Expert Opinion Based on Inadmissible Evidence Ok: Cal.App.

Expert opinions cannot be excluded simply because they are based on inadmissible evidence, if the evidence could be reasonably relied upon by the expert, the California Court of Appeals has ruled.

In Zuniga v. Alexandria Care Ctr. (Aug 12, 2021), the California Appellate found that the trial court had discretion to exclude records converted from PDFs to Excel spreadsheets without an expert qualified to provide “the necessary foundation,” but the trial court did not have the discretion to exclude the expert witness who based his opinion on those converted records. Expert witness opinions cannot be excluded simply because they are based on inadmissible evidence.

The plaintiff, Rosalinda Zuniga, claimed that Alexandria Care, her former employer, had violated various provisions of the Labor Code, including failure to provide meal periods, rest periods, failure to indemnify employees for expenses and failure to maintain records, as well as violations of the Business and Professions Code. The latter civil claim she made on behalf of herself and a putative class of employees under the Labor Code Private Attorneys General Act (PAGA).

In discovery, Alexandria Care, a nursing home provider, produced timekeeping and payroll records in PDF format. Zuniga retained Richard Drogin, Ph.D., a professor emeritus of statistics at California State University, to analyze the records. Drogin advised Zunig's counsel to have the PDF records converted to Excel spreadsheets so they could be analyzed, recommending iBridge, LLC for the work as he had relied on them multiple times previously.

Dr. Drogin testified to substantial Code violations made by Alexandria Care, with nearly half of all five+ hour shifts showed no no meal periods, periods less than 30 minutes or where meal periods started after the fifth hour of work. He found “738 hours more in employee ‘punch time' than in paid time.”

To authenticate the accuracy of the record conversion, Zuniga proposed Dean Van Dyke, a vice president of iBridge, LLC. At his deposition, Van Dyke described the double blind data entry process used by iBridge's teams in India to convert the data and the company's ISO 9001 certification for data processing and document imaging services.

Van Dyke, however, was not an expert in computer data processing, did not supervise the conversion process, verify the process or review the accuracy of it. The trial court found that Van Dyke had not provided the necessary foundation to authenticate the data iBridge produced, excluding the spreadsheets from evidence.

Zuniga recalled Dr. Drogin who then testified as to his independent verification of the accuracy of he iBridge data, which he did after his deposition. He explained his method of taking a random sample of 50 pages of the raw PDF data and comparing it with the iBridge spreadsheets, testifying that he found no errors and that his sample generated a 99.7% confidence interval. When asked by the court why he did not verify the data before his deposition, Dr. Drogin explained that, having worked with iBridge in the past, he knew that they were ISO certified assumed he could rely on the accuracy of their data.

Alexandria Care moved to strike the additional testimony since it included opinions that had not been disclosed during his deposition.

The trial court granted the motion, after which Alexandria Care filed a motion for judgment, which the court also granted. In its statement of decision, the court found that, since Dr. Drogin had testified that his opinions were based entirely on the excluded spreadsheets Dr. Drogin's testimony had no foundation and would not be considered. The court dismissed Zuniga's claims as she had no credible evidence of any violation.

Zuniga appealed. The California Court of Appeal found that the trial court's exclusion of Van Dyke's testimony, the iBridge spreadsheets and Dr. Drogin's additional testimony was within its discretion, although noting that “the trial court might well have exercised its discretion differently.”

The appellate court found, however, that excluding Dr. Drogin's expert testimony was an abuse of the trial court's discretion, quoting Olive v. General Nutrition Centers (2018) 30 Cal.App.5th 804, 821-822:

“Expert opinion testimony may be based upon information furnished to the expert by others so long as the information is of a type reasonably relied upon by professionals in the relevant field. [Citations.] However, when the expert's opinion is not based on his own perception or knowledge, but depends instead upon information furnished by others, it is of little value unless the source is reliable.

The appellate court emphasized that, whether or not the evidence is admissable, the expert's opinion must have a reliable basis. Dr. Drogin, the Court noted, had used iBridge spreadsheets multiple times in the past, he was familiar with its processes and quality control measures and comfortable relying on its data to form his opinions. He had also stated in his original testimony that he had done “some comparison of the PDF's to the spreadsheets.”

While the trial court was not obligated to admit the iBridge spreadsheets based on Dr. Drogin's testimony, it could not reasonably conclude the spreadsheets where not “of a type that reasonably may be relied upon by an expert.”

The California Court of Appeals reversed the trial court judgment and remanded the case for a new trial.