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Evidence

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Explaining the California Supreme Court's relatively recent decisions dealing with the admissibility of expert testimony based on hearsay sources, this opinion explains that expert opinion is properly admissible if based on hearsay about background facts or principles of science and the like.  (See People v. Sanchez (2016) 63 Cal.4th 665; People v. Veamatahau (2020) 9 Cal.5th 16; People v. Valencia… Read More

Under the federal recalcitrant witness statute, 28 U.S.C. § 1826(a), when a witness refuses to testify or provide other information, including documentary evidence, the court “may summarily order his confinement . . . until such time as the witness is willing to give such testimony or provide such information.”  This decision holds that section 1826 applies to post-judgment as well… Read More

This decision affirms a judgment against Monsanto for failing to warn of the toxic nature of Roundup.  It holds that the Federal Insecticide, Fungicide and Rodenticide Act (7 USC 136 et seq.) does not preempt state common law duty to warn and defective design products liability claims.  There was substantial evidence to support the jury's verdict of liability on those… Read More

The D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 doctrine about summary judgment affidavits not being allowed to contradict admissions in discovery is not a doctrine regarding the admissibility of evidence, but rather whether the contradictory evidence can be given an weight.  Here, an expert changed his answer on the key question of whether a plaintiff was exposed… Read More

It is misconduct for counsel to argue to the jury that there is no evidence on an issue when he knows that such evidence exists but was excluded at his request.  Here counsel exacerbated that misconduct by telling the jury that the court's admonition to ignore the arresting officer's statement about defendnat's intoxication showed the testimony was nothing but a… Read More

Statistical evidence is admissible to establish predominance under FRCivP 23(b)(3) if that evidence would be admissible in an individual action on the same claim, the statistical evidence is linked to the plaintiffs' theory of liability and the use of averaging assumptions does not conceal the variations that otherwise would defeat class certification.  Here, plaintiffs' statistical evidence satisfied those three tests. … Read More

F.R.Civ.P. 37(c)(1) provides that a party that fails to provide information or identify a witness as required by F.R.Civ.P. 26(a) or (e) is barred from using the undisclosed evidence or witness unless the district court finds the failure substantially justified or finds a different sanction more appropriate.  To invoke the court's power under this provision, the offending party must move… Read More

The trial court abused its discretion in excluding an expert's opinion as to lost profits in ruling on a summary judgment motion.  While most of his opinion was speculative, one part dealt with lost profits using a before-and-after method based on 16 months of actual profits earned before the allegedly harmful event.  The before-and-after method is an approved way to… Read More

Under the Stored Communications Act (18 USC 2701, 2707) creates a private right of action against a person who intentionally accesses, without authorization, an electronic communication system, thereby obtaining an electronic communication in the system's electronic storage.  For this purpose, electronic storage includes storage by the system for the purpose of backup.  This decision holds that wife raised triable issues,… Read More

Three conclusions reached in a Police Foundation report of the incident in which plaintiff was injured shoulld have been admitted into evidence under the adoptive admission exception to the hearsay rule.  (Evid. Code 1221, 1222.)  The police chief had stated at a press conference that he adopted the report's conclusions as true.  And, the police chief was authorized to make… Read More

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