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1 LEWIS BRISBOIS BISGAARD & SMITH LLP
DANA ALDEN FOX, SB# 119761
2 E-Mail: Dana.Fox@lewisbrisbois.com
DORISA SHAHMIRZAI, SB# 254024
3 E-Mail: Dorisa.Shahmirzai@lewisbrisbois.com
633 West 5th Street, Suite 4000
4 Los Angeles, California 90071
Telephone: 213.250.1800
5 Facsimile: 213.250.7900
6 SCHROEDER SCHAFF & LOW, INC.
JASON W. SCHAFF, SB# 244285
7 NICOLE M. LOW, SB# 321429
JOHN DAVID WOOTEN, SB# 339253
8 2205 Plaza Drive, Suite 225
Rocklin, CA 95765
9 Telephone: (916) 672-6558
Facsimile: (916) 672-6602
10
Attorneys for Defendants, ADAGIO
11 APARTMENTS, POINT SAN BRUNO
INVESTORS, LP, TAUBE INVESTMENTS,
12 INC. and WOODMONT REAL ESTATE
SERVICES, LP
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
COUNTY OF SACRAMENTO
15
PETER PENKOV, Case No. 34-2019-00252429
16
Plaintiff, DEFENDANTS’ MOTION IN LIMINE
17 NO. 7 TO EXCLUDE ANY AND ALL
vs. EXPERT OPINIONS AS TO
18 PLAINTIFF’S ADVANCED
ADAGIO APARTMENTS; POINT SAN NEUROIMAGING INCLUDING DTI,
19 BRUNO INVESTORS, LP; TAUBE QMENTA AND/OR ANATOMICAL
INVESTMENTS, INC.; WOODMONT REAL SEGMENTAL QUANTITATIVE
20 ESTATE SERVICES, LP; and DOES 3 EVALUATION, OR ALTERNATIVELY,
through 25, inclusive, AN EVIDENTIARY HEARING UNDER
21 CALIFORNIA EVIDENCE CODE
Defendants. SECTION 402; DECLARATION OF
22 DORISA SHAHMIRZAI: EXHIBITS
23 [Filed concurrently with [Proposed] Order]
24 Assigned for All Purposes to:
Hon. Michael G. Bowman, Dept. 47
25
Action Filed: May 8, 2019
26 Trial Date: April 8, 2024
27
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LEWIS
BRISBOIS 138233834.1 1
BISGAARD
& SMITH LLP DEFENDANTS’ MOTION IN LIMINE
ATTORNEYS AT LAW
1 Defendants POINT SAN BRUNO INVESTORS, LP, A CALIFORNIA LIMITED
2 PARTNERSHIP, TAUBE INVESTMENTS, INC. and WOODMONT REAL ESTATE
3 SERVICES, LP (hereinafter collectively “Defendants”) move in limine to Exclude Any And All
4 Expert Opinions as to Plaintiff’s Advanced Neuroimaging Including DTI, QMENTA and/or
5 anatomical segmental quantitative evaluation, or Alternatively, an Evidentiary under California
6 Evidence Code Section 402.
7 Defendants further move the Court to instruct plaintiffs and plaintiffs’ counsel and to require
8 counsel to advise all witnesses:
9 1. Not to attempt to convey to the jury, directly or indirectly, any of the facts
10 mentioned in this Motion without first obtaining permission of the Court outside the presence and
11 hearing of the jury;
12 2. Not to make any reference to the fact that this Motion has been filed; and
13 3. To warn and caution each of plaintiffs’ witnesses to strictly follow the same
14 instructions.
15 This Motion is made on the grounds that: (1) DTI and anatomical segmental quantitative
16 evaluation, are not generally accepted methodology in the relevant scientific community to diagnose
17 for TBI; (2) published medical literature on the subject establish DTI studies to be irrelevant outside of
18 a research setting and not to be used in clinical setting; (3) Diffusion Tensor Imaging is not generally
19 accepted methodology in the relevant scientific community; and (4) published medical studies find
20 DTI’s to be irrelevant outside of research setting.
21 / / /
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
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LEWIS
BRISBOIS 138233834.1 2
BISGAARD
& SMITH LLP DEFENDANTS’ MOTION IN LIMINE
ATTORNEYS AT LAW
1 This Motion is based upon the Memorandum of Points and Authorities accompanying this
2 Motion, the Declaration of Dorisa Shahmirzai, the papers and files on record herein, and on such
3 oral and documentary evidence as may be presented at the hearing of this Motion.
4
5 DATED: March 25, 2024 DANA ALDEN FOX
DORISA SHAHMIRZAI
6 LEWIS BRISBOIS BISGAARD & SMITH LLP
7
8
By: Dorisa Shahnirzai
9 DORISA SHAHMIRZAI
Attorneys for Defendants, ADAGIO
10 APARTMENTS, POINT SAN BRUNO
11 INVESTORS, LP, TAUBE INVESTMENTS,
INC. and WOODMONT REAL ESTATE
12 SERVICES, LP
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BRISBOIS 138233834.1 3
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ATTORNEYS AT LAW
1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION ..................................................................................................................... 6
4
II. THE COURT’S ROLE IS THAT OF GATEKEEPER AS IT PERTAINS TO THE
5 ADMISSIBILITY OF EXPERT TESTIMONY ............................................................................... 7
6 III. THE COURT SHALL EXCLUDE AN OPINION THAT IS BASED IN WHOLE OR IN
SIGNIFICANT PART ON MATTERS THAT ARE NOT A PROPER BASIS FOR SUCH AN
7 OPINION ........................................................................................................................................ 10
8
IV. BECAUSE OF ITS SPECULATIVE NATURE, THE EVIDENCE IS RENDERED
9 IRRELEVANT TO ANY MATERIAL FACT ............................................................................... 17
10 V. A HEARING UNDER EVIDENCE CODE SECTIONS 402 AND 802 SHOULD BE HELD
11 IF THIS MOTION IS NOT GRANTED......................................................................................... 21
12 VI. CONCLUSION ................................................................................................................... 21
13 DECLARATION OF DORISA SHAHMIRZAI ............................................................................ 22
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BRISBOIS 138233834.1 4
BISGAARD
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ATTORNEYS AT LAW
1 TABLE OF AUTHORITIES
2 Page
3
Cases
Bushling v. Freemont Medical Cente
4 (2004) 117 Cal.App.4th 493 ....................................................................................................... 13
Griffith v. Los Angeles County
5 (1968) 267 Cal.App.2d 837 ......................................................................................................... 11
Hinson v. Claremont Comm. Hosp.
6 (1990) 218 Cal.App.3d 1110 ....................................................................................................... 19
In re Marriage of Hewitson
7 (1983) 142 Cal.App.3d 874 ......................................................................................................... 13
Jennings v. Palomar Pomerado
8 Health Systems, Inc.
(2004) 114 Cal.4th 1108.................................................................................................. 11, 12, 13
9
Korsak v. Atlas Hotels
(1992) 2 Cal.App.4th 1516 .......................................................................................................... 12
10 Lockheed Litigation Cases
(2004) 115 Cal.App.4th 558 ............................................................................................. 9, 12, 13
11 P&D Consultants, Inc. v. City of Carlsbad
(2010) 190 Cal.App.4th 1332 ...................................................................................................... 13
12 People v. Babbitt
(1988) 45 Cal.3d 660 ................................................................................................................... 18
13 People v. De le Plane
(1979) 88 Cal.App.3d 223 ........................................................................................................... 18
14 People v. Jackson
(1971) 18 Cal.App.3d 504 ........................................................................................................... 19
15 People v. Louie
(1984) 158 Cal.App.3d Supp. 28................................................................................................. 18
16 PG&E v. Zuckerman
(1987) 189 Cal.App.3d 1113 ........................................................................................... 11, 12, 18
17 Powell v. Kleinman
(2007) 151 Cal. App. 4th 112 ...................................................................................................... 13
18 Sacramento & San Juaquin Drainage Dist.
Ex Rel State Reclamation Bd. v. Reed
19 (1963) 215 Cal.2d 60 ................................................................................................................... 13
20 Saelzler v. Advance Group 400
(2001) 25 Cal.4th 763.................................................................................................................. 18
Salazar v. Upland Police Dept.
