Mediation Message #162


Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 holds that the exclusion of speculative expert testimony is one of a trial judge’s gatekeeper functions. (Id. at pp. 771-772.) In other words, “the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture.” (Id. at p. 772.) In Sargon, the trial court excluded as speculative the testimony of an expert regarding lost profits based on large anticipated market share gains.To the extent that the expert relied on data that is not relevant to the measure of lost profit damages, the trial court acted within its discretion to exclude the testimony because it was not “[b]ased on matter … that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates … .” (Id. at p. 776.)

San Francisco Print Media Co. v. The Hearst Corp. (2020) 2020 Cal. App. LEXIS 80; A152930 relied upon Sargon to affirm the trial court’s exclusion of an expert’s estimates of costs in a lawsuit by the San Francisco Examiner against the San Francisco Chronicle, in which the Examiner claimed that the Chronicle had sold a certain type of print advertising in its paper at prices that violated Business and Professions Code sections 17000 and 17200. The appellate court found that the  expert had no understanding of several of the cost categories concerning print advertising; had not performed any independent work to determine how those categories should be allocated; relied, instead, on an analysis by the Chronicle’s Director of Finance (Director) as to the allocation of these costs, without knowing the purpose of that analysis; and was not aware that the Director had testified that his analysis had nothing to do with the Unfair Practices Act. The evidence additionally showed that the Director, himself, did not recall the methodology he had used for his analysis or the reasons for some of his decisions. (Id. at 16.) The expert’s “uninformed reliance on (the Director’s) analysis is not the mark of an opinion rooted in sound logic.” (Ibid.

Sargon and San Francisco Print Media, which focus on excluding speculative expert testimony, should be contrasted to ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, which provides a reminder that it may be error to exclude an expert’s testimony because of the supposed inadequacy of that person’s qualifications. In ABM Industries, the trial court erred in excluding the testimony of an expert, despite certain deficiencies in that person’s background information, because the witness’s extensive business experience clearly established that he was an expert in database management and analysis and was familiar with numerous, highly complex transactions in the relevant subject matter. (Id. at pp. 294, 296-297.) “Expertise, in other words, ‘is relative to the subject,’ and is not subject to rigid classification according to formal education or certification.” (Id. at p. 294.) Once an expert’s qualifications have been established, “questions regarding the degree of an expert’s knowledge go more to the weight of the evidence presented than to its admissibility.” (Ibid.; emphasis in the original.)

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

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