graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Admissibility not included “In a light most favorable to the opposing party”

This action arises from a hospital-based clinical study of a long- acting version of Risperidone, an approved and long-used antipsychotic drug. Augustine Liu II (“Liu”), a chronic substance abuser who was diagnosed as schizophrenic, was admitted into the study by his treating psychiatrist, Dr. Madeline Valencerina. Liu was suffering from an undiagnosed heart condition, end-stage dilated cardiomyopathy, characterized by an enlarged and malfunctioning heart. Soon after being admitted to the study, Liu’s lab studies began to show elevated liver enzymes. These elevated enzyme readings were confirmed approximately 24 hours later, and Liu was transferred from the study hospital to an emergency care facility approximately six hours after the confirming lab results were received. Liu died approximately 11 hours after he was admitted to the emergency care hospital.

To defeat summary judgment against their negligence suit, plaintiffs attempted to introduce the conclusory opinion of Dr. Shapira. The trial court excluded the opinion and granted summary judgement. This exclusion was held to be in error by the court of appeal, despite it being highly speculative and lacking suggestions of which “precise treatments [should have been available].”

Issue Areas:

Sound Science

Read the Amicus Brief:
Question(s) Presented:

Do the normal admissibility limits on expert testimony apply to expert declarations opposing summary judgment?

ALF’s Amicus Brief:

In a letter to the Chief Justice and Associate Justices of the California Supreme Court ALF first argues that the Court of Appeal contradicted the fundamental intent of Sargon Enters., Inc. v. USC (2012) 55 Ca1.4th 747 that speculative expert witness opinion testimony is not admissible. Under Sargon, the central question is whether the expert witness is speculating and, therefore, whether the testimony is conclusory. To do this, the trial court must be satisfied that an expert witness provides a reasoned explanation for his opinion. Instead, the Court of Appeal majority holds that an expert witness declaration in opposition to summary judgment need not include a reasoned explanation for the opinion. This Court should grant review to instruct the lower courts that the fundamental Sargon inquiry applies at the summary judgment stage as well as at trial.

Second, the Court of Appeal virtually renders nugatory the availability of summary judgment in cases in which the party opposing summary judgment can obtain an expert opinion that supports the party’s litigation position, even if the expert declaration is devoid of facts and reasoning, but is merely ipse dixit. We suggest this is not a sensible or practical rule. ALF asks the California Supreme Court to protect parties from frivolous lawsuits based purely on speculation by requiring plaintiffs to produce admissible evidence to defeat a motion for summary judgement.


Ask Larry for guidance on finding disposition for case. Dockets seem incomplete regardless of where it was filed.

Date Originally Posted: July 2, 2012

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