Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Experts

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

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.

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 in your expert-witness toolkit.

Read More
Medical expert’s opinion based on process of elimination was improperly excluded from trial, appellate court holds

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.

Read More
Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict

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.

Read More
Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict

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.

Read More
Exclusion of Expert Opinion Held Structural Error on Appeal 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.

Read More
How the Medical “Standard of Care” Has Killed Two Presidents

Doctors who do not conform their practice to the “standard of care” risk disciplinary action from the state medical board. But not only is the development of the “standard of care” opaque and mysterious, it is often quite wrong. Appellate attorney Tim Kowal and health care litigator Rick Jaffe, Esq. discuss two presidents who died because of the “standard of care”: George Washington from bloodletting, and James Garfield from sepsis.

Read More
Ruling Excluding Expert Testimony on MSJ Reversed on Appeal

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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

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

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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Read More
Hearsay Evidence Through Expert Witness Held Improper; Judgment Reversed

One important case that counsel preparing for a trial need to keep ready to hand is People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which prohibits parties from offering otherwise hearsay evidence through their experts.

That is what the plaintiff tried to do in the catastrophic injury case of Townsend v. Olivo (D4d2 Jun. 15, 2021) no. E073183 (non-pub.). The plaintiff suffered injuries that would lead to amputation of his leg. His expert witness testified to the $1.1 million in future medical costs. But the expert admitted he had no knowledge relating to these future procedures and prosthetic devices. He had spoken with others about the costs, however, and so testified about that.

The Fourth District Court of Appeal held this was error. The expert’s testimony about future medical expenses was inadmissible hearsay. The foundational facts were outside of the expert’s personal knowledge, and no other witness supplied them, so no hearsay exception applies.

Read More
Wesson Oil Class Settlement Reversed: 9th Cir. Holds Trial Court Abused Discretion in Assuming Post-Cert. Settlement Was Not Collusive

Class actions only very loosely resemble the practice of law as most attorneys know it. Yes, they involve plaintiffs suing defendants in court before a judge. But most of the class members don't even know they're in the case, and wouldn't know their attorney if he showed up at their doorstep delivering a settlement check (in this case, a check for about $0.15). Things are much different for their attorneys, however, as was the case in Briseño v. Henderson, --- F.3d ---- (9th Cir. June 1, 2021), who proposed to pocket millions from what the Ninth Circuit held to be a collusive settlement agreement in a false advertising case over cooking oil.

The new clarification Briseño provides is that the rule requiring close scrutiny of class settlements applies both pre-class certification and post-class certification.

An ancillary lesson from Briseño is, experts will say anything.

And the much less important but more entertaining lesson from Briseño is: Judge Lee really loves puns (such as: the attorneys suing Wesson here were "hoping to strike oil"); and pop-culture references to Star Wars and the Hamilton musical.

Read More
Justice Wiley Urges Bar to Consider Independent Experts

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 are the most compelling hypotheses.

