California court says experts shouldn't speculate

The ruling establishes case law for future testimony.

By Tanya Albert amednews correspondent — Posted Feb. 16, 2004

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Judges have the right to toss out expert witness testimony if they believe it is based on speculation rather than fact, a California appeals court ruled in a published opinion in January.

"When the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise," the California Court of Appeal for the Fourth Appellate District Division One said in its opinion. "An expert's opinion based on assumption of fact without evidentiary support or on speculative or conjectural factors has no evidentiary value and may be excluded from evidence."

The decision upholds a San Diego trial judge's decision to strike the testimony of a physician expert witness in Jennings v. Palomar Pomerado Health Systems Inc., et al.

Daniel Jennings sued after a retractor was left below his peritoneal cavity. The doctors and hospital did not dispute the fact the instrument was left behind during surgery. The jury's job was to decide, based on expert testimony, how much money to award Jennings.

When Jennings' expert testified that a postoperative infection not in the area around the retractor could have been caused by the instrument because there was "guilt by association," the physicians and hospital challenged the testimony. They argued that there was no basis for that opinion and the judge agreed.

Jennings appealed the decision, claiming the lower court judge engaged in fact-finding. But the California Medical Assn., in a friend-of-the-court brief, supported the hospital and physicians, arguing the judge was doing his job by keeping out speculative and unreliable testimony.

The CMA asked the appellate court to publish the December 2003 ruling so that it would establish case law.

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External links

California appellate court decision in Jennings v. Palomar Pomerado Health Systems, Inc. et al., in pdf (link)

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