21 (2004) 116 Cal.App.4th 934 ........................................................................................................ 18
Sargon Enterprises, Inc. v. University of
22 Southern California
(2012) 55 Cal. 4th 747..................................................................................................... 7, 8, 9, 10
23 William DalPorto & Sons, Inc. v.
Agricultural Labor Relations Board
24 (1987) 191 Cal.App.3d 1195 ....................................................................................................... 18
25 Federal Cases
Evidence Code § 352 ...................................................................................................................... 20
26 Evidence Code § 402 ....................................................................................................................... 22
Evidence Code § 801 ..................................................................................................... 10, 11, 13, 14
27 Evidence Code § 802 ........................................................................................................... 10, 11, 22
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LEWIS
BRISBOIS 138233834.1 5
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& SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7
ATTORNEYS AT LAW
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendants seek an Order from the Court excluding any and all references to the following
4 unsubstantiated methods of interpreting imaging for brain injury, advanced neuroimaging technique,
5 diffusion tensor imaging (DTI), anatomical segmental quantitative evaluation, and QMENTA. (See,
6 Exhibits “A “and “B” attached to Declaration of Dorisa Shahmirzai). Defendants seek exclusion
7 because these methods are not based on reliable scientific principles and are therefore inadmissible.
8 Plaintiff retained Dr. Murray Solomon, a radiologist, to opine as to certain advanced neuroimaging
9 techniques and interpretation of the same. Plaintiff also retained a neurologist, Dr. Fernando
10 Miranda, who also reviewed and evaluated the advanced neuroimaging in forming his opinions
11 about the plaintiff’s head injuries. (See, Exhibit “D “attached to Declaration of Dorisa Shahmirzai)
12 The medical literature is abundantly clear the aforementioned neuroimaging techniques are
13 not admissible and cannot be used in a clinical setting to diagnose a patient with a traumatic brain
14 injury. As such, all the advanced neuroimaging information should be excluded and all of the
15 proffered expert witness testimony on the subject should be excluded. At a minimum, the Court
16 should conduct an Evidence Code section 402 hearing prior to such information being presented to
17 the jury.
18 A. At Least One Court Determined the Challenged Analysis Is Not Admissible
19 The Court in Chapman v. Matulich, 2022 Cal. Super. LEXIS 98922, *8, discussing Qmenta
20 soundly rejected the use of Qmenta as an admissible investigational tool: “Qmenta as an
21 investigative tool according [the defense expert, Dorros] is a ‘very investigational technique.’ The
22 court agrees with Dorros that the employers of this ‘science’ appear to be motivated by financial
23 factors. Again, Qmenta does not appear to have received the imprimatur of approval from any
24 of the associations that guide these practitioners. We also know that insurance carriers do not
25 pay for this testing. Although non-payment of service of a carrier cannot be said to establish a
26 consensus, it seems fair to utilize it as a factor. This is particularly true when one notes that if carriers
27 are denying their insureds possible treatment/diagnosis significant liability through bad faith
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1 lawsuits could/would result. Again, the court would note that no failsafe mechanisms were described
2 in testimony.” The same conclusion was reached relative to the admissibility of the DTI results. See,
3 2022 Cal. Super. LEXIS 98922, *1-6. (Emphasis added).
4 B. Dr. Solomon and Dr. Miranda
5 The plaintiff had multiple MRIs taken of his brain at the time of the accident at UC Davis
6 Medical Center on 4/22/2017. (See, Exhibit “H” to the Declaration of Dorisa Shahmirzai) Plaintiff’s
7 attorneys however, sent Mr. Penkov to get a “new” type pf brain imaging called DTI. Mr. Penkov
8 went to plaintiff’s designated expert Dr. Solomon to perform this new and rare imaging. (See,
9 Exhibit “B” to the Declaration of Dorisa Shahmirzai). Dr. Solomon and Dr. Miranda are relying on
10 this DTI imaging for their expert opinion on this case. (See, Exhibit “A” and “D” to the Declaration
11 of Dorisa Shahmirzai).
12 C. Defendants’ Expert Offered the Following Testimony Concerning Qmenta
13 Defense expert neuroradiologist Dr. David Seidenwurm testified: “And -- and it’s not
14 accepted – what’s the right word – it’s not, you know, accepted by the mainstream or neuroradiology
15 practice for this purpose.” (See, Exhibit “C” to the Declaration of Dorisa Shahmirzai) Dr.
16 Seidenwrum testified that MRI images are sufficient and sound basis for analysis of the brain injury
17 and the use of DTI is a distraction and can distort results. Id. The lack of support for Dr. Miranda
18 and Dr. Solomon’s use and reliance on advanced neuroimaging techniques to support their opinions
19 regarding the plaintiff’s TBI is the reason for the instant motion. These studies are completely
20 inadmissible and improperly used in a clinical setting to try and diagnose a specific individual
21 patient such as the plaintiff.
22 II. THE COURT’S ROLE IS THAT OF GATEKEEPER AS IT PERTAINS TO THE
23 ADMISSIBILITY OF EXPERT TESTIMONY
24 A. The Court’s Duty To Act as Gatekeeper to Exclude Speculative Evidence
25 In Sargon Enterprises, Inc. v. University of Southern California (Cal. 2012) 55 Cal. 4th 747,
26 the California Supreme Court determined the trial court acts as a gatekeeper to exclude speculative
27 or irrelevant expert opinion. The Sargon opinion confirms that it is the Court’s duty as a gatekeeper
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BRISBOIS 138233834.1 7
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& SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7
ATTORNEYS AT LAW
1 to prevent speculative testimony from ever reaching the jury.
2 In 1996, Sargon contracted with the defendant, the University of Southern California
3 (“USC”) to conduct a dental implant study. Sargon sued USC in 1999 alleging breach of that
4 contract. Sargon, at 754. In an attempt to prove future lost profits, Sargon sought to admit the
5 testimony of a certified public accountant, James Skorheim. Id., at 755. Mr. Skorheim had opined
6 that because Sargon’s dental implant was highly innovative, Sargon would have captured a high
7 proportion of the worldwide dental implant market had USC not breached its contract. Id., at 756-
8 757. Skorheim estimated Sargon’s lost profits to be between $220 million and roughly $1 billion.
9 Id., at 755. The trial court excluded Skorhiem’s testimony finding that opinions lacked foundation
10 and were too speculative. Id., at 753. The Court of Appeal reversed that ruling. Id.
11 The California Supreme Court then reversed the appellate court’s decision finding that the
12 trial court had not abused its discretion. Id. In doing so, the Supreme Court clarified the trial court’s
13 role in exercising its critical gatekeeping function for evaluating expert damage evidence including
14 opinions related to future lost profits. The Supreme Court began its discussion with a quote from
15 Judge Friendly,
16 There is no bright line that divides evidence worthy of consideration by a jury,
although subject to heavy counter-attack, from evidence that is not. Especially
17 because of the guaranty of the Seventh Amendment, a federal court must be
exceedingly careful not to set the threshold to the jury room too high. Yet it is the
18 jury system itself that requires the common law ‘judge, in his efforts to prevent
the jury from being satisfied by matters of slight value, capable of being
19 exaggerated by prejudice and hasty reasoning … to exclude matter which does
not rise to a clearly sufficient degree of value’; ‘something more than a
20 minimum of probative value’ is required. 1 Wigmore, Evidence (3d ed. 1940), pp.
