Experts

The trial court did not abuse its discretion in overruling objections to questions defense attorney asked plaintiff's future medical damages expert about whether plaintiff's future medical expenses would be covered by Medicare once plaintiff reached 65 and whether Medicare insurers paid full billed medical rates.  Under Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, plaintiff can only… Read More

There are only two elements to a misappropriation of trade secrets claim:  the existence of a trade secret, and its unauthorized dissemination, disclosure or use.  It is not necessary for the plaintiff to prove it was damaged or the defendant was unjustly enriched.  Those issues are relevant only to an award of damages or restitution.  Even absent damages or enrichment,… Read More

The trial court erred in granting defendant's in limine motions to exclude plaintiff's expert's testimony that his employment-related exposure to diesel fuel fumes and particulate matter was a substantial factor in causing his non-Hodgkins lymphoma.  To testify regarding causation, the experts did not have to rely on published epidemiological studies liking diesel fuel exposure to lymphoma.  There are many reasons… Read More

The trial court erred in excluding plaintiff's expert witness from testifying about the causal connection between the mold in her apartment and her physical ailments.  The trial court exercises an important gatekeeping role in ensuring that an expert's opinion is based on reliable evidence and sound reasoning.  However,  the factual basis of an expert opinion goes to the credibility of… Read More

The trial court properly granted summary judgment against the plaintiff insureds who sought coverage under their named peril property insurance policy for loss of their frozen embryos due to a failure of the refrigeration unit of the embryo storage company.  The insureds could not prove that the embryos had suffered physical damage.  The storage company refused to say, and the… Read More

An electrician working on a lengthy project at a farm caught a disease caused by a fungus that spreads from bird feces particularly if the feces are mixed with soil over an extended period.  Following Sarti v. Salt Creek, Ltd. (2008) 167 Cal.App.4th 1187 and distinguishing Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, this decision holds that… Read More

The trial court did not abuse its discretion in excluding plaintiff's expert witness' opinion regarding the accused diabetes drug's causing an increased risk of heart failure in diabetics.  The expert relied on only one test, the authors of which noted that its results as to heart failure were anomalous and required comparison with other tests.  The expert also did not… Read More

A trial court must consider a party's ability to pay before ordering that party to pay all or a portion of the fees of an expert appointed by the court under Evid. Code 730 or Fam. Code 3111 or 3112. Read More

A medical expert testifying about causation in support of the party bearing the burden of proof in a medical malpractice case must be able to express an opinion “to a reasonable medical probability,” which means more likely than not.  If the defendant tries to prove that something other than its alleged negligence caused plaintiff's injury, it bears the burden of… Read More

The district court abused its discretion in excluding the testimony of plaintiff's fire investigator expert witness.  Defendant conceded that the expert was qualified and used generally accepted methodology.  The district court improperly found there was too big a gap between the facts on which the expert based his opinion and the conclusions he drew from those facts.  The district court… Read More

This decision holds that under Evid. Code 721(b)(3), an expert may be cross-examined by a scientific or professional publication if the publication is established as a reliable authority by the cross-examined expert, another expert or judicial notice.  Such a publication may be used even if the testifying expert did not consult it in preparing his opinion.  Here, the testifying expert… Read More

The trial court did not abuse its discretion in denying plaintiff's motion to compel Yelp to produce the source code for its software that filters unreliable reviews from its website.  The battling experts disagreed as to the usefulness of the source code in proving whether Yelp's reviews were "trustworthy" as advertised.  Yelp demonstrated that production of the source code would… Read More

Explaining the California Supreme Court's relatively recent decisions dealing with the admissibility of expert testimony based on hearsay sources, this opinion explains that expert opinion is properly admissible if based on hearsay about background facts or principles of science and the like.  (See People v. Sanchez (2016) 63 Cal.4th 665; People v. Veamatahau (2020) 9 Cal.5th 16; People v. Valencia… Read More

Following Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 and Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266,  this decision holds that a plaintiff who has medical insurance but chooses to use out-of-plan doctors for his care is treated for damage purposes as if he were uninsured and may submit the doctors' bills as evidence… Read More

Although the trial court did not abuse its discretion in excluding from evidence the digitized spreadsheets of meal break and rounding of work hours for lack of a proper foundation, it did abuse its discretion in excluding an expert witness' opinion based on those digitized spreadsheets.  An expert may rely on inadmissible evidence if based on information that is reliable… Read More

The D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 doctrine about summary judgment affidavits not being allowed to contradict admissions in discovery is not a doctrine regarding the admissibility of evidence, but rather whether the contradictory evidence can be given an weight.  Here, an expert changed his answer on the key question of whether a plaintiff was exposed… Read More

The trial court properly admitted HP's expert's lost profits opinion.  Unlike the plaintiff in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, HP was an established business.  The expert had based his opinion on HP's past performance data and considered multiple variables including new product offerings by competing manufacturers.  The expert's projection of lost profits five… Read More

As the last element of a design immunity defense under Gov. Code 830.6, the government entity must establish the reasonableness of its design.  But to do so, it bears only a slight burden of proving that there was substantial evidence to support the reasonableness of the design.  So long as the government entity produces some substantial evidence of reasonableness, such… Read More

Student accused of sexual assault was denied basic due process by university disciplinary board by withholding evidence of antidepressant drugs being taken by the victim until the last minute and barring accused student’s attorney from participating in the proceedings while allowing university’s own counsel to act in a prosecutorial role. Read More

The trial court did not err in excluding a non-retained expert’s opinion on causation as it duplicated a retained expert’s more soundly based opinion. Read More