July 01, 2013
Last week the California Medical Association (CMA), California Dental Association and California Hospital Association filed an amicus letter with the California Supreme Court urging it to grant review in Liu v. Superior Court.
CMA believes review is necessary in light of a recent decision by the state's high court that allows trial court judges to exclude speculative expert testimony at trial (Sargon Enterprises, Inc. v. University of Southern California). Granting review of the Liu decision would allow the Supreme Court to explain how trial courts are to comply with Sargon in the context of motions for summary judgment, an important pre-trial motion that is often an effective and efficient means to resolve or limit the issues that go to trial.
In Lui, a wrongful death case, the plaintiffs’ physician expert witness did not offer a reasoned explanation of his opinion on causation, a key element of all personal injury cases, including medical professional negligence cases. The Court of Appeal majority acknowledged that the plaintiffs’ physician expert witness did not provide a reasoned explanation for his opinion on causation. Nevertheless, the appellate court overturned the lower court ruling that had granted summary judgment for the defendant, reasoning that the plaintiffs’ expert witness should not be required to provide a detailed explanation on causation at the summary judgment stage but could possibly be required to do so on cross-examination at trial.
CMA’s amicus letter points out the many implications that the appellate court’s decision in Liu could have for expert witness opinion testimony offered by physicians and other health care providers in the form of declarations on motions for summary judgment, particularly in cases where expert witness opinion testimony is offered to prove medical causation.
CMA’s letter also points out that granting review in Liu will provide the Supreme Court with the opportunity to provide much needed guidance to California expert witnesses, trial lawyers, judges and appellate justices on how to comply with the high court’s recent Sargon decision. In Sargon, the court established that at trial it is the court's responsibility to act as a ""gatekeeper"" of expert witness opinion testimony and to exclude speculative or conclusory expert testimony. According to Sargon, it is not enough that the expert witness simply states an opinion, but he or she must also provide a reasoned basis for the opinion. The same or similar gatekeeping function should apply to pre-trial summary judgment proceedings.