Personal Injury & Torts
Jun. 19, 2002
IBM Wants to Examine Experts
SAN JOSE - Attorneys for International Business Machines Corp., fighting a major toxic tort litigation case accusing the company of exposing employees to cancer-causing chemicals, are challenging a Santa Clara County judge's ruling that is speeding the case to trial.
In a writ petition last week to the 6th District Court of Appeal, IBM lawyers argue that Superior Court Judge Robert Baines' refusal to subject the plaintiffs' scientific experts to judicial review before allowing their testimony to be presented is "unduly narrow and mistaken."
Baines' decision not to conduct Kelly-Frye screening of scientific experts would have serious implications for other toxic tort lawsuits, according to the petition written by Elwood Lui, an attorney with Jones, Day, Reavis & Pogue in Los Angeles.
"The erroneous criteria invoked by the court would eliminate Kelly screening of scientific expert causation testimony in any toxic tort litigation - no matter how difficult the testimony might be for the jury to evaluate critically," Lui wrote.
That would be true even in cases involving "testimony purporting to supply definitive scientific 'answers' to questions of disease causation that in reality have defied scientific resolution," he added.
Under a series of state and federal rulings, most significantly People v. Kelly, 17 Cal.3d 24 (1976), judges decide the admissibility of new scientific evidence based on whether such evidence is generally accepted in the scientific community, whether the expert is qualified and whether the expert followed the correct procedures in making the analysis.
The standard is more favorable to plaintiffs in California than in federal court, which mandates a more stringent judicial review of scientific expert testimony.
Baines ruled April 15 that the plaintiffs' expert testimony should not be subject to Kelly-Frye scrutiny because their opinions are based on "inference, deduction and extrapolation from the available scientific information. None claims to have a new machine, device or process that conclusively establishes the disease-causing potential of the ... chemicals."
The judge wrote that the plaintiffs' expert testimony, subject to vigorous cross-examination by attorneys for IBM and numerous chemical company defendants, is not the type that would "assume a mythic infallibility in the eyes of the jury."
Lui, in his petition, said Baines mistakenly would limit Kelly scrutiny to cases involving some special technique or process. The court, he wrote, also needs to consider whether the generally accepted scientific methodology "was properly applied by the expert."
"That further error was particularly egregious here, since plaintiffs' experts at most had paid lip service to generally accepted methods, while actually departing from them in numerous respects in order to arrive at their preconceived conclusions," Lui wrote.
IBM and the other defendants may have a difficult time challenging Baines' ruling because it is consistent with those made by other California courts in toxic tort cases. The state is considered plaintiff-friendly, and judges here have been much less inclined to exclude expert testimony under Kelly-Frye rules.
The California Supreme Court, in People v. Stoll, 49 Cal.3d 1136 (1989), ruled expert opinion testimony should not be the subject of a Kelly hearing "absent some special feature which effectively blindsides the jury."
Richard Alexander - a partner with Alexander, Hawes & Audet in San Jose who represents the plaintiffs - expressed little concern that IBM's petition would succeed.
"If wishes were horses, beggars would ride," Alexander said. "I'm not going to lose any sleep over it."
Dean Allison, an IBM attorney with Jones Day, could not be reached for comment Monday.
The case of In Re San Jose IBM Workers Litigation, 772093, has been set for trial in January. Baines ruled last month that only four or six plaintiffs would be included in the first trial.
The two sides have battled for years over the Kelly-Frye hearing, which a previous judge had ordered over the plaintiffs' objections. Legal experts say plaintiffs gain nothing in such a proceeding, because a judge might disallow some of their evidence before they can present it to a jury.
The defendants, maintaining the plaintiffs' case rests on "junk science," say such a proceeding is necessary to eliminate bogus claims and avoid confusing the jury with evidence that seems infallible.
The trial is being watched closely by technology companies, which face the prospect of more lawsuits from ailing workers if this one succeeds.
Craiq Anderson
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