The Foundation and the International Association of Defense Counsel (IADC) on May 24, 2013 jointly filed an amicus letter urging the Supreme Court of California to grant a petition for review in Garrett v. Howmedica Osteonics Corp., a case involving court scrutiny of expert testimony.
Garrett is a product liability case against the manufacturer and designer of a prosthetic leg. Defendants moved for summary judgment. Opposing that motion, the plaintiffs filed a declaration from a metallurgist claiming the material used in the prothesis had failed testing specifications. This expert did not, however, provide the facts or reasoning upon which his opinion was based, nor did the metallurgist identify which specifications the product had allegedly failed, nor how the expert had reached this conclusion.
The trial court held that the experts evidence had failed to satisfy Californias expert testimony requirements and excluded most of his testimony because it was entirely devoid of any reasoned analysis supporting his conclusion.
On appeal, the California Court of Appeal recognized that under a recent California Supreme Court case, Sargon Enterprises, Inc. v. Univ. of Southern Cal., 55 Cal.4th 747 (Cal. 2012), sections 801 and 802 of the California Code of Evidence had been interpreted to require a showing that an opinion offered by an expert had a reasonable basis, but the Court of Appeal reversed the trial courts decision to exclude the expert testimony, holding that the standards of admissibility of expert testimony enunciated in Sargon did not apply to expert declarations at the summary judgment stage. Rather, the Court of Appeal held, trial courts were required to construe evidence submitted in opposition to a motion for summary judgment liberally.
In our amicus letter, we urged the Supreme Court of California to grant a petition to review the Court of Appeal decision in Garrett, arguing that the Court of Appeals lower admissibility standard for expert testimony offered in opposition to a summary judgment motion was untenable and that California courts should apply the same admissibility standard for expert testimony as is applied at trial under Sargon.
We argued primarily that admissibility of expert opinions is governed by Evidence Code sections 801 and 802. Section 801 explicitly limits admission of expert opinion: If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is .(b) Based on matter whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . (emphasis added). Under section 801(b), a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on and the matter relied on must provide a reasonable basis for the particular opinion offered. Sargon, 55 Cal.4th at 770 (quoting In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563) (emphasis added).
When an expert fails to disclose the bases of his or her opinion, as here, the trial court cannot conclude that the matter relied on provides a reasonable basis for the opinion, as required to admit the evidence. The court also has no discretion to refuse to enforce section 801. That section expressly limit[s] expert evidence, and the Evidence Code expressly requires the court to exclude evidence that does not comply. Evid. Code 803 provides that Upon timely objection the court shall exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. (emphasis added).
We noted that other California intermediate appeals courts disagreed with the Court of Appeal in Garrett and have held that the admissibility standards for expert testimony used in the trial stage of a case should also apply to expert declarations in opposition to a motion for summary judgment and that although declarations submitted in opposition to summary judgment were to be liberally construedand disputed issues of fact were to be resolved against the moving partythis did not apply to the threshold issue of a declarations admissibility. See, e.g., Bozzi v. Nordstom, Inc., 186 Cal.App.4th 755 (Cal. Ct. App. 2010).
Unfortunately, on June 17, 2013, the California Supreme Court declined to grant the petition for review. The case is Garrett v. Howmedica Osteonics Corp., California Supreme Court, No.S2100018.
To view the Foundation’s amicus letter, please click here.