'Gatekeeping' Expands in Two Jurisdictions

While this discussion does not examine whether all state courts are trending toward greater scrutiny of the admissibility of scientific expert opinions, as favored under Daubert, it explores two noteworthy decisions from 2012 by the Supreme Courts of California and Pennsylvania that break away from the narrow Frye test, clearly mandate active gatekeeping responsibility for trial judges, and broaden the scope of inquiries into expert scientific testimony. In Betz v. Pneumo-Abex, et al., 43 A.3d 27 (Pa. 2012), and Sargon Enterprises, Inc. v. University of Southern California, et al., 55 Cal. 4th 747, 139 Cal. Rptr. 3d 614 (2012), Pennsylvania and California set out encompassing rules for admitting experts' scientific based opinions.

Both states are ' or were ' known as “Frye” jurisdictions. Their courts relied extensively on Frye for evaluating opinions based on scientific testimony. Moreover, both supreme courts rejected opportunities before 2012 to declare their states' “Daubert” jurisdictions. See Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1044 (Pa. 2003); People v. Leahy, 8 Cal. 4th 587, 604, 882 P. 2d 321 (1994). Times have changed since.

About Frye

Frye is now a 90-year-old decision, two pages in length, that requires judges to exclude expert opinions based on “new scientific techniques” if such are not “generally accepted in the particular field.” 293 F. at 1114. Thus, the Frye court held that a “systolic blood pressure deception test” (a 1923 lie-detector test) was not “sufficiently established to have gained general acceptance in the particular field in which it belongs,” and therefore barred an expert's opinion based on this test. Ibid.

Today, what is most significant is what the Frye court did not decide. While a judge may evaluate a new scientific technique for general acceptance, Frye is not an authority for a judge to question the logic or reasoning of an expert's deductions or conclusions based on an accepted “scientific technique.” Frye did not consider novel use of accepted scientific principles or the use of established techniques that may have come under new criticism. It did not consider experts' use of non-scientific but complex processes, like medical disease causation, data extrapolation, or statistical analysis. In its narrow interpretation, the Frye rule could not be used to screen complex, sophisticated opinions before presentation to a jury.

It is probably no mere coincidence that these two Frye jurisdictions with heavy, high-stakes litigation dockets and significant damage awards have now decisively accepted the Daubert analysis. In the two years ending Dec. 31, 2012, product liability suit filings in California state courts increased 9.3%, the third highest increase during that period of state and federal court filings. Pennsylvania federal courts increased 5.1%, the tenth largest increase of state and federal court filings in that period, and Pennsylvania state court filings increased 0.3%, which was the ninth largest increase of all state courts. Monitor Suite, Thomson Reuters/Westlaw ' Product Liability (www.monitorsuite.com, Jan. 9, 2013).

The American Tort Reform Foundation has awarded California position #1 in its 2012-2013 “Judicial Hellholes”' survey and put Philadelphia, PA, on its “Watch List.” The Betz decision, however, earned Pennsylvania an award of “Points of Light.” (Since the Sargon opinion was issued at the end of November 2012, it likely came too late for consideration for this accolade.) American Tort Reform Foundation, Judicial Hellholes' 2012/2013.

Until 2012, courts in California and Pennsylvania had applied Frye narrowly, downplaying the courts' screening function. Betz, supra, 44 A.3d at 52-53; Roberti v. Andy's Termite & Pest Control, Inc., 113 Cal. App. 4th 893, 906, 6 Cal. Rptr. 3d 827 (2003). Challenges to expert testimony “deduced from a well-recognized scientific principle or discovery” were “vetted through the Frye litmus, which winnows the field of attacks by application of the threshold requirement of novelty.” Betz, supra, 44 A.3d at 53; Roberti, supra, 113 Cal. App. 4th at 906. The clash of increased and high stakes use of complex scientific principles with the narrowly applied Frye rule led to these two recent state supreme court decisions.

Betz expands Frye In Pennsylvania, the Betz court simply redefined Frye. It broadened the category of “novel” scientific evidence to include critical examination of experts' methodologies and reliability of experts' conclusions rooted in scientific knowledge. Betz, supra, 44 A.3d at 53.

