Summary Judgment: Admissibility of Expert Testimony

Garrett v. Howmedica Osteonics Corporation (2013) 214 Cal.App.4th 173, 153 Cal.Rptr.3d 693

A cancer patient whose prosthetic femur fractured less than two years after implantation filed suit against the manufacturers of the device, asserting, inter alia, that the fracture was caused by manufacturing defects. The defendants moved for summary judgment, contending that the device was not defective, that the fracture was caused by forces resulting from normal human activity, and that the force simply exceeded the load the product could bear over time.

In opposition, the plaintiff submitted the declaration of an expert metallurgist, who opined he had determined through destructive testing and other examinations that the fractured area was softer than minimum ASTM specifications for the material, that he had detected “a layer of polymeric-like material” which should not have been present, and that based upon these purported anomalies, “there were ‘strong arguments’ that the purported defect had caused the product to fail.”

The trial court granted summary judgment, excluding most of the expert’s declaration as lacking adequate factual foundation, and finding that it was “entirely devoid of any reasoned analysis to support his opinion.”   The court of appeal reversed, holding that the trial court failed “to liberally construe the declaration, as required” and that the sustaining of objections to the declaration was an abuse of discretion. However, the decision was issued one day after the California Supreme Court’s decision in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 regarding expert testimony. The court then granted a rehearing, but again rejected the defendant’s contention that exclusion of evidence was proper under the principles recently articulated in Sargon :

Sargon involved the exclusion of expert testimony at trial. … Evidence Code section 802 allows the trial court to inquire into the reasons for an expert’s opinion so as to determine whether those reasons are supported by the material on which the expert relies. … In Sargon, the trial court conducted that inquiry in an eight-day evidentiary hearing at which the expert was the primary witness. … After the hearing, the trial court in a 33–page ruling concluded that the expert’s opinion on the lost profits of a small dental implant company was “ ‘not based upon matters upon which a reasonable expert would rely,’ ” that it was speculative and that the reasons for the opinion were unsupported by the material on which he relied. … The trial court therefore excluded the expert testimony. … Sargon discussed the expert’s testimony and the trial court’s ruling at length….

Unlike Sargon,… this case involves the exclusion of expert testimony presented in opposition to a summary judgment motion. The trial court here did not conduct an evidentiary hearing, and there was no examination of an expert witness pursuant to Evidence Code section 802. Absent more specific information on the testing methods used and the results obtained, the trial court here could not scrutinize the reasons for Kashar’s opinion to the same extent as did the trial court in Sargon. We do not believe, however, that the absence of such detailed information justified the exclusion of Kashar’s testimony.

The rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact. … In light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial. … Liberally construing the Kashar declaration, we conclude that the explanation provided for Kashar’s opinion was sufficient and that the trial court could not properly exclude the expert testimony based on Kashar’s failure to identify the particular tests employed or describe the test results.

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