As James Beck of Reed Smith puts it, “California has long gone its merry, idiosyncratic way in the Daubert/Frye wars.” That’s why it was a big surprise when the California Supreme Court cut off this legal tangent and stated that California courts must apply the same Daubert standard as their federal counterparts when it comes to admitting opinion testimony not based on a new scientific technique.
Since 1995, when the U.S. Supreme Court decided Daubert v Merrell Dow Pharms., Inc. (1993) 509 US 579, 125 L Ed 2d 469, 113 S Ct 2786, expert testimony in federal court has had to be both relevant and reliable, and those requirements were enforced by the federal trial judge in the case who served as a “gatekeeper.” Many California judges thought that there was generally a lower threshold for the admission of expert opinion testimony in California state courts than in the federal courts.
But that divergence between California and federal law is largely over now: in its unanimous decision in Sargon Enters., Inc. v University of S. Cal. (Nov. 26, 2012, S191550) 2012 Cal Lexis 10713, the California Supreme Court states that Daubert applies to opinion testimony in California, except for testimony on new scientific techniques, which continues to be subject to the Kelly general acceptance test.
The Sargon decision calls into question the continued validity of all earlier California state court cases on the admissibility of expert opinions outside the “new scientific techniques” area. What is a precedent-reliant practitioner to do? Well, until there’s a body of post-Sargon California case law, consider federal cases for guidance, as well as those pre-Sargon California state court cases that took a more rigorous approach to the admission of expert testimony.
Now that you know it applies in California, need to brush up on Daubert? No problem! CEB covers the Daubert test in California Expert Witness Guide, chap 4, as well as in California Trial Practice: Civil Procedure During Trial.