The Betz case was brought on behalf of decedent, Charles Simikian, who died of mesothelioma, a fatal cancer caused by asbestos exposure. Mesothelioma is a “signature” disease of asbestos exposure in that asbestos is the only known cause of the disease, except for therapeutic radiation. The expert for Mr. Simikian's estate rendered a medical causation opinion that “any and all” asbestos fibers Mr. Simikian ever breathed contributed to cause his disease, and hence all exposures from all defendants' products, no matter the extent of the dose, were implicated in liability. The expert reached this opinion by extrapolating from recognized dosages of asbestos causing mesothelioma down to the lowest level of exposure, as low as a single fiber. The trial judge did not agree with the extrapolation methodology because there are no studies with such a finding and, moreover, it flies in the face of the longstanding principle of biology, that “the dose makes the poison,” i.e., it takes a certain amount of a substance before it will cause injury. Id. at 39-40.

The opinion of the first appellate court, Betz v. Pneumo-Abex LLC, et al., 998 A.2d 962, 979 (Pa. Super. 2010), is instructive of the effect of the narrow application of the 90-year-old Frye test in the 21st century.

The Appeal

The appeals court overturned the trial court, saying there was no Frye issue because the expert's extrapolation was not a novel scientific technique. Id. at 981. And even if it were, it was a “generally accepted” method of deduction. “Scientists may extrapolate from a “sound scientific basis” when formulating opinions about the etiology of disease, and that in these circumstances the use of extrapolation is “not novel.” Id. at 976, 981. Moreover, the expert's “conclusions” will not be considered “novel” and therefore are not subject to a Frye analysis of “general acceptability.” The court championed cross-examination for protection from experts' invalid conclusions, which testimony would go to the weight, not the admissibility, of the opinion. Id. at 972.

Further, the appeals court excoriated the idea of a Daubert-type gatekeeping mandate for trial judges, saying, “A Frye hearing is not appropriate “every time science enters the courtroom.” Such would be 'a result that is nothing short of Kafkaesque to contemplate.'” Ibid. Despite federal judges having already tackled scientific questions for 15 years, the Pennsylvania appellate court questioned trial and appellate courts' abilities to evaluate scientific processes saying judges had “no special competence to resolve the complex ' causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease.” Judges are “to be guided by the scientists in assessing the reliability of a scientific method, not the reverse.” Id. at 979.

The PA Supreme Court

The Pennsylvania Supreme Court had little in common with this view of Frye. Instead, it revitalized the Pennsylvania interpretation of the Frye rule to address this century's current scientific evidentiary problems. (While the court also stated that the Pennsylvania Rules of Evidence are authority for screening expert opinion, because the Betz case “was not selected as a vehicle to assess what force” the Rules of Evidence have apart from Frye, the court took up only the “challenges” “being channeled through Frye.” Betz, supra, 44 A. 3d at 53, fn 32.)

Relying on Appellants' briefs, it emphasized “this court's continuing concern with ensuring sufficient reliability of scientific evidence brought into the courtroom.” Betz, supra, 44 A.3d at 44.

How, it asked, will trial judges “meaningfully screen against 'junk science' if they must take claims of reliance on scientific evidence and methods at face value?” Id. at 45. It called the “the gatekeeping” role of the trial judge “essential” to “ensure that what might appear to the jury to be science is not in fact speculation in disguise.” Therefore, the “essence” of the “teaching of Frye” requires that “ properly supported scientific evidence, however complex, can reach the jury for its consideration, while material whose complexity merely hides its unreliability is winnowed out.” The court declared the trial judge's gatekeeping function “is warranted when a trial judge has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions.” Ibid.

CA Finds New Authority; Isolates Frye

While the Pennsylvania Supreme Court expanded Frye's meaning, the California Supreme Court approached the challenges of scientific expert testimony by isolating Frye to its original set of issues and breathing new life into provisions of the California Evidence Code.

Even though the California Supreme Court had rejected Daubert in People v. Leahy, the Sargon decision accepts the Daubert-like analysis for use in California in all but expert testimony based on “new scientific techniques,” which it left to Frye's “general acceptance” analysis. Sargon, supra, 139 Cal. Rptr. 3d at 632.

The Sargon court declared that the “general acceptance test” of Frye regarding “new scientific techniques ' still applies in California despite the United States Supreme Court's rejection in Daubert ' ” and “ (n)othing we say in this case affects our (prior) holding (regarding Frye in ' People v. Leahy).” Sargon, supra, 139 Cal. Rptr. 3d at 632 n.6.