409–410. These comments are especially pertinent to an array of figures conveying
21 a delusive impression of exactness in an area where a jury's common sense is less
available than usual to protect it. Sargon, at 769. Emphasis added
22
23 The Supreme Court’s decision concluded that “the trial court has the duty to act as a
24 ‘gatekeeper’ to exclude speculative expert testimony.” Id., at 753. In Sargon, Plaintiff’s expert was
25 faulted because his opinion, much like that of the expert in the case at bar, “starts off assuming,
26 without foundation, its conclusion.” Id., at 761. The Supreme Court’s decision established clear
27 guidance relative to the principle that “(1) Expert testimony must not be speculative.” Id., at 769.
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ATTORNEYS AT LAW
1 As stated by the Supreme Court in Sargon:
2 World history is replete with fascinating “what ifs.” What if Alexander the Great had
been killed early in his career at the Battle of the Granicus River, as he nearly was?
3 What if the Saxon King Harold had prevailed at Hastings, and William, later called
the Conqueror, had died in that battle rather than Harold? What if the series of
4 Chinese overseas discovery expeditions that two Ming Dynasty emperors sponsored,
and that reached at least the east coast of Africa by 1432, had continued rather than
5 stopped? Many serious, and not-so-serious, historians have enjoyed speculating
about these what ifs. But few, if any, claim they are considering what would have
6 happened rather than what might have happened. Because it is inherently difficult
to accurately predict the future or to accurately reconstruct a counterfactual
7 past, it is appropriate that trial courts vigilantly exercise their gatekeeping
function when deciding whether to admit testimony that purports to prove such
8 claims. Sargon, at 781. Emphasis added
9 The Supreme Court noted the existence of a delicate balance between the need to exclude
10 unreliable evidence and the risk of setting the evidentiary threshold so high that the trial judge is
11 essentially making a determination of an expert’s credibility. In reaching its decision, the court relied
12 heavily on its construction of Evidence Code §§ 801(b) and § 802.
13 1. Evidence Code 801 (b)
14 Evidence Code section 801 provides:
15 If a witness is testifying as an expert, his testimony in the form of an opinion is
limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond
16 common experience that the opinion of an expert would assist the trier of fact; and
(b) Based on matter … that is of a type that reasonably may be relied upon by an
17 expert in forming an opinion upon the subject to which his testimony relates, unless
an expert is precluded by law from using such matter as a basis for his opinion.
18
19 The Court noted that, “[s]ubdivision (b) clearly permits a court to determine whether the
20 matter is of a type on which an expert may reasonably rely.” Sargon, at 769. The Court adopted the
21 sound reasoning of Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563 which held that,
22 “the matters relied on [by an expert] must provide a reasonable basis for the particular opinion
23 offered, and that an expert opinion based on speculation or conjecture is inadmissible.” Id., at 770.
24 The Court further stated that, “[t]hus, under Evidence Code section 801, the trial court acts as a
25 gatekeeper to exclude speculative or irrelevant expert opinion.” Id., at 770. The Court then noted,
26 [T]he expert’s opinion may not be based ‘on assumptions of fact without evidentiary
support [citation], or on speculative or conjectural factors … . [¶] Exclusion of expert
27 opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary
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ATTORNEYS AT LAW
1 to the foundational predicate for admission of the expert testimony: will the
testimony assist the trier of fact to evaluate the issues it must decide?’ Sargon, at 770.
2
2. Evidence Code Section 802
3
The Court next turned to Evidence Code section 802 which states in relevant part, “A witness
4
testifying in the form of an opinion may state … the reasons for his opinion and the matter … upon
5
which it is based, unless he is precluded by law from using such reasons or matter as a basis for his
6
opinion. The court in its discretion may require that a witness before testifying in the form of an
7
opinion be first examined concerning the matter upon which his opinion is based.” The Court stated
8
that, “This section indicates the court may inquire into the expert’s reasons for an opinion. It
9
expressly permits the court to examine experts concerning the matter on which they base their
10
opinion before admitting their testimony.” Sargon, at 771. The Supreme Court further stated, “This
11
means that a court may inquire into, not only the type of material on which an expert relies, but also
12
whether that material actually supports the expert’s reasoning. ‘A court may conclude that there is
13
simply too great an analytical gap between the data and the opinion proffered.’” (internal citations
14
omitted) Id.
15
The Supreme Court summarized its analysis stating that:
16
Thus, under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a
17 gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which
an expert may not reasonably rely, (2) based on reasons unsupported by the material on
18 which the expert relies, or (3) speculative. Other provisions of law, including decisional law,
may also provide reasons for excluding expert opinion testimony. Id., at 771.
19
In short, “the gatekeeper’s role ‘is to make certain that an expert, whether basing testimony
20
upon professional studies or personal experience, employs in the courtroom the same level of
21
intellectual rigor that characterizes the practice of an expert in the relevant field.” Id., at 772.
22
III. THE COURT SHALL EXCLUDE AN OPINION THAT IS BASED IN WHOLE OR
23
IN SIGNIFICANT PART ON MATTERS THAT ARE NOT A PROPER BASIS FOR
24
SUCH AN OPINION
25
A. The Court Has An Obligation to Exclude Evidence Which Has No Value to the
26
Trier of Facts
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1 Whether the expert’s testimony will assist the trier of fact is a foundational predicate for
2 admission of the testimony. Jennings v. Palomar Pomerado Health Systems, Inc. (2004) 114 Cal.4th
3 1108. “[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to
4 express any opinion within the area of expertise.” Jennings, at 262.
5 For example, an expert’s opinion based on assumptions of fact without evidentiary
support, or on speculative or conjectural factors has no evidentiary value and may be
6 excluded from evidence. Similarly, when an expert's opinion is purely conclusory
because unaccompanied by a reasoned explanation connecting the factual predicates
7 to the ultimate conclusion, that opinion has no evidentiary value because an expert
opinion is worth no more than the reasons upon which it rests...[A]n expert’s
8 conclusory opinion that something did occur, when unaccompanied by a reasoned
explanation illuminating how the expert employed his or her superior knowledge and
9 training to connect the fact with the ultimate conclusion, does not assist the
jury...[T]he jury remains unenlightened in how or why the facts could support the
10 conclusion urged by the expert, and therefore, the jury remains unequipped with the
tools to decide whether it is more probable than not that the facts do support the
11 conclusion urged by the expert. An expert who gives only a conclusory opinion does
not assist the jury to determine what occurred, but instead supplants the jury by
12 declaring what occurred....
13 Expert opinions are worth no more than the reasons and factual data upon which they are
14 based, and opinions not based on facts otherwise proved cannot rise to the dignity of substantial
15 evidence. Griffith v. Los Angeles County (1968) 267 Cal.App.2d 837-847. “An expert opinion must
16 not be based upon speculative or conjectural data. . . . It is well settled that an expert’s assumption
17 of facts contrary to the proof destroys the opinion.” Hyatt v. Sierra Boat Company (1978) 79
18 Cal.App.3d 325, 338. In short, the value of the opinion evidence generally rests not in the conclusion
19 reached, but on the factors considered and the reasoning employed. B.A.R.T. v. Super. Ct. (1996)
20 46 Cal.App.4th 476, 482; PG&E v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135. “When a trial
21 court has accepted an expert’s ultimate conclusion without critical consideration of his reasoning,
22 and it appears the conclusion was based upon improper or unwarranted matters, . . . the judgment
23 must be reversed for lack of substantial evidence.” PG & E, supra, 189 Cal.App.3d at p. 1136. If
24 his opinion is not based upon facts otherwise proved, or assumes facts contrary to the only proof, it
25 cannot rise to the dignity of substantial evidence. . . It is impossible for any expert basing his
26 testimony solely upon other evidence introduced in the case thus to lift himself by his own
27 bootstraps.” Hyatt, supra, 79 Cal.App.3d at p. 338.
