Amateur philosophers, bar flies, and eulogists, among others, are known to wistfully observe that nothing dies so long as it is remembered and discussed. That’s a comforting sentiment when it comes to loved ones and legacies, but it can be mischievous and bothersome when applied to fallen case law. The long, drawn-out demise of Roberti v. Andy’s Termite & Pest Control. Inc., 113 Cal.App.4th 893 (2003) is a case in point, so to speak.
Pre-Roberti Expert Admissibility Standards – The Kelly/Frye Rule and a Suggestion of Daubert
Roberti is part of a much longer story about California’s journey to adoption of Daubert-style reliability gatekeeping for the testimony of expert witnesses.
California cemented its status as a Frye state in People v. Kelly, 17 Cal.3d 24 (1976). In 1994, in People v. Leahy, 8 Cal.4th 587 (1994), in the immediate wake of Daubert, the California Supreme Court decided to stick with the Kelly/Frye rule and its general-acceptance-in-the-scientific-community standard in cases involving novel scientific evidence. But the Court suggested in extended dicta that in non-Kelly/Frye cases – cases not involving “novel” scientific evidence of debatable reliability – Daubert’s interpretation of the requirements of Federal Rule of Evidence 702 was the “functional equivalent” of the expert admissibility rules in the California Evidence Code. Leahy seemed to augur a two-pronged approach to scientific expert testimony – novel scientific theories or processes would need to meet the Kelly/Frye general acceptance standard, and all other scientific evidence offered by experts would be assessed for reliability and relevance, similar to the gatekeeping required by Rule 702 and Daubert.
Many of the lower courts ignored or resisted this two-track interpretation. The result was a split of authority and some ambiguity as to what sort of foundational screening is required in those cases presenting scientific opinion when the Kelly/Frye rule does not apply.
Roberti v. Andy’s Termite & Pest Control
Against this backdrop, Roberti came out emphatically for a Kelly/Frye or bust standard that no threshold reliability screening is permissible in cases where the expert’s testimony is not predicated on a novel scientific test, technique, or process.
In Roberti, plaintiff’s experts claimed that low-level in utero exposure to a pesticide caused his brain damage and autism, presenting a paradigmatic junk science toxic tort scenario. The trial court took measure of the unreliable foundation for their causation opinions, excluded them, and granted summary judgment.
On appeal, the court first held that the opinion was not subject to the Kelly/Frye rule. This was not surprising given California’s restrictive reading of Kelly/Frye as not applicable to medical causation testimony. The court then rejected defendant’s alternate argument, that if Kelly/Frye did not apply, then “the foundational analysis employed in the federal courts” should govern, holding that the California Evidence Code did not authorize threshold reliability screening. The court read Leahy narrowly as simply a rejection of Daubert in non-Kelly/Frye cases. The court announced that it would adhere to Kelly/Frye as the sole reliability limiter “unless and until our Supreme Court determines that the Daubert analysis is applicable in California.” This was about as definitive a rejection of reliability gatekeeping as an intermediate appellate court could issue.
Plaintiffs’ counsel of course applauded Roberti’s let-it-all-in approach and cited it frequently to counter reliability challenges to their experts, arguing defendants were improperly attempting to smuggle Daubert into California law. The trial and appellate courts generally either cited Roberti in support of avoiding limits on the admissibility of expert opinions or ignored it in the course of enforcing reliability limits on the expert testimony, without commenting on its consistency with Roberti or federal law. Courts in the latter camp prominently included two published opinions affirming the exclusion of unreliable toxicology opinions arising out of the Lockheed toxic tort litigation in 2004 (Lockheed Litigation Cases, 115 Cal.App.4th 558) and 2005 (Lockheed Litigation Cases, 126 Cal.App.4th 271). The second opinion was depublished when the California Supreme Court granted review, seemingly poised to resolve the issue at last. But after full briefing, much anticipation, and a long pendency, the Court dismissed Review due to conflict-based recusals among the Justices. Though it was difficult to reconcile with the first well-reasoned Lockheed opinion (which remained good law), Roberti remained citable precedent and continued to be invoked frequently to evade reliability gatekeeping.