The California court's infusion of a Daubert-like analysis into provisions of the California Evidence Code provided the same muscles exercised in Betz. While there is no mention of Frye in the Sargon trial and lower appellate court decisions, as reported in the Supreme Court's opinion, the Sargon court clearly confronts the Frye limitations by name and develops judicial authority for examination of matters that Frye, in narrow use, does not reach, that is, all uses of scientific, medical and technical principles and the validity of experts' methodologies and conclusions in reliance thereon. Id. at 630-632.

The expert's opinion at issue in Sargon was a certified accountant's projection of lost profit ranging from $220 million to $1.2 billion arising from a breach of contract by a university. The university had failed to complete a five-year clinical trial of a patented, revolutionary dental implant product. Had the lengthy clinical trials been successfully completed as expected, and new generations of dentists trained in the use of this innovative product, the expert projected that within 10 years, claimant Sargon Enterprises, Inc., would become one of the world's six largest dental implant market leaders, which currently controlled 80% of the world dental implant market. Sargon, supra, 139 Cal. Rptr. 3d at 630. Moreover, a study he relied on projected that the market for dental implants would grow 18.5% per year and that only 1% of the market for dental implants was currently dental implant products. Id. at 619.

At the time of the clinical trials, Sargon Enterprises was a three-person operation that had little or no global market share (roughly one-half of 1%), gross revenues of $1.8 million, and no meaningful research and development. Id. at 619-628. After an eight-day hearing on the accountant's data and the reasons and methodologies supporting his lost-profit calculation, the trial judge excluded this opinion as “pure speculation” that “cannot assist the trier of fact” and therefore was irrelevant. Id. at 627. The case went to the jury after exclusion of the expert's testimony and the jury rendered a verdict for $433,000.

Sargon's Appeal

Sargon Enterprises appealed and the court of appeal overturned the verdict. Its reasoning parallels the Frye analysis. The appellate court satisfied itself that the expert's opinions were based on proper data and materials ' “on 'economic and financial data, market surveys and analyses, business records of similar enterprises, and the like.'” Id. at 629. Therefore, the trial court's criticisms of the expert's methodologies in extracting lost profits from the data and materials proffered “were better left for the jury's assessment.” Ibid.

The CA Supreme Court

The California Supreme Court took on the challenge of drawing the line between the right to a jury and the trial judge's duties, deciding the trial judge shall have “a substantial “gatekeeping” responsibility” over expert scientific testimony. Id. at 630. In footnote 5 of the opinion, the court reminded that “gatekeeping” is not a wholly new rule in California, citing its 2007 decision in People v. Prince, 40 Cal. 4th 1179 (2007), where it said expert opinion will be “subject to scrutiny for reliability (emphasis in original).” Ibid. at 1225 n.8. The Sargon court specifically brings Daubert gatekeeping standards into California jurisprudence, citing “(r)ecent United States Supreme Court decisions” that “have referred to the trial judge's “'gatekeeper's role,'” and citing the U.S. Supreme Court's more recent cases interpreting Daubert: General Electric Co. v. Joiner, 522 U.S. 136 (1997) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Id. at 630 n.5.

California judges shall evaluate the “type” of evidence an expert relies on (i.e., the scientific principles) under Evidence Code ' 801(b), and shall also examine the “reasons for the experts' opinions” under Evidence Code ' 802 (emphasis in original). Sargon, supra, 139 Cal. Rptr. 3d at 631. “Thus, under Evidence code '801(b) and '802, the trial court acts as a gatekeeper to exclude expert opinion that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” Id. at 632.

This decision brings clarity where there was confusion. In the Roberti decision, nine years earlier, the California Court of Appeal overturned exclusion of an opinion that a pesticide caused a plaintiff child's autism, because, under California's Frye test (also known as Kelly-Frye because of People v. Kelly, 17 Cal. 3d 24, 549 P.2d 1240 (1976)), “medical theories of causation are not subject to the Kelly-Frye rule when they are based entirely upon generally accepted diagnostic methods and tests.” Roberti, supra, 113 Cal. App. 4th at 904. Moreover that court said, applying a Daubert-type analysis, for which the pesticide company argued, would be “contrary to California law” because Daubert was rejected in People v. Leahy by the Supreme Court. Roberti, supra, 113 Cal. App. 4th at 905.

The Sargon court faulted this analysis, saying that a Daubert-type analysis will be applied in matters not involving “new scientific instrumentalities,” such as sophisticated medical causation issues. Indeed, the Sargon court cited with explicit approval the court of appeal decision in the Lockheed Litigation Cases, 115 Cal. App. 4th 558, 565 (2004), where the court ruled an expert's opinion should be excluded on the issue of the medical causation of solvents, where the study relied upon did not support the expert's specific causation opinion. Sargon, supra, 139 Cal. Rptr. 3d at 630.