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1 Courts have the obligation to contain expert testimony within the area of the professed
2 expertise, and to require adequate foundations for the opinion. Korsak v. Atlas Hotels (1992) 2
3 Cal.App.4th 1516, 1523. Indeed, the trial court cannot properly admit expert testimony without
4 critical consideration of the expert’s reasoning. An expert’s opinion is only as good as the factors
5 considered and the reasoning employed. Pacific Gas & Electric Co. v. Zuckerman (1987) 189
6 Cal.App.3d 1113, 1135. “Like a house built on sand, the expert's opinion is no better than the facts
7 on which it is based.” People v. Gardeley (1997) 14 Cal.4th 605, 618.
8 Evidence Code section 801, dealing with the admissibility requirements of opinion
testimony by an expert witness, provides in subdivision (b) thereof three separate but
9 related tests that a matter must meet to serve as a proper basis for an expert opinion.
First, the information must come from (a) the witness' personal observation, or (b)
10 the witness' personal knowledge, or (c) an assumption of facts finding support in the
evidence. Second, the matter upon which the opinion is based must be of a type upon
11 which the expert may reasonably rely. Third, an expert may not base his opinion
upon any matter held to be improper as the basis of an expert opinion by
12 constitutional, statutory or decisional law... . In Re Marriage of Hewitson (1983)
142 Cal.App.3d 874, 885.
13
14 In Jennings v. Palomar Pomerado Health Systems (2003) 114 Cal.App.4th 1108, 1116 the
15 court stated “an expert’s opinion based on assumptions of fact without evidentiary support . . . or on
16 speculative or conjectural factors . . . has no evidentiary value . . . and may be excluded from
17 evidence.” (Citations omitted.)
18 The Court explained that a determination of whether or not the expert’s opinion will assist
19 the trier of fact rests on whether or not the expert has proper foundation for his opinions:
20 Exclusion of expert opinions that rest on guess, surmise or conjecture . . . is an
inherent corollary to the foundational predicate for admission of expert testimony:
21 will the testimony assist the trier of fact to evaluate the issues it must decide?
Jennings, supra, 114 Cal.App.4th at p. 1117, 9, citing Lockheed Martin Corp. v. Sup.
22 Ct. (2003) 29 Cal.4th 1096, 1110-1111.
23 The “trust me, I’m an expert, and it makes sense to me” approach is not sufficient. “The
24 expert must provide some articulation of how the jury, if it possessed his or her training and
25 knowledge and employed it to examine the known facts, would reach the same conclusion as the
26 expert.” Jennings, supra, 114 Cal.App.4th at p. 1120, fn. 12. A theoretical possibility is insufficient
27 to establish causation. Id. at 118.
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1 In the In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564 the court also
2 reiterated, “[a]n expert opinion has no value if its basis is unsound.” As in Jennings, the In re
3 Lockheed Litigation Cases court determined that Evidence Code section 801 requires that “the
4 matter relied on [by an expert] must provide a reasonable basis for the particular opinion offered,
5 and that an expert opinion based on speculation or conjecture is inadmissible.”
6 Likewise, in P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1349,
7 the Court excluded expert testimony that the expert was unable to support. Without a reasonable
8 explanation for the underlying assumption, the expert’s opinion had “no evidentiary value.” Ibid.,
9 citing, Jennings, supra, 114 Cal.App.4th at p. 1117, and Lockheed Litigation Cases, supra, 115
10 Cal.App.4th at p. 564. Similarly, in In re Marriage of Hewitson (1983) 142 Cal.App.3d 874, 885,
11 the court excluded expert testimony on the value of stock that lacked sufficient foundation as the
12 expert relied on data about publicly held corporations to evaluate a closely held corporation. In so
13 finding, the court noted that publicly held corporations were too dissimilar to privately held
14 corporations to be comparable. Id. at p. 885-886.
15 In the case at bar, plaintiff’s two retained experts lack the necessary factual foundation to
16 render any opinions upon which this Court sustained objection. “...‘[A]n expert’s opinion that
17 something could be true if certain assumed facts are true, without any foundation for
18 concluding those assumed facts exist’ [citation], has no evidentiary value. [Citation.] (Bushling v.
19 Freemont Medical Center, (2004) 117 Cal.App.4th 493, 510.)” Powell v. Kleinman (Cal. App. 5th
20 Dist. 2007) 151 Cal. App. 4th 112, 126-127. As has already been identified by this court, testimony
21 is of no real benefit to the jury. Sacramento & San Juaquin Drainage Dist. Ex Rel State Reclamation
22 Bd. v. Reed (1963) 215 Cal.2d 60, 68.
23 B. The Evidence Fails to Meet the Kelly-Frye Admissibility Test
24 The California Supreme Court in People v. Kelly (1976) 17 Cal.3d 24, 30, ruled:
25 “…California courts, when faced with a novel method of proof, have required a
26 preliminary showing of general acceptance of the new technique in the relevant scientific
27 community.” The Supreme Court went on to observe: “We have acknowledged the existence of a “.
28
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1 . . misleading aura of certainty which often envelops a new scientific process, obscuring its currently
2 experimental nature.” (Huntingdon v. Crowley, supra, 64 Cal.2d at p. 656; see People v. King,
3 supra, 266 Cal. App. 2d at p. 461.) As stated in Addison, supra, in the course of rejecting the
4 admissibility of voiceprint testimony, “scientific proof may in some instances assume a posture of
5 mystic infallibility in the eyes of a jury . . . .” (United States v. Addison, supra, 498 F.2d at p. 744.)”
6 People v. Kelly, 31-32.
7 The Court in People v. Cegers (1992) 7 Cal.App.4th 988, 995, interpreting the Kelly-Frye
8 holding, reasoned: “The objective of the Kelly-Frye rule is to preclude the use of untested and
9 developing scientific methods of fact determination. The proof of a fact in issue is not permitted by
10 use of new or novel methods until it can be shown that the new procedure has achieved reliability.
11 This determination is made not upon the basis of the trial judge’s determination of scientific
12 reliability, but upon the judge’s discovery as to whether there is “substantial agreement and
13 consensus in the scientific community” regarding the process’s reliability. (People v. Kelly, supra,
14 17 Cal.3d at p. 31.)”
15 The Court in People v. Lund (2021) 64 Cal.App.5th 1119, 1137 held:
16 “Kelly was the genesis of a rule, previously called the ‘Kelly/Frye rule’ that governs
the admissibility of evidence derived from new scientific techniques. ‘Under Kelly,
17 the proponent of evidence derived from a new scientific technique must establish that
(1) the reliability of the new technique has gained general acceptance in the relevant
18 scientific community, (2) the expert testifying to that effect is qualified to give an
opinion on the subject, and (3) the correct scientific procedures were used.’” (People
19 v. Jones, supra, 57 Cal.4th 899, 936.) “The purpose of these threshold
requirements—commonly referred to as the Kelly test—is to protect against the risk
20 of credulous juries attributing to evidence cloaked in scientific terminology an aura
of infallibility.” (People v. Peterson (2020) 10 Cal.5th 409, 444 [472 P.3d 382],
21 italics omitted (Peterson).)
22 “Not every subject of expert testimony needs to satisfy the Kelly test. Courts
determining whether Kelly applies must consider, first, whether the technique at
23 issue is novel, because Kelly ‘“only applies to that limited class of expert testimony
which is based, in whole or part, on a technique, process, or theory which is new to
24 science and, even more so, the law.”’ [Citation.] Second, courts should consider
whether the technique is one whose reliability would be difficult for laypersons to
25 evaluate. A ‘Kelly hearing may be warranted when “the unproven technique or
procedure appears in both name and description to provide some definitive truth
26 which the expert need only accurately recognize and relay to the jury.”’ [Citation.]
