Daily Blast - May 06, 2020 - Lewis Brisbois Bisgaard & Smith LLP

Today, the Court of Appeal, Second District, Division One (Los Angeles) certified for publication its opinion in Waller v. FCA US LLC. Waller analyzes the admissibility of expert opinions under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770-771. The Court of Appeal held that the trial court did not abuse its discretion in excluding plaintiff’s speculative expert testimony. The opinion affirms the trial court’s exclusion of expert testimony that a certain consumer product component (the fuel pump relay in a Dodge Durango) was only a “possible” (not a probable) cause of the claimed product defect, because such testimony was too speculative to assist the trier of fact. (Typed opn. 2, 9-10.) This is the first published opinion in a vehicle warranty/lemon law case that address the exclusion of expert evidence under Sargon, but, it relies and expands on principles that apply broadly in other contexts.

Waller will help define a trial court’s gatekeeper function under Evidence Code section 801, which requires the exclusion of expert opinions that don’t satisfy the minimal requirement of probability. Defense counsel can use Waller to attack speculative expert testimony in the hundreds of California lemon law cases involving the particular expert involved in this case—Anthony Micale—who is to lemon law what Brad Avrit is to slip-and-fall. The opinion’s very detailed analysis of the specific evidence in the case, the foundation proffered by the plaintiff’s expert witness, and the particular portions of challenged testimony, all show how courts should apply admissibility rules.

Although the case is a Song Beverly case, the court’s Sargon analysis should apply equally in any setting. Everyone should consider revising their Sargon MILs to include this new case.