Limits on Gatekeepers

The Sargon court set out limits on gatekeepers saying “courts must be cautious in excluding expert testimony” and “the gatekeeping role does not involve choosing between competing expert opinions.” “The gatekeeper's focus 'must be solely on principles and methodology, not on the conclusions they generate,” quoting Daubert. A court may examine the reliability of a conclusion, but the “trial court's task is not to choose the most reliable of the offered opinion and exclude the others.'” Id. at 632.

Conclusion

Although the Supreme Courts of Pennsylvania and California took different paths to the same result, they both enlarged the gatekeeping roles of the trial courts. The litigation demands on these states' courts are measured and recognized as among the highest. These opinions come as timely assistance to its law practitioners. Pennsylvania expanded the Frye test to include examination of reasoning and reliability of conclusions of experts. California relegated Frye to its original niche of jurisprudence (new scientific techniques) and gave its gatekeepers revitalized tools (in Evidence Code ' 801 and ' 802) to govern all other expert scientific testimony. Both states' courts can now anticipate getting new cases that push at the boundaries of the role of the gatekeeper versus the right to a jury trial.

'

Christopher Wood is a litigation partner in the San Francisco (Financial District) office of McKenna Long & Aldridge LLP. He can be contacted at [email protected]%20or 415-267-4140.

Twenty years ago, federal courts came under new rules for admissibility of expert scientific testimony from the U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993). The decision made clear that the 70-year-old test of admissibility of experts' opinions relying on “new scientific techniques,” as set forth in Frye v. United States , 293 F. 1013 (1923), no longer controlled in federal courts. Instead, the Daubert court instructed judges to conduct wide-ranging analyses of not just new scientific techniques, but any testimony of scientific, medical and technical knowledge proffered to assist the jury. Judges were to examine not only the scientific principles relied on, but also the validity of the experts' reasoning and derived opinions. Faced with a proffer of expert scientific testimony, judges are to be gatekeepers at the outset of trial to ensure reliable scientific knowledge will be applied. Daubert, 509 U.S. at 592-593.

A Hodgepodge of Results

Over the following 20 years, not every state accepted the Daubert analysis, thereby creating a hodgepodge of state-by-state results for product manufacturers and distributors. By 2010, 35 states had adopted Daubert or a similar test urging Daubert factors as “helpful” or “instructive”; 13 states and the District of Columbia continued to apply Frye; one state was a hybrid; and two states followed neither. James Hunt, Admissibility of Expert Testimony in State Courts, Aircraft Builder Council, Inc. Law Report, Fall 2010, www.aircraftbuilders.com.

While this discussion does not examine whether all state courts are trending toward greater scrutiny of the admissibility of scientific expert opinions, as favored under Daubert, it explores two noteworthy decisions from 2012 by the Supreme Courts of California and Pennsylvania that break away from the narrow Frye test, clearly mandate active gatekeeping responsibility for trial judges, and broaden the scope of inquiries into expert scientific testimony. In Betz v. Pneumo-Abex, et al., 43 A.3d 27 (Pa. 2012), and Sargon Enterprises, Inc. v. University of Southern California, et al., 55 Cal. 4th 747, 139 Cal. Rptr. 3d 614 (2012), Pennsylvania and California set out encompassing rules for admitting experts' scientific based opinions.

Both states are ' or were ' known as “Frye” jurisdictions. Their courts relied extensively on Frye for evaluating opinions based on scientific testimony. Moreover, both supreme courts rejected opportunities before 2012 to declare their states' “Daubert” jurisdictions. See Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1044 (Pa. 2003); People v. Leahy , 8 Cal. 4th 587, 604, 882 P. 2d 321 (1994). Times have changed since.

About Frye

Frye is now a 90-year-old decision, two pages in length, that requires judges to exclude expert opinions based on “new scientific techniques” if such are not “generally accepted in the particular field.” 293 F. at 1114. Thus, the Frye court held that a “systolic blood pressure deception test” (a 1923 lie-detector test) was not “sufficiently established to have gained general acceptance in the particular field in which it belongs,” and therefore barred an expert's opinion based on this test. Ibid.