Conversely, no Kelly hearing is needed when ‘[j]urors are capable of understanding
27 and evaluating’ the reliability of expert testimony based in whole or in part on the
28
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1 novel technique.” (Peterson, supra, 10 Cal.5th at p. 444, italics omitted.)
2
In order to meet its burden, under the Kelly
Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP DANA ALDEN FOX, SB# 119761 2 E-Mail: Dana.Fox@lewisbrisbois.com DORISA SHAHMIRZAI, SB# 254024 3 E-Mail: Dorisa.Shahmirzai@lewisbrisbois.com 633 West 5th Street, Suite 4000 4 Los Angeles, California 90071 Telephone: 213.250.1800 5 Facsimile: 213.250.7900 6 SCHROEDER SCHAFF & LOW, INC. JASON W. SCHAFF, SB# 244285 7 NICOLE M. LOW, SB# 321429 JOHN DAVID WOOTEN, SB# 339253 8 2205 Plaza Drive, Suite 225 Rocklin, CA 95765 9 Telephone: (916) 672-6558 Facsimile: (916) 672-6602 10 Attorneys for Defendants, ADAGIO 11 APARTMENTS, POINT SAN BRUNO INVESTORS, LP, TAUBE INVESTMENTS, 12 INC. and WOODMONT REAL ESTATE SERVICES, LP 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SACRAMENTO 15 PETER PENKOV, Case No. 34-2019-00252429 16 Plaintiff, DEFENDANTS’ MOTION IN LIMINE 17 NO. 7 TO EXCLUDE ANY AND ALL vs. EXPERT OPINIONS AS TO 18 PLAINTIFF’S ADVANCED ADAGIO APARTMENTS; POINT SAN NEUROIMAGING INCLUDING DTI, 19 BRUNO INVESTORS, LP; TAUBE QMENTA AND/OR ANATOMICAL INVESTMENTS, INC.; WOODMONT REAL SEGMENTAL QUANTITATIVE 20 ESTATE SERVICES, LP; and DOES 3 EVALUATION, OR ALTERNATIVELY, through 25, inclusive, AN EVIDENTIARY HEARING UNDER 21 CALIFORNIA EVIDENCE CODE Defendants. SECTION 402; DECLARATION OF 22 DORISA SHAHMIRZAI: EXHIBITS 23 [Filed concurrently with [Proposed] Order] 24 Assigned for All Purposes to: Hon. Michael G. Bowman, Dept. 47 25 Action Filed: May 8, 2019 26 Trial Date: April 8, 2024 27 28 LEWIS BRISBOIS 138233834.1 1 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE ATTORNEYS AT LAW 1 Defendants POINT SAN BRUNO INVESTORS, LP, A CALIFORNIA LIMITED 2 PARTNERSHIP, TAUBE INVESTMENTS, INC. and WOODMONT REAL ESTATE 3 SERVICES, LP (hereinafter collectively “Defendants”) move in limine to Exclude Any And All 4 Expert Opinions as to Plaintiff’s Advanced Neuroimaging Including DTI, QMENTA and/or 5 anatomical segmental quantitative evaluation, or Alternatively, an Evidentiary under California 6 Evidence Code Section 402. 7 Defendants further move the Court to instruct plaintiffs and plaintiffs’ counsel and to require 8 counsel to advise all witnesses: 9 1. Not to attempt to convey to the jury, directly or indirectly, any of the facts 10 mentioned in this Motion without first obtaining permission of the Court outside the presence and 11 hearing of the jury; 12 2. Not to make any reference to the fact that this Motion has been filed; and 13 3. To warn and caution each of plaintiffs’ witnesses to strictly follow the same 14 instructions. 15 This Motion is made on the grounds that: (1) DTI and anatomical segmental quantitative 16 evaluation, are not generally accepted methodology in the relevant scientific community to diagnose 17 for TBI; (2) published medical literature on the subject establish DTI studies to be irrelevant outside of 18 a research setting and not to be used in clinical setting; (3) Diffusion Tensor Imaging is not generally 19 accepted methodology in the relevant scientific community; and (4) published medical studies find 20 DTI’s to be irrelevant outside of research setting. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / LEWIS BRISBOIS 138233834.1 2 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE ATTORNEYS AT LAW 1 This Motion is based upon the Memorandum of Points and Authorities accompanying this 2 Motion, the Declaration of Dorisa Shahmirzai, the papers and files on record herein, and on such 3 oral and documentary evidence as may be presented at the hearing of this Motion. 4 5 DATED: March 25, 2024 DANA ALDEN FOX DORISA SHAHMIRZAI 6 LEWIS BRISBOIS BISGAARD & SMITH LLP 7 8 By: Dorisa Shahnirzai 9 DORISA SHAHMIRZAI Attorneys for Defendants, ADAGIO 10 APARTMENTS, POINT SAN BRUNO 11 INVESTORS, LP, TAUBE INVESTMENTS, INC. and WOODMONT REAL ESTATE 12 SERVICES, LP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS 138233834.1 3 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE ATTORNEYS AT LAW 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ..................................................................................................................... 6 4 II. THE COURT’S ROLE IS THAT OF GATEKEEPER AS IT PERTAINS TO THE 5 ADMISSIBILITY OF EXPERT TESTIMONY ............................................................................... 7 6 III. THE COURT SHALL EXCLUDE AN OPINION THAT IS BASED IN WHOLE OR IN SIGNIFICANT PART ON MATTERS THAT ARE NOT A PROPER BASIS FOR SUCH AN 7 OPINION ........................................................................................................................................ 10 8 IV. BECAUSE OF ITS SPECULATIVE NATURE, THE EVIDENCE IS RENDERED 9 IRRELEVANT TO ANY MATERIAL FACT ............................................................................... 17 10 V. A HEARING UNDER EVIDENCE CODE SECTIONS 402 AND 802 SHOULD BE HELD 11 IF THIS MOTION IS NOT GRANTED......................................................................................... 21 12 VI. CONCLUSION ................................................................................................................... 21 13 DECLARATION OF DORISA SHAHMIRZAI ............................................................................ 22 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS 138233834.1 4 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 TABLE OF AUTHORITIES 2 Page 3 Cases Bushling v. Freemont Medical Cente 4 (2004) 117 Cal.App.4th 493 ....................................................................................................... 13 Griffith v. Los Angeles County 5 (1968) 267 Cal.App.2d 837 ......................................................................................................... 11 Hinson v. Claremont Comm. Hosp. 6 (1990) 218 Cal.App.3d 1110 ....................................................................................................... 19 In re Marriage of Hewitson 7 (1983) 142 Cal.App.3d 874 ......................................................................................................... 13 Jennings v. Palomar Pomerado 8 Health Systems, Inc. (2004) 114 Cal.4th 1108.................................................................................................. 11, 12, 13 9 Korsak v. Atlas Hotels (1992) 2 Cal.App.4th 1516 .......................................................................................................... 12 10 Lockheed Litigation Cases (2004) 115 Cal.App.4th 558 ............................................................................................. 9, 12, 13 11 P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332 ...................................................................................................... 13 12 People v. Babbitt (1988) 45 Cal.3d 660 ................................................................................................................... 18 13 People v. De le Plane (1979) 88 Cal.App.3d 223 ........................................................................................................... 18 14 People v. Jackson (1971) 18 Cal.App.3d 504 ........................................................................................................... 19 15 People v. Louie (1984) 158 Cal.App.3d Supp. 28................................................................................................. 18 16 PG&E v. Zuckerman (1987) 189 Cal.App.3d 1113 ........................................................................................... 11, 12, 18 17 Powell v. Kleinman (2007) 151 Cal. App. 4th 112 ...................................................................................................... 13 18 Sacramento & San Juaquin Drainage Dist. Ex Rel State Reclamation Bd. v. Reed 19 (1963) 215 Cal.2d 60 ................................................................................................................... 13 20 Saelzler v. Advance Group 400 (2001) 25 Cal.4th 763.................................................................................................................. 