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A medical expert testifying about causation in support of the party bearing the burden of proof in a medical malpractice case must be able to express an opinion “to a reasonable medical probability,” which means more likely than not.  If the defendant tries to prove that something other than its alleged negligence caused plaintiff's injury, it bears the burden of… Read More

The district court abused its discretion in excluding the testimony of plaintiff's fire investigator expert witness.  Defendant conceded that the expert was qualified and used generally accepted methodology.  The district court improperly found there was too big a gap between the facts on which the expert based his opinion and the conclusions he drew from those facts.  The district court… Read More

This decision holds that under Evid. Code 721(b)(3), an expert may be cross-examined by a scientific or professional publication if the publication is established as a reliable authority by the cross-examined expert, another expert or judicial notice.  Such a publication may be used even if the testifying expert did not consult it in preparing his opinion.  Here, the testifying expert… Read More

The trial court did not abuse its discretion in denying plaintiff's motion to compel Yelp to produce the source code for its software that filters unreliable reviews from its website.  The battling experts disagreed as to the usefulness of the source code in proving whether Yelp's reviews were "trustworthy" as advertised.  Yelp demonstrated that production of the source code would… Read More

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

Following Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 and Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266,  this decision holds that a plaintiff who has medical insurance but chooses to use out-of-plan doctors for his care is treated for damage purposes as if he were uninsured and may submit the doctors' bills as evidence… Read More

Although the trial court did not abuse its discretion in excluding from evidence the digitized spreadsheets of meal break and rounding of work hours for lack of a proper foundation, it did abuse its discretion in excluding an expert witness' opinion based on those digitized spreadsheets.  An expert may rely on inadmissible evidence if based on information that is reliable… 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

The trial court properly admitted HP's expert's lost profits opinion.  Unlike the plaintiff in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, HP was an established business.  The expert had based his opinion on HP's past performance data and considered multiple variables including new product offerings by competing manufacturers.  The expert's projection of lost profits five… Read More

As the last element of a design immunity defense under Gov. Code 830.6, the government entity must establish the reasonableness of its design.  But to do so, it bears only a slight burden of proving that there was substantial evidence to support the reasonableness of the design.  So long as the government entity produces some substantial evidence of reasonableness, such… Read More

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