Today, what is most significant is what the Frye court did not decide. While a judge may evaluate a new scientific technique for general acceptance, Frye is not an authority for a judge to question the logic or reasoning of an expert's deductions or conclusions based on an accepted “scientific technique.” Frye did not consider novel use of accepted scientific principles or the use of established techniques that may have come under new criticism. It did not consider experts' use of non-scientific but complex processes, like medical disease causation, data extrapolation, or statistical analysis. In its narrow interpretation, the Frye rule could not be used to screen complex, sophisticated opinions before presentation to a jury.

It is probably no mere coincidence that these two Frye jurisdictions with heavy, high-stakes litigation dockets and significant damage awards have now decisively accepted the Daubert analysis. In the two years ending Dec. 31, 2012, product liability suit filings in California state courts increased 9.3%, the third highest increase during that period of state and federal court filings. Pennsylvania federal courts increased 5.1%, the tenth largest increase of state and federal court filings in that period, and Pennsylvania state court filings increased 0.3%, which was the ninth largest increase of all state courts. Monitor Suite, Thomson Reuters/Westlaw ' Product Liability (www.monitorsuite.com, Jan. 9, 2013).

The American Tort Reform Foundation has awarded California position #1 in its 2012-2013 “Judicial Hellholes”' survey and put Philadelphia, PA, on its “Watch List.” The Betz decision, however, earned Pennsylvania an award of “Points of Light.” (Since the Sargon opinion was issued at the end of November 2012, it likely came too late for consideration for this accolade.) American Tort Reform Foundation, Judicial Hellholes' 2012/2013.

Until 2012, courts in California and Pennsylvania had applied Frye narrowly, downplaying the courts' screening function. Betz, supra, 44 A.3d at 52-53; Roberti v. Andy's Termite & Pest Control, Inc. , 113 Cal. App. 4th 893, 906, 6 Cal. Rptr. 3d 827 (2003). Challenges to expert testimony “deduced from a well-recognized scientific principle or discovery” were “vetted through the Frye litmus, which winnows the field of attacks by application of the threshold requirement of novelty.” Betz, supra, 44 A.3d at 53; Roberti, supra, 113 Cal. App. 4th at 906. The clash of increased and high stakes use of complex scientific principles with the narrowly applied Frye rule led to these two recent state supreme court decisions.

Betz expands Frye In Pennsylvania, the Betz court simply redefined Frye. It broadened the category of “novel” scientific evidence to include critical examination of experts' methodologies and reliability of experts' conclusions rooted in scientific knowledge. Betz, supra, 44 A.3d at 53.

The Betz case was brought on behalf of decedent, Charles Simikian, who died of mesothelioma, a fatal cancer caused by asbestos exposure. Mesothelioma is a “signature” disease of asbestos exposure in that asbestos is the only known cause of the disease, except for therapeutic radiation. The expert for Mr. Simikian's estate rendered a medical causation opinion that “any and all” asbestos fibers Mr. Simikian ever breathed contributed to cause his disease, and hence all exposures from all defendants' products, no matter the extent of the dose, were implicated in liability. The expert reached this opinion by extrapolating from recognized dosages of asbestos causing mesothelioma down to the lowest level of exposure, as low as a single fiber. The trial judge did not agree with the extrapolation methodology because there are no studies with such a finding and, moreover, it flies in the face of the longstanding principle of biology, that “the dose makes the poison,” i.e., it takes a certain amount of a substance before it will cause injury. Id. at 39-40.

The opinion of the first appellate court, Betz v. Pneumo-Abex LLC, et al., 998 A.2d 962, 979 (Pa. Super. 2010), is instructive of the effect of the narrow application of the 90-year-old Frye test in the 21st century.

The Appeal

The appeals court overturned the trial court, saying there was no Frye issue because the expert's extrapolation was not a novel scientific technique. Id. at 981. And even if it were, it was a “generally accepted” method of deduction. “Scientists may extrapolate from a “sound scientific basis” when formulating opinions about the etiology of disease, and that in these circumstances the use of extrapolation is “not novel.” Id. at 976, 981. Moreover, the expert's “conclusions” will not be considered “novel” and therefore are not subject to a Frye analysis of “general acceptability.” The court championed cross-examination for protection from experts' invalid conclusions, which testimony would go to the weight, not the admissibility, of the opinion. Id. at 972.

