Atlantic Legal Foundation filed a friend of the court brief, joined by the International Association of Defense Counsel, in Marion Liu, etc., et al., v. Superior Court (Janssen Research & Development, LLC, et al.), Case No S211042 in the California Supreme Court. This is an important case on the admissibility of expert testimony evidence when determining whether to grant summary judgment if the testimony would not be admissible at trial. We argued for statutory and policy reasons that the California Supreme Court should grant the petition for review to hear the case and allow courts to exclude such evidence when granting a summary judgment.
The action in the case arises from a hospital-based clinical study of a long acting version of Risperidone, an approved and long-used antipsychotic drug. Augustine Liu (Liu) was admitted into the study by his psychiatrist. Liu suffered from an undiagnosed heart condition characterized by an enlarged and malfunctioning heart. Lius lab studies showed elevated liver enzymes shortly after being admitted to the study. Liu was transferred to an emergency care facility six hours after the confirmation of the lab results. He died approximately eleven hours after being admitted to the emergency care hospital.
Plaintiffs alleged that defendants were negligent by failing to transfer Liu to an emergency room following the initial lab results, and the delay diminished his chance of survival. Several defendants moved for summary judgment based on expert testimony that the care provided did not contribute to his death because there was no available treatment for his heart disease and his overall health condition precluded a heart transplant. Plaintiffs responded with a declaration from Dr. Jay Schapira stating that Lius earlier transfer would have given him a greater than 50% chance of survival, but his expert testimony lacked explanation or substantiation. The trial court excluded the evidence as conclusory and granted summary judgment because Dr. Schapiras declaration did not contain a reasoned opinion on why any actions of defendants caused decedents death.
The Court of Appeal reversed 2-1, holding it an error to exclude Dr. Schapiras expert declaration. The majority said that the lack of reasoned explanation could be a basis for cross-examination. The dissenting justice opined that Dr. Schapiras opinion was merely speculative because it provided no explanation for how Liu could have been treated.
The question before the California Supreme Court is whether to grant the petition to hear the case so as to determine whether speculative expert witness testimony is admissible to rebut a motion for summary judgment. In our amicus letter on behalf of defendants, we advanced six reasons why the Court should review and reverse the decision.
First, we stressed that the governing statutes provide no basis for allowing speculative expert testimony. The summary judgment statute states clearly that both supporting and opposing declarations shall set forth admissible evidence, and provides no statutory basis for singling out expert declarations opposing summary judgment for lower admissibility standards. The California Evidence Code expressly requires a court to exclude such evidence.
Second, denying summary judgment based on evidence not admissible at trial frustrates the purpose of summary judgment. Expert evidence should not be admissible on summary judgment unless it would be admissible at trial because a reasonable trier of fact could not find for a party that does not offer admissible evidence.
Third, lowering the admissibility requirements for expert testimony submitted in opposition to a summary judgment motion serves no sound policy. A rule that a plaintiff opposing summary judgment need only show that evidence may exist, not that it does exist, does not provide a reasonable basis to believe the experts opinion will ever be admissible at trial, and there is no reason to lower the bar on summary judgment.
Fourth, lowering admissibility requirements for expert testimony allows for abuse that harms defendants and the court system. By paying an expert to make a vague unsubstantiated declaration, a plaintiff could avert summary judgment, creating pressure on defendants to settle to avoid the cost and risk of trial, even if the case lacks merit. Additionally, cases that go to trial further burden Californias overburdened trial courts.
Fifth, experience in federal courts, which apply Daubert, demonstrates that the normal standards of admissibility can safely be applied to expert evidence submitted in opposition to summary judgment. In fact, the Daubert criteria were first announced in the setting of an expert opinion opposing summary judgment, and they fully apply to such opinions.
Finally, there is a conflict among different California Court of Appeals decisions. This Court of Appeal opinion adds to the conflict on a recurrent issue that greatly affects a large number of cases, and the California Supreme Court should resolve the conflict.
We urged the California Supreme Court to review and reverse the decision.
To see our amicus letter, click here.