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.

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Tag: Experts

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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