Oct. 19, 2022 no. A160654) 2022 WL 12083207 (nonpub. opn.). Differential etiology—i.e., process of elimination—is a valid method of establishing proximate causation, so long as the jury finds it credible.

These close legal calls on expert evidence are often made during the trial, and the parties have to go through trial, judgment, postjugment motions, and appeals before knowing whether the key evidence in the case stays in or comes out.

Here, the trial court made the call before trial began, and the Court of Appeal weighed in on the call after a nonsuit. When the parties start trial again, the plaintiff will be armed with the Court of Appeal’s observation that the plaintiff’s evidence “would be sufficient to support a judgment in [her] favor.” That counts for something.

In one of the many lawsuits by hip-replacement patients against Zimmer, Inc., the maker of the Durom Cup, a court of appeal recently held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. See Kline v. Zimmer, Inc. (May 26, 2022, B302544) __Cal.App.5th__, 2022 Cal.App.Lexis 460. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

You really ought to follow a court’s pre-trial order, but say you overlook something, like a witness list. The judge came down hard on the forgetful plaintiff in Harber v. Williams (D4d2 Sept. 12, 2022 No. E077036) ___ Cal.Rptr.3d ___, 2022 WL 4129702. Harber didn’t have any witnesses other than herself, but the judge prevented her from testifying, which had the effect of a terminating sanction.

Fortunately for Harbert, the Court of Appeal reversed. In a partially published opinion, the court rejected the Harber’s “maximalist” view that a trial court could never deny a party’s right to present evidence and testify. But the court nonetheless concluded that, here, the trial court had abused its discretion.

The most interesting of the factors the court identified was the fact that the pre-trial order indicated a “one size fits all” sanction when it stated that “you will not be permitted to call any witnesses not included in the witness statement.” “In other words,” the court went on, “the trial court announced, up front, that it would not exercise any discretion. The inherent power to dismiss, however, is a discretionary power. “A trial court's failure to exercise discretion is itself an abuse of discretion. [Citation.]””

After an ear doctor was sued for pushing a charity on one of his patients, the jury returned a defense verdict. But the Court of Appeal reversed in Silvester v. Niparko (D2d7 Jun. 20, 2022 no. B301926) 2022 WL 2197100 (nonpub. opn.), holding that the trial court abused its discretion when it refused to allow Silvester to offer evidence of his impaired and vulnerable state when Dr. Niparko pushed his charity on him.

Seldom do judgments get reversed based on evidentiary rulings. But the judge here steadfastly kept out all Silvester’s evidence on an element of his claims, even rebuttal evidence.

There was one more curious detail in the opinion. The opinion notes that, during the trial, “Respondent agreed to a general verdict form in exchange for Silvester's written agreement that he would not seek to execute on any estate assets other than insurance and indemnity protection.”

Typically, defendants prefer to have special verdict forms, because it is easier to challenge them in posttrial motions and appeal. Silvester, to get his way on a general verdict form, agreed to limit his rights to enforce the judgment against the estate beyond the insurance and indemnity coverage.

This is an interesting strategy that may be worth exploring in your next trial.

CEB has my article, “Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict,” about Kline v. Zimmer, Inc. (May 26, 2022, B302544) ___ Cal.App.5th ___. Here is the link: https://bit.ly/3bqglfY

The case involved a trial error in which the judge excluded the defendant’s expert to rebut the plaintiff’s expert on causation. The trial court excluded the expert because the expert’s confidence in the opinion did not exceed 50% likelihood.

The Court of Appeal reversed. A defendant’s expert doesn’t have to prove 51% likelihood. The 51% threshold is the plaintiff’s burden of proof, not the defendant’s. And where the excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” This was a structural error, requiring automatic reversal.

In one of the many lawsuits by hip-replacement patients against the maker of the Durom Cup, Kline v. Zimmer, Inc. (D2d8 may 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

Basically, the plaintiff offered an expert to opine that the Durom Cup was the cause of the pain and suffering. Zimmer’s expert was going to opine about other possible causes, even if they were less than 51% likely to be the cause. The trial court excluded it because medical expert opinion has to be 51% likely.

The Court of Appeal reversed. A defendant’s expert doesn’t have to prove 51% likelihood. The 51% threshold is the plaintiff’s burden of proof, not the defendant’s.

And where the excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” This was a structural error, requiring automatic reversal.

The Upshot: This is the second reversal after a trial, which means the parties will have to try this case a third time. The trial judge, the Hon. Daniel J. Buckley, is a former personal-injury defense attorney. This suggests that, despite the care and experience devoted to this trial, trial procedure governing experts is both extraordinarily important and extraordinarily variable. To the extent expert issues can be crystallized in motions in limine, trial counsel should consider taking up a writ petition.

Trial judges have wide latitude over the evidence that comes into the record at trial. The judge might sustain an objection to your smoking gun, or could allow damaging evidence despite your valid objections. These problems may be raised on appeal, but appellate courts give trial judges wide latitude on evidentiary rulings.

But not in M.H. v. C.H. (D5 Mar. 18, 2022 no. F082268) 2022 WL 817842 (nonpub. opn.). In a proceeding for a domestic violence restraining order, the trial court “shall consider the totality of the circumstances” in making its ruling. (Fam. Code, § 6301, subd. (c).) This includes considering “the affidavit or testimony.” (§ 6300, subd. (a).)

The Fifth District Court of Appeal held that the trial court’s refusal to consider declarations or evidence other than offered at the evidentiary hearing “is contrary to law. Application of this erroneous view was a prejudicial abuse of discretion.”

#AppellateLinkedIn: Note the ambivalent framing of the nature of the trial court’s error: the court frames it as both “legal error,” and as “abuse of discretion.” Why do courts insist on doing this?

A trial court’s rulings on evidentiary objections are tough to reverse on appeal. But what about when the rulings are reflexive and not really supported by any analysis? In some cases, such “blanket” rulings may be found to be an abuse of discretion and reversed on appeal.

The appellant argued improper “blanket” rulings were the reason an anti-SLAPP motion was granted against him in *[Foley v. McElroy](https://casetext.com/case/foley-v-mcelroy?resultsNav=false&jxs=ca&tab=keyword)* (D4d1 Dec. 6, 2021 no. D077299) 2021 WL 5766572 (nonpub. opn.). But the Court of Appeal disagreed and affirmed.

Also: remember that anti-SLAPP orders are directly appealable. Do not wait around for a judgment.

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 have 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.

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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 may be 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. It was an abuse of discretion to exclude the second expert's opinion merely because it was based on the first expert's excluded report.

And trial counsel may have acted shrewdly in resting her case after the devastating ruling without offering other evidence, as it made it very easy to establish the ruling prejudiced her case.

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"I have done a lot of appeals," a colleague told me recently discussing how important evidentiary objections were at trial, "and I have never seen a court reverse because of an evidentiary ruling."

Responding to that challenge is Nicholson v. Southern California Edison Co. (D2d7 Jun. 22, 2021) no. B302287 (nonpub. opn.). Injured electricians sued Edison for negligence. The trial court granted summary judgment for Edison by excluding the plaintiffs' testimony.

This was an abuse of discretion. The evidence was based on personal knowledge, and it was relevant to a material fact. Reversed.

The upshot: Do not try to win a summary judgment motion by excluding the opposing party's evidence. Any victory by such means will likely be short-lived.

If new evidence is truly in reply to an argument raised for the first time in an opposition, the trial court abuses its discretion in excluding it. New evidence may […]