Newsletter – May 2020
The Waller case illustrates the importance of preparing an expert on providing opinions that are admissible. When expert witnesses provide opinions based on “possible” cause, courts will sustain objections based upon speculation. In Waller v. FCA US LLC, No. B292524 (Ct. App. Apr. 16, 2020), the Second Appellate District ruled that a trial court had not abused its discretion in excluding a mechanical expert’s opinion based on “possibilities” that the court deemed speculative.
Facts of the Waller Case
In 2013, Lamar Waller purchased a Dodge Durango manufactured by FCA US LLC (“FCA”). Two years later, the check engine light went on and Waller experienced a loss of power while driving the car on the freeway. He took the car to a dealership, which made a repair to the fuel pump relay due to a recall notice. Usually, a unit called the TIPM (“totally integrated power module”) controls the fuel pump relay. The repair involved bypassing the TIPM so that the relay operated separately. After the repair, Waller unfortunately continued to notice losses of power in his car. He sued FCA for breach of express and implied warranties and fraudulent concealment.
Waller’s mechanical expert, Anthony Micale, testified in a deposition about the cause of the car’s problems. He distinguished between two time periods – the time before the repair and the time afterwards. Before, the TIPM controlled the fuel pump relay, while afterwards, the TIPM was bypassed and the fuel pump relay operated separately. Micale repeatedly said that it was “possible” that the fuel pump relay was failing, causing the losses of power. He noted that he thought the recall repair was performed incorrectly. Micale also said that the TIPM was the cause of the car’s problems.
FCA moved in limine to exclude some of Micale’s opinions based on speculation. The trial court ordered Micale to testify outside the presence of the jury at a hearing pursuant to Evidence Code section 402 to explore the foundation for his opinions. At the 402 hearing, FCA’s attorney emphasized that Micale did not claim that the fuel pump relay’s failure actually caused the power loss – rather, Micale only said this was a “possibility”, not a “probability” of cause. In other words, the fuel pump could have been working correctly before the recall repair, and the malfunctioning TIPM could have caused the loss of power. This choice of words by the expert was fatal for Waller.
Was the Expert’s Opinion about the Fuel Pump Relay Speculative?
The trial court decided that Micale did not establish a foundation for his opinion that the fuel pump relay actually caused the loss of power, finding that he “never seized the opportunity to explain why it is probable rather than possible.” Waller appealed the trial court’s decision.
The Court of Appeal focused on the scope of opinions that an expert can testify about under Evidence Code Section 801. In its opinion, the Court of Appeal explained why trial courts may exclude speculative expert testimony from being offered at trial. Trial courts are “gatekeeper[s] to exclude speculative or irrelevant expert opinion.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770). If the matter that the expert relies on does not provide a reasonable basis for the opinion he or she offers, or if the matter itself is unreasonable, then the trial court may exclude opinion testimony.. The trial court also can exclude expert testimony if there is too great of an analytical gap between data and the opinion offered explaining the data.
Here, Micale never testified that the fuel pump relay was defective before the recall repair. Rather, as the trial court noted, Micale only said it was possible – not probable – that the fuel pump relay had failed before the repair. Saying that “anything is possible”, the trial court found that Micale’s opinion did not meet the standard for expert testimony. Micale failed to establish that the fuel pump failure was more likely than not the cause of the power losses. The Court of Appeal agreed.
The Waller case illustrates the importance of preparing an expert for deposition testimony. Micale’s admissions of “possible” causation ultimately provided the basis for the trial court to exclude his opinions. Expert witnesses must base their opinions on more than a possibility that an event occurred for a given reason. Rather, their opinions must establish at least a probability of the proffered chain of causation. Trial counsel must carefully review the distinction between “possibility” and “probability” on the issue of causation.