18 Salazar v. Upland Police Dept. 21 (2004) 116 Cal.App.4th 934 ........................................................................................................ 18 Sargon Enterprises, Inc. v. University of 22 Southern California (2012) 55 Cal. 4th 747..................................................................................................... 7, 8, 9, 10 23 William DalPorto & Sons, Inc. v. Agricultural Labor Relations Board 24 (1987) 191 Cal.App.3d 1195 ....................................................................................................... 18 25 Federal Cases Evidence Code § 352 ...................................................................................................................... 20 26 Evidence Code § 402 ....................................................................................................................... 22 Evidence Code § 801 ..................................................................................................... 10, 11, 13, 14 27 Evidence Code § 802 ........................................................................................................... 10, 11, 22 28 LEWIS BRISBOIS 138233834.1 5 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendants seek an Order from the Court excluding any and all references to the following 4 unsubstantiated methods of interpreting imaging for brain injury, advanced neuroimaging technique, 5 diffusion tensor imaging (DTI), anatomical segmental quantitative evaluation, and QMENTA. (See, 6 Exhibits “A “and “B” attached to Declaration of Dorisa Shahmirzai). Defendants seek exclusion 7 because these methods are not based on reliable scientific principles and are therefore inadmissible. 8 Plaintiff retained Dr. Murray Solomon, a radiologist, to opine as to certain advanced neuroimaging 9 techniques and interpretation of the same. Plaintiff also retained a neurologist, Dr. Fernando 10 Miranda, who also reviewed and evaluated the advanced neuroimaging in forming his opinions 11 about the plaintiff’s head injuries. (See, Exhibit “D “attached to Declaration of Dorisa Shahmirzai) 12 The medical literature is abundantly clear the aforementioned neuroimaging techniques are 13 not admissible and cannot be used in a clinical setting to diagnose a patient with a traumatic brain 14 injury. As such, all the advanced neuroimaging information should be excluded and all of the 15 proffered expert witness testimony on the subject should be excluded. At a minimum, the Court 16 should conduct an Evidence Code section 402 hearing prior to such information being presented to 17 the jury. 18 A. At Least One Court Determined the Challenged Analysis Is Not Admissible 19 The Court in Chapman v. Matulich, 2022 Cal. Super. LEXIS 98922, *8, discussing Qmenta 20 soundly rejected the use of Qmenta as an admissible investigational tool: “Qmenta as an 21 investigative tool according [the defense expert, Dorros] is a ‘very investigational technique.’ The 22 court agrees with Dorros that the employers of this ‘science’ appear to be motivated by financial 23 factors. Again, Qmenta does not appear to have received the imprimatur of approval from any 24 of the associations that guide these practitioners. We also know that insurance carriers do not 25 pay for this testing. Although non-payment of service of a carrier cannot be said to establish a 26 consensus, it seems fair to utilize it as a factor. This is particularly true when one notes that if carriers 27 are denying their insureds possible treatment/diagnosis significant liability through bad faith 28 LEWIS BRISBOIS 138233834.1 6 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 lawsuits could/would result. Again, the court would note that no failsafe mechanisms were described 2 in testimony.” The same conclusion was reached relative to the admissibility of the DTI results. See, 3 2022 Cal. Super. LEXIS 98922, *1-6. (Emphasis added). 4 B. Dr. Solomon and Dr. Miranda 5 The plaintiff had multiple MRIs taken of his brain at the time of the accident at UC Davis 6 Medical Center on 4/22/2017. (See, Exhibit “H” to the Declaration of Dorisa Shahmirzai) Plaintiff’s 7 attorneys however, sent Mr. Penkov to get a “new” type pf brain imaging called DTI. Mr. Penkov 8 went to plaintiff’s designated expert Dr. Solomon to perform this new and rare imaging. (See, 9 Exhibit “B” to the Declaration of Dorisa Shahmirzai). Dr. Solomon and Dr. Miranda are relying on 10 this DTI imaging for their expert opinion on this case. (See, Exhibit “A” and “D” to the Declaration 11 of Dorisa Shahmirzai). 12 C. Defendants’ Expert Offered the Following Testimony Concerning Qmenta 13 Defense expert neuroradiologist Dr. David Seidenwurm testified: “And -- and it’s not 14 accepted – what’s the right word – it’s not, you know, accepted by the mainstream or neuroradiology 15 practice for this purpose.” (See, Exhibit “C” to the Declaration of Dorisa Shahmirzai) Dr. 16 Seidenwrum testified that MRI images are sufficient and sound basis for analysis of the brain injury 17 and the use of DTI is a distraction and can distort results. Id. The lack of support for Dr. Miranda 18 and Dr. Solomon’s use and reliance on advanced neuroimaging techniques to support their opinions 19 regarding the plaintiff’s TBI is the reason for the instant motion. These studies are completely 20 inadmissible and improperly used in a clinical setting to try and diagnose a specific individual 21 patient such as the plaintiff. 22 II. THE COURT’S ROLE IS THAT OF GATEKEEPER AS IT PERTAINS TO THE 23 ADMISSIBILITY OF EXPERT TESTIMONY 24 A. The Court’s Duty To Act as Gatekeeper to Exclude Speculative Evidence 25 In Sargon Enterprises, Inc. v. University of Southern California (Cal. 2012) 55 Cal. 4th 747, 26 the California Supreme Court determined the trial court acts as a gatekeeper to exclude speculative 27 or irrelevant expert opinion. The Sargon opinion confirms that it is the Court’s duty as a gatekeeper 28 LEWIS BRISBOIS 138233834.1 7 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 to prevent speculative testimony from ever reaching the jury. 2 In 1996, Sargon contracted with the defendant, the University of Southern California 3 (“USC”) to conduct a dental implant study. Sargon sued USC in 1999 alleging breach of that 4 contract. Sargon, at 754. In an attempt to prove future lost profits, Sargon sought to admit the 5 testimony of a certified public accountant, James Skorheim. Id., at 755. Mr. Skorheim had opined 6 that because Sargon’s dental implant was highly innovative, Sargon would have captured a high 7 proportion of the worldwide dental implant market had USC not breached its contract. Id., at 756- 8 757. Skorheim estimated Sargon’s lost profits to be between $220 million and roughly $1 billion. 9 Id., at 755. The trial court excluded Skorhiem’s testimony finding that opinions lacked foundation 10 and were too speculative. Id., at 753. The Court of Appeal reversed that ruling. Id. 11 The California Supreme Court then reversed the appellate court’s decision finding that the 12 trial court had not abused its discretion. Id. In doing so, the Supreme Court clarified the trial court’s 13 role in exercising its critical gatekeeping function for evaluating expert damage evidence including 14 opinions related to future lost profits. The Supreme Court began its discussion with a quote from 15 Judge Friendly, 16 There is no bright line that divides evidence worthy of consideration by a jury, although subject to heavy counter-attack, from evidence that is not. Especially 17 because of the guaranty of the Seventh Amendment, a federal court must be exceedingly careful not to set the threshold to the jury room too high. Yet it is the 18 jury system itself that requires the common law ‘judge, in his efforts to prevent the jury from being satisfied by matters of slight value, capable of being 19 exaggerated by prejudice and hasty reasoning … to exclude matter which does not rise to a clearly sufficient degree of value’; ‘something more than a 20 minimum of probative value’ is required. 