Sargon – the Supreme Court Speaks
And there the case remained until the Supreme Court finally revisited expert admissibility standards in 2012, without advance fanfare, in Sargon Enters., Inc. v. University of. Southern Cal., 55 Cal.4th 747. Without mention of Roberti but ample admiring discussion of the rigorous reliability scrutiny in Lockheed, the Court held that trial courts have a substantial gatekeeping responsibility when expert testimony is challenged as lacking a reliable basis “to ensure that opinions are not speculative, based on unconventional matters or grounded in unsupported reasoning.” In footnote six, the Court confirmed what it had at least signaled in Leahy – that Kelly/Frye remained the rule in a case involving novel science, but in all other cases involving expert testimony the trial court has an obligation to assure that the opinion testimony has a reliable foundation. The Court quashed any doubt as to California gatekeeping’s kinship with Rule 702 and Daubert by citing liberally to Supreme Court case law interpreting Rule 702’s gatekeeping requirements in discussing the requirements of California law. It was quite apparent from any reasonable reading of Sargon that “unless and until” had arrived – Roberti’s self-prescribed obsolescence had materialized.
Post- Sargon Persistence
Or one would think. Reading post-Sargon briefs by plaintiffs seeking to protect their vulnerable experts, one might instead think that Roberti was as hardy and indestructible as the cockroaches that may or may not have played a protagonist’s role in the case. A search of trial and appellate court briefs citing Roberti as a relevant authority for California admissibility standards in non-Kelly/Frye cases over the past five years confirms that it continues to be cited, notwithstanding Sargon. For example, in a recent unsuccessful Petition for Review from a decision holding that the experts’ causation opinions failed to qualify as substantial evidence because they lacked adequate foundation, plaintiff’s counsel cited Roberti for the ultra-dubious assertion that “where expert opinions are derived from the application of accepted medical principles, they have foundation and it is for the jury to decide the issue.” An impressive exercise in chutzpah and reality-blinking. It appears that no Sargon apocalypse can prevent citation to Roberti, even in the absence of a reasoned argument to support its continued vitality.
But no reasonable side-by-side reading of Roberti and Sargon leaves the former with a pulse. Roberti squarely rejected the idea that any “threshold reliability test’ applies in the cases where Kelly/Frye does not. Sargon held just the opposite. And Roberti expressly rejected the notion that California followed a two-track system whereby Kelly/Frye applies to “new scientific methodology, techniques or services” and a threshold reliability analysis applied to all other scientific and technical expert testimony. In stark contrast, Sargon described precisely that schema in footnote 6. In sum, reconciling Roberti’s continued authority with the Supreme Court’s clear (albeit unstated) rejection of its holding and viewpoints requires a near-complete suspension of reason and reality. Citing it as a valid statement of California law on non-Kelly/Frye gatekeeping is an exercise in recalcitrance, or at least denial.
Further testifying to Roberti’s extinction, not a single appellate court has cited Roberti on general gatekeeping standards since Sargon was issued in 2012. The post-Sargon case law, too, is thoroughly inconsistent with Roberti’s survival. And yet, because no court has felt it necessary to respond to Roberti-based arguments or formally declare the case dead and buried, it persists in the dusty corners of misguided briefs. It is, to be sure, an easy target to shoot down when plaintiffs attempt to fly it. But it remains a nuisance to which one must respond and a potential trap for an overworked and understaffed trial court.
Under these circumstances, Roberti’s passing warrants a formal, citable funeral. The opinion was misguided at birth, lived a relatively short and checkered life, and now should be consigned to rest in peace rather than occasionally be trotted out like a scarecrow in a misconceived effort to protect an overextended expert. Here’s hoping that a court of appeal will see fit to do the honors and erect a tombstone sooner rather than later, finally breaking Roberti free from its earthly chains.