Read More

Tags

Podcast (129)
Videos (110)
Appealability and Appealable Orders (40)
Anti-SLAPP (29)
Legal Writing (29)
Oral Argument (26)
Mischief (25)
Statements of Decision (25)
Abuse of Discretion (24)
Record on Appeal (23)
Splits of Authority (23)
Stays on Appeal (22)
Waiver and Forfeiture (22)
Timely and Untimely Appeals (22)
Unpublished Opinions (22)
Notices of Appeal (21)
California Supreme Court (21)
Judgment Enforcement (20)
Arbitration (19)
Briefing (18)
Attorney Fees (18)
Sanctions (16)
Trial Strategy (16)
Dismissals (15)
Evidentiary Objections (14)
Summary Judgments and Summary Adjudications (13)
Dissents (13)
Collateral Orders (13)
Appellate Sanctions (13)
Preliminary Injunctions (13)
Writ Petitions (13)
Jurisdiction (12)
New Trial Motions (12)
Mootness (12)
Civility (12)
Timeliness (12)
Exclusion of Evidence (12)
Dismissed Appeals (12)
Experts (11)
Family Law (11)
Trial Procedure (11)
CCP 998 Offers (11)
Federal Courts (11)
Posttrial Motions (11)
Implied Findings (10)
Motions for Reconsideration (10)
Standards of Review (10)
Appellate Briefing (9)
Admission of Improper Evidence (9)
Appealability (8)
Settlements (8)
Respondent Arguments (8)
Disqualification (8)
Default Judgments (7)
Appellate Practice (7)
Trial Irregularities and Structural Errors (7)
Federal Appeals (7)
Discovery (7)
Ninth Circuit (7)
Stipulated Judgments (7)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (7)
Pretrial Procedure (7)
Probate Appeals (7)
Appellate Bonds (7)
Petitions for Review (6)
Depublished Opinions (6)
Ethical Duty of Candor (6)
Disentitlement Doctrine (6)
Substantial Evidence (6)
Litigation Tips (6)
Mediation (6)
Demurrers (5)
Right to Jury Trial (5)
Motions to Vacate and Set Aside Judgments (5)
Notices of Entry (5)
Legal Ethics and Professional Responsibility (5)
Trust and Probate (5)
Excessive Damages (5)
Summary Judgments (5)
Standing (5)
Frivolous Motions (4)
Motions to Vacate (4)
Prejudicial Error (4)
Tentative Rulings (4)
Appealable Orders (4)
Stipulated Reversals (4)
Jury Instructions (4)
Appeals Treated as Writs (4)
Motions in Limine (4)
Motions to Dismiss (4)
Expert Opinions (4)
Amicus Briefs (3)
Law and Motion (3)
Stays (3)
Tentative Opinions and Focus Letters (3)
Constitutional Law (3)
Legal Practice (3)
Recovery of Costs (3)
Pretrial Issues (3)
Legal Tech (3)
Juror Peremptory Challenges (3)
Class Actions (3)
Writs of Mandamus (CCP 1085) (3)
Forfeiture and Waiver (3)
Personal Jurisdiction (3)
Standards of Evidence (3)
Jury Waivers (3)
Summary Judgment (3)
Landlord Tenant (3)
Frivolous Appeals (3)
Alter Ego (2)
Medical Rights (2)
Stare Decisis (2)
Harmless Error (2)
Trial by Reference and Pro Tem Judges (2)
Untimeliness (2)
Comments (2)
Pleadings (2)
Record Designation (2)
Mistrials (2)
New Trial (2)
Premature Appeals (2)
Podcasts (2)
Waiver (2)
Finality and Final Orders (2)
PAGA Actions (2)
Attorney Client Privilege (2)
Civil Theft (2)
Invited Error (2)
Appeals Dismissed (2)
Contempt (2)
Remote Arguments (2)
Post Reversal Issues (2)
ADA and Unruh Accessibility Actions (2)
Court Reporters (2)
Clear and Convincing (2)
Persuasion (2)
Judicial Admissions (2)
U.S. Supreme Court (2)
Judicial Bias (2)
Closing Argument (1)
Notice of Appeal (1)
Property Rights (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Trespass (1)
Benefits Obtained Trespass Damages (1)
Judicial Estoppel (1)
Preclusion (1)
Unsupported Arguments (1)
Family Court (1)
Punitive Damages (1)
Summary Reversal (1)
Memorandum Opinions (1)
Employment Law (1)
Judicial Misconduct (1)
State Civil Procedure Comparison Project (1)
Anecdotes (1)
Law of the Case (1)
Record (1)
Summary Reversals (1)
Erie Problems (1)
Judicial Notice (1)
New Arguments (1)
Common Interest Doctrine (1)
Support Awards (1)
Designating the Record (1)
Inconsistent Verdicts (1)
Settled Statements (1)
Judicial Philosophy (1)
Waived and Forfeiture (1)
Consenting to Judgments (1)
Legal News (1)
Out-of-State Litigant (1)
Art of Persuasion (1)
Dicta (1)
Incorrect Decisions (1)
Moot Appeals (1)
Civil Code 3334 (1)
Premises Liability (1)
Inherent Authority (1)
Post-Appellate Issues (1)
Split Decisions (1)
Trial Tips (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Constitutional Litigation (1)
PAGA Attorney Fees (1)
Referral Fees (1)
Third Parties and Nonparties (1)
Motions for Judgment on the Pleadings (1)
Post Reversal (1)
Split of Authority (1)
Ninth CircuitAbuse of Discretion (1)
Forfeiture (1)
Per Se Errors (1)
Attorney Fees - CCP 1021.5 (1)
Issue Selection on Appeal (1)
Typeface (1)
Attorney Feese (1)
DismissalsAppealability and Appealable Orders (1)
PostJudgment Litigation (1)
Typography (1)
Administrative Law (1)
Exhaustion of Remedies (1)
Nonsuit (1)
Product Liability (1)
Covid (1)
Free Exercise (1)
Local Rules (1)
Restraining Orders (1)
Trade Restraints (1)
Attorney Misconduct (1)
Clerks Service of File Stamped Judgment (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Cross-Appeals (1)
Treble Damages (1)
Bankruptcy (1)
Motions to Quash (1)
Precedent (1)
Landlore Tenant (0)
No categories Legal Writing (0)
Appellate (0)
Professional Ethics (0)
Petitionf ro Review (0)
Retainer Agreements (0)
crossmenuchevron-downThe owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.