Further, the appeals court excoriated the idea of a Daubert-type gatekeeping mandate for trial judges, saying, “A Frye hearing is not appropriate “every time science enters the courtroom.” Such would be 'a result that is nothing short of Kafkaesque to contemplate.'” Ibid. Despite federal judges having already tackled scientific questions for 15 years, the Pennsylvania appellate court questioned trial and appellate courts' abilities to evaluate scientific processes saying judges had “no special competence to resolve the complex ' causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease.” Judges are “to be guided by the scientists in assessing the reliability of a scientific method, not the reverse.” Id. at 979.

The PA Supreme Court

The Pennsylvania Supreme Court had little in common with this view of Frye. Instead, it revitalized the Pennsylvania interpretation of the Frye rule to address this century's current scientific evidentiary problems. (While the court also stated that the Pennsylvania Rules of Evidence are authority for screening expert opinion, because the Betz case “was not selected as a vehicle to assess what force” the Rules of Evidence have apart from Frye, the court took up only the “challenges” “being channeled through Frye.” Betz, supra, 44 A. 3d at 53, fn 32.)

Relying on Appellants' briefs, it emphasized “this court's continuing concern with ensuring sufficient reliability of scientific evidence brought into the courtroom.” Betz, supra, 44 A.3d at 44.

How, it asked, will trial judges “meaningfully screen against 'junk science' if they must take claims of reliance on scientific evidence and methods at face value?” Id. at 45. It called the “the gatekeeping” role of the trial judge “essential” to “ensure that what might appear to the jury to be science is not in fact speculation in disguise.” Therefore, the “essence” of the “teaching of Frye” requires that “ properly supported scientific evidence, however complex, can reach the jury for its consideration, while material whose complexity merely hides its unreliability is winnowed out.” The court declared the trial judge's gatekeeping function “is warranted when a trial judge has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions.” Ibid.

CA Finds New Authority; Isolates Frye

While the Pennsylvania Supreme Court expanded Frye's meaning, the California Supreme Court approached the challenges of scientific expert testimony by isolating Frye to its original set of issues and breathing new life into provisions of the California Evidence Code.

Even though the California Supreme Court had rejected Daubert in People v. Leahy, the Sargon decision accepts the Daubert-like analysis for use in California in all but expert testimony based on “new scientific techniques,” which it left to Frye's “general acceptance” analysis. Sargon, supra, 139 Cal. Rptr. 3d at 632.

The Sargon court declared that the “general acceptance test” of Frye regarding “new scientific techniques ' still applies in California despite the United States Supreme Court's rejection in Daubert ' ” and “ (n)othing we say in this case affects our (prior) holding (regarding Frye in ' People v. Leahy).” Sargon, supra, 139 Cal. Rptr. 3d at 632 n.6.

The California court's infusion of a Daubert-like analysis into provisions of the California Evidence Code provided the same muscles exercised in Betz. While there is no mention of Frye in the Sargon trial and lower appellate court decisions, as reported in the Supreme Court's opinion, the Sargon court clearly confronts the Frye limitations by name and develops judicial authority for examination of matters that Frye, in narrow use, does not reach, that is, all uses of scientific, medical and technical principles and the validity of experts' methodologies and conclusions in reliance thereon. Id. at 630-632.

The expert's opinion at issue in Sargon was a certified accountant's projection of lost profit ranging from $220 million to $1.2 billion arising from a breach of contract by a university. The university had failed to complete a five-year clinical trial of a patented, revolutionary dental implant product. Had the lengthy clinical trials been successfully completed as expected, and new generations of dentists trained in the use of this innovative product, the expert projected that within 10 years, claimant Sargon Enterprises, Inc., would become one of the world's six largest dental implant market leaders, which currently controlled 80% of the world dental implant market. Sargon, supra, 139 Cal. Rptr. 3d at 630. Moreover, a study he relied on projected that the market for dental implants would grow 18.5% per year and that only 1% of the market for dental implants was currently dental implant products. Id. at 619.

At the time of the clinical trials, Sargon Enterprises was a three-person operation that had little or no global market share (roughly one-half of 1%), gross revenues of $1.8 million, and no meaningful research and development. Id. at 619-628. After an eight-day hearing on the accountant's data and the reasons and methodologies supporting his lost-profit calculation, the trial judge excluded this opinion as “pure speculation” that “cannot assist the trier of fact” and therefore was irrelevant. Id. at 627. The case went to the jury after exclusion of the expert's testimony and the jury rendered a verdict for $433,000.