1 Wigmore, Evidence (3d ed. 1940), pp. 409–410. These comments are especially pertinent to an array of figures conveying 21 a delusive impression of exactness in an area where a jury's common sense is less available than usual to protect it. Sargon, at 769. Emphasis added 22 23 The Supreme Court’s decision concluded that “the trial court has the duty to act as a 24 ‘gatekeeper’ to exclude speculative expert testimony.” Id., at 753. In Sargon, Plaintiff’s expert was 25 faulted because his opinion, much like that of the expert in the case at bar, “starts off assuming, 26 without foundation, its conclusion.” Id., at 761. The Supreme Court’s decision established clear 27 guidance relative to the principle that “(1) Expert testimony must not be speculative.” Id., at 769. 28 LEWIS BRISBOIS 138233834.1 8 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 As stated by the Supreme Court in Sargon: 2 World history is replete with fascinating “what ifs.” What if Alexander the Great had been killed early in his career at the Battle of the Granicus River, as he nearly was? 3 What if the Saxon King Harold had prevailed at Hastings, and William, later called the Conqueror, had died in that battle rather than Harold? What if the series of 4 Chinese overseas discovery expeditions that two Ming Dynasty emperors sponsored, and that reached at least the east coast of Africa by 1432, had continued rather than 5 stopped? Many serious, and not-so-serious, historians have enjoyed speculating about these what ifs. But few, if any, claim they are considering what would have 6 happened rather than what might have happened. Because it is inherently difficult to accurately predict the future or to accurately reconstruct a counterfactual 7 past, it is appropriate that trial courts vigilantly exercise their gatekeeping function when deciding whether to admit testimony that purports to prove such 8 claims. Sargon, at 781. Emphasis added 9 The Supreme Court noted the existence of a delicate balance between the need to exclude 10 unreliable evidence and the risk of setting the evidentiary threshold so high that the trial judge is 11 essentially making a determination of an expert’s credibility. In reaching its decision, the court relied 12 heavily on its construction of Evidence Code §§ 801(b) and § 802. 13 1. Evidence Code 801 (b) 14 Evidence Code section 801 provides: 15 If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond 16 common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter … that is of a type that reasonably may be relied upon by an 17 expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. 18 19 The Court noted that, “[s]ubdivision (b) clearly permits a court to determine whether the 20 matter is of a type on which an expert may reasonably rely.” Sargon, at 769. The Court adopted the 21 sound reasoning of Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563 which held that, 22 “the matters relied on [by an expert] must provide a reasonable basis for the particular opinion 23 offered, and that an expert opinion based on speculation or conjecture is inadmissible.” Id., at 770. 24 The Court further stated that, “[t]hus, under Evidence Code section 801, the trial court acts as a 25 gatekeeper to exclude speculative or irrelevant expert opinion.” Id., at 770. The Court then noted, 26 [T]he expert’s opinion may not be based ‘on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors … . [¶] Exclusion of expert 27 opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary 28 LEWIS BRISBOIS 138233834.1 9 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?’ Sargon, at 770. 2 2. Evidence Code Section 802 3 The Court next turned to Evidence Code section 802 which states in relevant part, “A witness 4 testifying in the form of an opinion may state … the reasons for his opinion and the matter … upon 5 which it is based, unless he is precluded by law from using such reasons or matter as a basis for his 6 opinion. The court in its discretion may require that a witness before testifying in the form of an 7 opinion be first examined concerning the matter upon which his opinion is based.” The Court stated 8 that, “This section indicates the court may inquire into the expert’s reasons for an opinion. It 9 expressly permits the court to examine experts concerning the matter on which they base their 10 opinion before admitting their testimony.” Sargon, at 771. The Supreme Court further stated, “This 11 means that a court may inquire into, not only the type of material on which an expert relies, but also 12 whether that material actually supports the expert’s reasoning. ‘A court may conclude that there is 13 simply too great an analytical gap between the data and the opinion proffered.’” (internal citations 14 omitted) Id. 15 The Supreme Court summarized its analysis stating that: 16 Thus, under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a 17 gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on 18 which the expert relies, or (3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony. Id., at 771. 19 In short, “the gatekeeper’s role ‘is to make certain that an expert, whether basing testimony 20 upon professional studies or personal experience, employs in the courtroom the same level of 21 intellectual rigor that characterizes the practice of an expert in the relevant field.” Id., at 772. 22 III. THE COURT SHALL EXCLUDE AN OPINION THAT IS BASED IN WHOLE OR 23 IN SIGNIFICANT PART ON MATTERS THAT ARE NOT A PROPER BASIS FOR 24 SUCH AN OPINION 25 A. The Court Has An Obligation to Exclude Evidence Which Has No Value to the 26 Trier of Facts 27 28 LEWIS BRISBOIS 138233834.1 10 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 Whether the expert’s testimony will assist the trier of fact is a foundational predicate for 2 admission of the testimony. Jennings v. Palomar Pomerado Health Systems, Inc. (2004) 114 Cal.4th 3 1108. “[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to 4 express any opinion within the area of expertise.” Jennings, at 262. 5 For example, an expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors has no evidentiary value and may be 6 excluded from evidence. Similarly, when an expert's opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates 7 to the ultimate conclusion, that opinion has no evidentiary value because an expert opinion is worth no more than the reasons upon which it rests...[A]n expert’s 8 conclusory opinion that something did occur, when unaccompanied by a reasoned explanation illuminating how the expert employed his or her superior knowledge and 9 training to connect the fact with the ultimate conclusion, does not assist the jury...[T]he jury remains unenlightened in how or why the facts could support the 10 conclusion urged by the expert, and therefore, the jury remains unequipped with the tools to decide whether it is more probable than not that the facts do support the 11 conclusion urged by the expert. An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by 12 declaring what occurred.... 13 Expert opinions are worth no more than the reasons and factual data upon which they are 14 based, and opinions not based on facts otherwise proved cannot rise to the dignity of substantial 15 evidence. Griffith v. Los Angeles County (1968) 267 Cal.App.2d 837-847. “An expert opinion must 16 not be based upon speculative or conjectural data. . . . It is well settled that an expert’s assumption 17 of facts contrary to the proof destroys the opinion.” Hyatt v. Sierra Boat Company (1978) 79 18 Cal.App.3d 325, 338. In short, the value of the opinion evidence generally rests not in the conclusion 19 reached, but on the factors considered and the reasoning employed. B.A.R.T. v. Super. Ct. (1996) 20 46 Cal.App.4th 476, 482; PG&E v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135. “When a trial 21 court has accepted an expert’s ultimate conclusion without critical consideration of his reasoning, 22 and it appears the conclusion was based upon improper or unwarranted matters, . . . the judgment 23 must be reversed for lack of substantial evidence.” PG & E, supra, 189 Cal.App.3d at p. 1136. If 24 his opinion is not based upon facts otherwise proved, or assumes facts contrary to the only proof, it 25 cannot rise to the dignity of substantial evidence. . . It is impossible for any expert basing his 26 testimony solely upon other evidence introduced in the case thus to lift himself by his own 27 bootstraps.” Hyatt, supra, 79 Cal.App.3d at p. 338. 