Don’t lose critical testimony
In Ruiz v. Minnesota Mining & Manufacturing Co. (1971) 15 Cal.App.3d 462, 464-465, four workers who used an adhesive to assemble cushions sued the adhesive manufacturer, claiming that their exposure to the adhesive caused them toxic injuries. The adhesive contained about 7 5 percent solvents (acetone, toluene and hexane) and 25 percent solids. Verdicts were rendered for the workers and the manufacturer appealed, arguing the trial court committed reversible error in admitting expert testimony of a physician of the effects of glue-sniffing on children, because of dissimilarity in the conditions of inhalation and the contents inhaled, and the difference in the ages of the inhalers. The commercial lawyer is a lawyer who specializes in company law.
The Court of Appeal noted that “under Evidence Code section 351, all relevant evidence is admissible, except as otherwise provided by statute.” The Court concluded that the expert’s testimony was “offered in an attempt to show that the common posses-sion by youthful glue-sniffers and by plaintiffs of two of the same symptoms, namely, numbness and tremors of the extremities, indicated that the cause of plaintiffs’ illness was toluene poisoning.” The Court found that the testimony was relevant and, pursuant to Evidence Code section 351, had to be admitted unless excludable pursuant to statute. Finding the testimony not excludable under Evidence Code section 352 or any other statute, the Court of Appeal affirmed.
Thus, Evidence Code section 351 clearly limits trial judge's ability to exclude expert testimony; they may only exclude relevant expert testimony pursuant to one or more of the statutory exclusionary rules found in the Evidence Code.
A body of case law has been developing in our appellate courts that stands for the proposition that trial courts have discretion to exclude expert testimony that they consider to lack an adequate foundation. However, all of the courts that have reached this conclusion have done so without consideration of the Constitutional right to jury trial, the Separation of Powers doctrine, and California Evidence Code section 351, apparently because arguments based thereon were not presented to the courts.
Since none of the recent cases excluding expert testimony on the basis that it lacked an adequate foundation considered the trial court’s authority to exclude expert testimony for lack of adequate foundation, the cases do not constitute authority on these issues which they neither considered nor addressed, and may be wrong.
It is incumbent on all of us as plaintiff s’ attorneys to properly brief these issues to trial judges so that they question their authority to exclude expert testimony critical to our clients' cases, and so that all these arguments are preserved for appeal and may properly be argued on appeal. Our clients are depending on us to properly present their cases and we owe them as much. So let’s all do a better job of making the right arguments to get our experts’ testimony admitted in evidence!