California’s New Evidence Rule Will Make it Harder for Employers’ Experts

A recent change to the California evidence rules may impact employers’ ability to question employees’ expert opinion testimony on emotional distress claimed in lawsuits going forward.

A recent change to the California evidence rules may impact employers’ ability to question employees’ expert opinion testimony on emotional distress claimed in lawsuits going forward.

The new section, Cal. Evidence Code § 801.1, provides:

  1. In a general civil case, as defined in Rule 1.6 of the California Rules of Court, where the party bearing the burden of proof proffers expert testimony regarding medical causation and where that party’s expert is required as a condition of testifying to opine that causation exists to a reasonable medical probability, the party not bearing the burden of proof may offer a contrary expert only if its expert is able to opine that the proffered alternative cause or causes each exists to a reasonable medical probability, except as provided in subdivision (b).
  2. Subdivision (a) does not preclude a witness testifying as an expert from testifying that a matter cannot meet a reasonable degree of probability in the applicable field, and providing the basis for that opinion.

In employment trials, it’s common for the employee’s counsel to present expert testimony from a psychiatrist or psychologist who opines on the existence and degree of the emotional distress that was suffered by the employee due to the purported adverse employment action. The employer will also offer its own expert to contradict the conclusions of the employee’s expert witness.

But with the new Evidence Code Section 801.1, a defense expert’s opinions on alternative causes of the alleged emotional distress must be supported to a “reasonable medical probability.” This means the defense expert must be able to testify that the adverse employment action was not more likely than not the cause of the alleged emotional distress. As a result, the new section sets a higher standard for evidence offered by expert defense witnesses. Moreover, it may see some judge refuse to admit such testimony altogether.

The Court of Appeals’ Decision in Kline v. Zimmer, Inc.

The statute was explicitly drafted to overrule a pro-employer court decision. The case was an appeal of a judgment entered after a limited retrial of a plaintiff's personal injury claim against Zimmer, Inc., a medical device manufacturer. On appeal, Zimmer asserted that the trial court made two categories of evidentiary error and that the jury awarded Kline excessive damages. The Court agreed with Zimmer that the court erred in excluding all of the plaintiff's proffered medical opinions expressed to less than a reasonable medical probability as to issues on which Kline bore the burden of proof.

As a result, Zimmer was precluded from presenting any expert testimony as to an issue where expert testimony was essential, and the case was reversed for a retrial. The Court established that Zimmer sought to introduce causation opinions and other evidence to challenge the causation opinion of Kline's expert, rather than to prove an actual alternative cause.

Bottom Line

The new evidentiary standard may have significant ramifications for employers where an employee seeks sizeable emotional distress damages for alleged discrimination, harassment, retaliation, or wrongful termination.

Under the new statute, both sides have the burden to provide expert testimony supported to a reasonable medical probability, rather than only the plaintiff. Thus, employers who want to present expert testimony on alternative causes of the employee’s alleged emotional distress must be sure their expert’s testimony is supported to a “reasonable medical probability.” Otherwise, they risk losing the chance to rebut the plaintiff’s expert with their own expert testimony.

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