28 LEWIS BRISBOIS 138233834.1 11 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 Courts have the obligation to contain expert testimony within the area of the professed 2 expertise, and to require adequate foundations for the opinion. Korsak v. Atlas Hotels (1992) 2 3 Cal.App.4th 1516, 1523. Indeed, the trial court cannot properly admit expert testimony without 4 critical consideration of the expert’s reasoning. An expert’s opinion is only as good as the factors 5 considered and the reasoning employed. Pacific Gas & Electric Co. v. Zuckerman (1987) 189 6 Cal.App.3d 1113, 1135. “Like a house built on sand, the expert's opinion is no better than the facts 7 on which it is based.” People v. Gardeley (1997) 14 Cal.4th 605, 618. 8 Evidence Code section 801, dealing with the admissibility requirements of opinion testimony by an expert witness, provides in subdivision (b) thereof three separate but 9 related tests that a matter must meet to serve as a proper basis for an expert opinion. First, the information must come from (a) the witness' personal observation, or (b) 10 the witness' personal knowledge, or (c) an assumption of facts finding support in the evidence. Second, the matter upon which the opinion is based must be of a type upon 11 which the expert may reasonably rely. Third, an expert may not base his opinion upon any matter held to be improper as the basis of an expert opinion by 12 constitutional, statutory or decisional law... . In Re Marriage of Hewitson (1983) 142 Cal.App.3d 874, 885. 13 14 In Jennings v. Palomar Pomerado Health Systems (2003) 114 Cal.App.4th 1108, 1116 the 15 court stated “an expert’s opinion based on assumptions of fact without evidentiary support . . . or on 16 speculative or conjectural factors . . . has no evidentiary value . . . and may be excluded from 17 evidence.” (Citations omitted.) 18 The Court explained that a determination of whether or not the expert’s opinion will assist 19 the trier of fact rests on whether or not the expert has proper foundation for his opinions: 20 Exclusion of expert opinions that rest on guess, surmise or conjecture . . . is an inherent corollary to the foundational predicate for admission of expert testimony: 21 will the testimony assist the trier of fact to evaluate the issues it must decide? Jennings, supra, 114 Cal.App.4th at p. 1117, 9, citing Lockheed Martin Corp. v. Sup. 22 Ct. (2003) 29 Cal.4th 1096, 1110-1111. 23 The “trust me, I’m an expert, and it makes sense to me” approach is not sufficient. “The 24 expert must provide some articulation of how the jury, if it possessed his or her training and 25 knowledge and employed it to examine the known facts, would reach the same conclusion as the 26 expert.” Jennings, supra, 114 Cal.App.4th at p. 1120, fn. 12. A theoretical possibility is insufficient 27 to establish causation. Id. at 118. 28 LEWIS BRISBOIS 138233834.1 12 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 In the In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564 the court also 2 reiterated, “[a]n expert opinion has no value if its basis is unsound.” As in Jennings, the In re 3 Lockheed Litigation Cases court determined that Evidence Code section 801 requires that “the 4 matter relied on [by an expert] must provide a reasonable basis for the particular opinion offered, 5 and that an expert opinion based on speculation or conjecture is inadmissible.” 6 Likewise, in P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1349, 7 the Court excluded expert testimony that the expert was unable to support. Without a reasonable 8 explanation for the underlying assumption, the expert’s opinion had “no evidentiary value.” Ibid., 9 citing, Jennings, supra, 114 Cal.App.4th at p. 1117, and Lockheed Litigation Cases, supra, 115 10 Cal.App.4th at p. 564. Similarly, in In re Marriage of Hewitson (1983) 142 Cal.App.3d 874, 885, 11 the court excluded expert testimony on the value of stock that lacked sufficient foundation as the 12 expert relied on data about publicly held corporations to evaluate a closely held corporation. In so 13 finding, the court noted that publicly held corporations were too dissimilar to privately held 14 corporations to be comparable. Id. at p. 885-886. 15 In the case at bar, plaintiff’s two retained experts lack the necessary factual foundation to 16 render any opinions upon which this Court sustained objection. “...‘[A]n expert’s opinion that 17 something could be true if certain assumed facts are true, without any foundation for 18 concluding those assumed facts exist’ [citation], has no evidentiary value. [Citation.] (Bushling v. 19 Freemont Medical Center, (2004) 117 Cal.App.4th 493, 510.)” Powell v. Kleinman (Cal. App. 5th 20 Dist. 2007) 151 Cal. App. 4th 112, 126-127. As has already been identified by this court, testimony 21 is of no real benefit to the jury. Sacramento & San Juaquin Drainage Dist. Ex Rel State Reclamation 22 Bd. v. Reed (1963) 215 Cal.2d 60, 68. 23 B. The Evidence Fails to Meet the Kelly-Frye Admissibility Test 24 The California Supreme Court in People v. Kelly (1976) 17 Cal.3d 24, 30, ruled: 25 “…California courts, when faced with a novel method of proof, have required a 26 preliminary showing of general acceptance of the new technique in the relevant scientific 27 community.” The Supreme Court went on to observe: “We have acknowledged the existence of a “. 28 LEWIS BRISBOIS 138233834.1 13 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 . . misleading aura of certainty which often envelops a new scientific process, obscuring its currently 2 experimental nature.” (Huntingdon v. Crowley, supra, 64 Cal.2d at p. 656; see People v. King, 3 supra, 266 Cal. App. 2d at p. 461.) As stated in Addison, supra, in the course of rejecting the 4 admissibility of voiceprint testimony, “scientific proof may in some instances assume a posture of 5 mystic infallibility in the eyes of a jury . . . .” (United States v. Addison, supra, 498 F.2d at p. 744.)” 6 People v. Kelly, 31-32. 7 The Court in People v. Cegers (1992) 7 Cal.App.4th 988, 995, interpreting the Kelly-Frye 8 holding, reasoned: “The objective of the Kelly-Frye rule is to preclude the use of untested and 9 developing scientific methods of fact determination. The proof of a fact in issue is not permitted by 10 use of new or novel methods until it can be shown that the new procedure has achieved reliability. 11 This determination is made not upon the basis of the trial judge’s determination of scientific 12 reliability, but upon the judge’s discovery as to whether there is “substantial agreement and 13 consensus in the scientific community” regarding the process’s reliability. (People v. Kelly, supra, 14 17 Cal.3d at p. 31.)” 15 The Court in People v. Lund (2021) 64 Cal.App.5th 1119, 1137 held: 16 “Kelly was the genesis of a rule, previously called the ‘Kelly/Frye rule’ that governs the admissibility of evidence derived from new scientific techniques. ‘Under Kelly, 17 the proponent of evidence derived from a new scientific technique must establish that (1) the reliability of the new technique has gained general acceptance in the relevant 18 scientific community, (2) the expert testifying to that effect is qualified to give an opinion on the subject, and (3) the correct scientific procedures were used.’” (People 19 v. Jones, supra, 57 Cal.4th 899, 936.) “The purpose of these threshold requirements—commonly referred to as the Kelly test—is to protect against the risk 20 of credulous juries attributing to evidence cloaked in scientific terminology an aura of infallibility.” (People v. Peterson (2020) 10 Cal.5th 409, 444 [472 P.3d 382], 21 italics omitted (Peterson).) 22 “Not every subject of expert testimony needs to satisfy the Kelly test. Courts determining whether Kelly applies must consider, first, whether the technique at 23 issue is novel, because Kelly ‘“only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to 24 science and, even more so, the law.”’ [Citation.] Second, courts should consider whether the technique is one whose reliability would be difficult for laypersons to 25 evaluate. A ‘Kelly hearing may be warranted when “the unproven technique or procedure appears in both name and description to provide some definitive truth 26 which the expert need only accurately recognize and relay to the jury.”’ [Citation.] Conversely, no Kelly hearing is needed when ‘[j]urors are capable of understanding 27 and evaluating’ the reliability of expert testimony based in whole or in part on the 28 LEWIS BRISBOIS 138233834.1 14 BISGAARD & SMITH LLP DEFENDANTS’ MOTION IN LIMINE NO. 7 ATTORNEYS AT LAW 1 novel technique.” (Peterson, supra, 10 Cal.5th at p. 444, italics omitted.) 2 In order to meet its burden, under the Kelly