I remind myself that only a fraction of readers will be familiar with that cultural chestnut, Sanford and Son. You might ask: what’s worse, 70s era sitcoms built upon dismal racial stereotypes, or our present preoccupation with reality television showing us, in ever higher definition, how awful we really are? I digress, however; that’s a topic for a different blog.

Instead, let’s discuss “junk science.” In the majority of cases tried before a jury, the parties will desire to present the testimony of an expert in some field, such as injury or disease causation, standard of care or mental capacity. Of course, the opposition will want, if possible, to preclude this evidence. Popular techniques to preclude the evidence involve arguing either (1) that the expert is not really an expert at all; and/or (2) his opinion is not scientific–and thus likely to mislead the jury.

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held for the first time that, to be admissible, scientific evidence must be both scientifically valid and properly applicable to the facts at issue in the case.  The key here is scientific validity. To put this in historical context, the prevailing standard before Daubert derived from Frye v. United States. Under the Frye standard, expert opinion based on a scientific technique was only admissible where the technique was generally accepted as reliable in the relevant scientific community. This was also termed the “general acceptance” standard.

In theory, the Daubert Court was interested in weeding out “junk science,” though it used the term “absurd and irrational pseudoscientific assertions.” Later, in Kumho Tire Co. v. Carmichael, which extended the Daubert holding, Justice Scalia, in his concurring opinion, wrote that that a trial judge has “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Don’t call me fausse.

What is this “junk”? Justice Stevens gave one illustration, in General Electric Co. v. Joiner. He said:

“An example of ‘junk science’ that should be excluded under Daubert as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant’s future dangerousness based on the contours of the defendant’s skull.” 522 U.S. 136, 153, n.6 (1997) (Stevens, J., concurring in part and dissenting in part).

Oh, if only this worked! Alas, it would probably be about as accurate as the use of Penile plethysmography to convict sex offenders. This marginally invasive (I’m sure) test measures blood flow to a defendant’s penis to determine the level of sexual arousal as he is exposed to sexually suggestive content. That truly is “junk” science. (I couldn’t resist.) I can only assume the test, its use, or both, were conjured by someone who really liked Burgess’ Clockwork Orange.

Because I’m in a particularly philosophical mood, I’ll point out that one era’s “junk” is another era’s treasure. See, e.g., Copernican Revolution, Newtonian physics, Einsteinian Relativism, quantum mechanics, Mendelian inheritance. This phenomenon is known as a paradigm shift. Picture the egg dripping from Justice Stevens’ face when, in 2056, the last brain-researcher finally concedes that comparison of the contours of an individual’s skull is in fact the very best way to predict his propensity to inflict future harm.

In 2000, Federal Rule of Evidence 702 was amended in response to the line of cases starting with Daubert and culminating with Kumho. That rule now limits the testimony of an expert as follows:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”

Interestingly, many federal courts have resisted applying Daubert and the amended FRE 702. A sweeping article by George Mason University Law Professor David Bernstein, pointed out that, fantastically, many judges were either unaware of the amendment to one of the most important rules of evidence (really?) or they deliberately ignored it.  See, Bernstein, “The Misbegotten Judicial Resistance To The Daubert Revolution,” 89 Notre Dame Law Review 27, 50 (2013).

Ok, I realize I’m a little late to the party, as Sargon Enterprises, Inc. v. Univ. of Southern Cal. (212 DJDAR 15846) was issued at the end of November, 2012. But, better late than never, right?

Practitioners who try cases in both Federal District courts and California state courts are all too aware of the schism that has existed between the courts for almost two decades on the question of admissibility of expert opinion. California has long adhered to a line of authorities tracing back to 1923, when Frye v. United States (293 F. 1013 (D.C. Cir.)) was decided. The Frye test, also known as the “general acceptance” test held that a new scientific technique or methodology was inadmissible unless and until the proponent of the evidence established that the technique or methodology had attained “general acceptance” in the relevant field. The California Supreme Court adopted the Frye test in 1976. (People v. Kelly, 17 Cal.3d 24, 32.)

Since the 1993 decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579), federal courts have applied a different standard. Under the Daubert rule, the trial court’s role is to act as a “gatekeeper” to ensure expert testimony that is admitted is reliable based on certain factors, including whether the opinion was being developed solely for purposes of litigation, whether the opinion or methodology had been independently tested in the scientific community and the potential for error.

The schism between federal and California courts continued until the California Supreme Court’s recent pronouncement, in Sargon Enterprises, that “the trial court has the duty to act as a gatekeeper to exclude speculative expert testimony.” The evidence at issue in Sargon was proposed testimony of a damages expert on lost profits suffered by a dental implant inventor who claimed the University of Southern California School of Dentistry had botched a clinical trial of its invention. In holding that the trial court had properly excluded the lost profits opinions, the California Supreme Court said:

“Under [California] Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As we recently explained, [t]he expert’s opinion may not be based on ‘assumptions of fact without evidence support, or on speculative or conjectural matters . . . Exclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?”

The California Supreme Court did caution trial courts, however, that their analysis must focus on methodology, not on conclusions. It said: “The trial court’s gatekeeping role does not involve choosing between competing expert opinions.” Referring to the U.S. Supreme Court’s opinion in Daubert, it said, “The high court warned that the gatekeeper’s focus must be solely on principles and methodology, not on the conclusions that they generate.”