The California Supreme Court last week dismissed review of an important case about expert testimony that had been before the Court for almost two years - the latest of the Lockheed Litigation Cases, Aguilar v. Exxon Mobil Corp. (Case No. S132167).
The Court of Appeal had affirmed excluding the opinion of a plaintiffs' expert witness about toxicity that was based on studies the trial court found to be an inadequate basis for the opinion. The expert in Aguilar relied on studies that "involved exposure to multiple solvents, including solvents that are not at issue . . . the multiple-solvent epidemiological studies that [the expert] relied on provided no reasonable basis for an opinion that any one of the solvents here at issue can cause disease." (In re Lockheed Litigation Cases (2005) 23 Cal.Rptr.3d 762, 765 [formerly published at 126 Cal.App.4th 271].) Thus, though not as far as say Daubert, the prior decision recognized the right of California courts to act as sort of gatekeepers with respect to expert evidence.
The Supreme Court's own summary of the case states: "This case presents the following issue: Does [the] Evidence Code [ ] permit a trial court to review the evidence an expert relied upon in reaching his or her conclusions in order to determine whether that evidence provides a reasonable basis for the expert's opinion?"
Many observers had predicted that the Court's decision would establish a strong precedent on one side or the other of the debate over whether trial courts can use their own judgment to determine whether an expert's conclusions stray too far from the bases for those opinions, or instead should let such evidence go to the jury and be tested in "the crucible of cross-examination." The decision was therefore highly anticipated. The fact that review was dismissed is, while not as good for the cause of keeping "junk" or just bad science out of the courtroom as if the Court had affirmed the decision, far superior to a contrary or even a muddled result.
Interestingly, the Supreme Court dismissed review "in light of circumstances, arising since review was granted, that require a majority of the permanent members of the court to recuse themselves."
The prior Court of Appeal opinion remains uncitable absent further action by the Supreme Court. The winning defendants and others are expected to seek publication. Although the prior Court of Appeal decision was favorable on this point and some others, it also rejected the trial court's holding that epidemiological studies showing a relative risk of 2.0 or less were inadmissible. Another, citable Lockheed Litigation Case held that where "the study subjects were exposed to many other chemicals, including known carcinogens," the study did not support the expert's opinion that "persons exposed to only the five chemicals supplied by [defendants]" were at greater risk. (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564-565.) "[A]n expert opinion must be based on matter that provides a reasonable basis for the opinion" or, as here, it should be excluded. (115 Cal.App.4th at 561.)
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