Foundation Brief Urges Clarification in California Law


Atlantic Legal has filed an amicus brief on behalf of several scientists in Shelby v. SeaRiver Maritime in the California Court of Appeal, once again raising the issue of the standard of admissibility of scientific expert testimony in California.

The plaintiff, who served for many years (and continues to serve) as an able-bodied seaman on tanker vessels operated by SeaRiver and its predecessor Exxon Maritime, claims that his kidney cancer was caused by, or contributed to by, exposure to benzene liquid and vapor while loading, unloading and measuring the crude oil carried by the ships on which he served. (Benzene is a volatile component or product of crude oil.) His sole expert witness, a toxicologist, testified that he concluded that Shelby’s kidney cancer was at least in part caused by exposure to benzene, although there is no study which links benzene alone to renal cancer, and despite the fact that the expert did not know the actual degree of Shelby’s exposure to benzene. Benzene is a known carcinogen for acute myelogenous leukemia and possibly other blood cancers, but is not known to cause any solid tumor cancers, such as kidney cancer. Kidney cancer has been linked to smoking, obesity, high blood pressure, other kidney disease and long-term dialysis, certain occupational chemical exposures (but not benzene) and certain genetic or hereditary diseases.

The defendants’ motion to exclude the testimony of plaintiff’s expert was denied by the trial court.

The law on the admissibility of expert scientific testimony in California is somewhat confused. The California courts have repeatedly asserted that California has not adopted a Daubert -like standard, but instead adheres to the California version of the Frye rule B the Kelly/Frye rule B i.e., that an expert’s opinion must be based on a ‘generally accepted’ methodology. But this rule only applies to ‘new’ techniques. However, the California courts have also held that California Evidence Code Section 801 requires judicial scrutiny of all expert testimony to ensure its reliability.

Atlantic Legal argued (i) that plaintiff=s expert did not follow ‘generally accepted’ methodology because he ‘cherry picked’ the studies on which he purportedly relied and ignored the vast majority of studies that contradicted his thesis, and that he reached his conclusion without necessary information as to dose, and (ii) that the better view, and the one adopted by most California courts, is that California Evidence Code Section 801 establishes a ‘threshold requirement of reliability’ for expert testimony and that where experts, as in this case, base their conclusions on ‘findings’ or theories that are speculative, remote, or conjectural, their opinions do not constitute ‘substantial evidence’ sufficient to support a judgment. Our brief further argued that the language of Kelly indicates a broad concern with the admissibility of junk scientific evidence, and adopts Frye’s ‘conservative’ approach and recognizes the importance of ‘interpos[ing] a substantial obstacle to the unrestrained admission of evidence.’

The Foundation urged the court to clarify the California rule, and adopt the better view that the trial courts should play a more active ‘gatekeeper’ role in enforcing the ‘reliability’ requirement of Evidence Code Section 801.

To view Atlantic Legal’s brief, please click here.