Sargon Enterprises V. U.S.C. - A Different Perspective
California Litigation (Forthcoming)
8 Pages Posted: 23 Apr 2014 Last revised: 12 Jul 2014
Date Written: April 21, 2014
Sargon Enterprises v. U.S.C., 55 Cal.4th 747 (2012) is easily the most important expert testimony case rendered by the California Supreme Court in years. The commentary on the case is growing rapidly. To date, most of the commentaries have either generalized that Sargon commits California to the Daubert camp or that Sargon leaves a good deal of uncertainty in its wake. This article addresses both generalizations.
The article contends that procedurally, Sargon does not go as far as Daubert. In Daubert, Justice Blackmun explicitly stated that in applying the new empirical validation test, the trial judge should follow the procedures prescribed by Federal Rule of Evidence 104(a). That statement is significant because under Rule 104(a), the trial judge acts as a factfinder and can consider the credibility of the proffered foundational testimony. In contrast, Sargon does not even mention California Evidence Code section 405, the California analogue to Rule 104(a). Moreover, Justice Chin’s opinion relies heavily on a law review article that proposed empowering California trial judges to conduct a circumscribed, sufficiency inquiry, determining only whether, as a matter of logic, the empirical data and reasoning cited support the hypothesis that the expert’s general theory or technique is valid. The California Supreme Court may eventually grant state trial judges the power to assess the credibility of the proponent’s foundational testimony, but the court has not done so yet.
The article also argues that the Sargon court’s approving treatment of two other United States Supreme Court decisions, Kumho and Joiner, lends clarity to the substantive scope of the holding in Sargon. In Kumho, the U.S. Supreme Court announced that its reliability test applies across the board to all types of expert testimony, not only purportedly scientific testimony. In his opinion in Sargon, Justice Chin did not differentiate among the various species of expertise. The parallel between Sargon and Joiner is even more striking. In Joiner, the plaintiffs’ experts extrapolated an opinion about human causation from animal studies. The trial judge excluded the opinion for the stated reason that there were several marked dissimilarities between the facts in the pending case and the circumstances obtaining in the animal studies. The Supreme Court upheld the trial judge ruling and emphasized that the trial judge has the power to assess the aptness of the analogy between the data the expert relies on and the facts of the pending case. Likewise, in Sargon, the trial judge excluded the plaintiff’s lost profits opinion because, in the judge’s mind, there were significant differences between Sargon and the “Big Six” dental implant companies the expert analogized to. Thus, under Sargon as under Joiner, the trial judge has discretion to critically evaluate the expert’s analogical reasoning connecting the facts of the pending case to the empirical data cited as the basis for the expert’s opinion.
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