Sargon's Appeal

Sargon Enterprises appealed and the court of appeal overturned the verdict. Its reasoning parallels the Frye analysis. The appellate court satisfied itself that the expert's opinions were based on proper data and materials ' “on 'economic and financial data, market surveys and analyses, business records of similar enterprises, and the like.'” Id. at 629. Therefore, the trial court's criticisms of the expert's methodologies in extracting lost profits from the data and materials proffered “were better left for the jury's assessment.” Ibid.

The CA Supreme Court

The California Supreme Court took on the challenge of drawing the line between the right to a jury and the trial judge's duties, deciding the trial judge shall have “a substantial “gatekeeping” responsibility” over expert scientific testimony. Id. at 630. In footnote 5 of the opinion, the court reminded that “gatekeeping” is not a wholly new rule in California, citing its 2007 decision in People v. Prince , 40 Cal. 4th 1179 (2007), where it said expert opinion will be “subject to scrutiny for reliability (emphasis in original).” Ibid . at 1225 n.8. The Sargon court specifically brings Daubert gatekeeping standards into California jurisprudence, citing “(r)ecent United States Supreme Court decisions” that “have referred to the trial judge's “'gatekeeper's role,'” and citing the U.S. Supreme Court's more recent cases interpreting Daubert : General Electric Co. v. Joiner , 522 U.S. 136 (1997) and Kumho Tire Co. v. Carmichael , 526 U.S. 137 (1999). Id. at 630 n.5.

California judges shall evaluate the “type” of evidence an expert relies on (i.e., the scientific principles) under Evidence Code ' 801(b), and shall also examine the “reasons for the experts' opinions” under Evidence Code ' 802 (emphasis in original). Sargon, supra, 139 Cal. Rptr. 3d at 631. “Thus, under Evidence code '801(b) and '802, the trial court acts as a gatekeeper to exclude expert opinion that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” Id. at 632.

This decision brings clarity where there was confusion. In the Roberti decision, nine years earlier, the California Court of Appeal overturned exclusion of an opinion that a pesticide caused a plaintiff child's autism, because, under California's Frye test (also known as Kelly-Frye because of People v. Kelly , 17 Cal. 3d 24, 549 P.2d 1240 (1976)), “medical theories of causation are not subject to the Kelly-Frye rule when they are based entirely upon generally accepted diagnostic methods and tests.” Roberti, supra , 113 Cal. App. 4th at 904. Moreover that court said, applying a Daubert-type analysis, for which the pesticide company argued, would be “contrary to California law” because Daubert was rejected in People v. Leahy by the Supreme Court. Roberti, supra, 113 Cal. App. 4th at 905.

The Sargon court faulted this analysis, saying that a Daubert-type analysis will be applied in matters not involving “new scientific instrumentalities,” such as sophisticated medical causation issues. Indeed, the Sargon court cited with explicit approval the court of appeal decision in the Lockheed Litigation Cases, 115 Cal. App. 4th 558, 565 (2004), where the court ruled an expert's opinion should be excluded on the issue of the medical causation of solvents, where the study relied upon did not support the expert's specific causation opinion. Sargon, supra, 139 Cal. Rptr. 3d at 630.

Limits on Gatekeepers

The Sargon court set out limits on gatekeepers saying “courts must be cautious in excluding expert testimony” and “the gatekeeping role does not involve choosing between competing expert opinions.” “The gatekeeper's focus 'must be solely on principles and methodology, not on the conclusions they generate,” quoting Daubert. A court may examine the reliability of a conclusion, but the “trial court's task is not to choose the most reliable of the offered opinion and exclude the others.'” Id. at 632.

Conclusion

Although the Supreme Courts of Pennsylvania and California took different paths to the same result, they both enlarged the gatekeeping roles of the trial courts. The litigation demands on these states' courts are measured and recognized as among the highest. These opinions come as timely assistance to its law practitioners. Pennsylvania expanded the Frye test to include examination of reasoning and reliability of conclusions of experts. California relegated Frye to its original niche of jurisprudence (new scientific techniques) and gave its gatekeepers revitalized tools (in Evidence Code ' 801 and ' 802) to govern all other expert scientific testimony. Both states' courts can now anticipate getting new cases that push at the boundaries of the role of the gatekeeper versus the right to a jury trial.

'

Christopher Wood is a litigation partner in the San Francisco (Financial District) office of McKenna Long & Aldridge LLP. He can be contacted at [email protected]%20or 415-267-4140.