Expert Can be Questioned on a Construction Standard, Even if Not Relied Upon

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It’s not uncommon in construction defect litigation for each side retain one or more experts to give their opinion as to whether something was constructed in accordance with the standard of care. This usually results in what we legal practitioners call a “battle of the experts.”

The California Code of Civil Procedure and Evidence Code include specific provisions applicable to experts including when they must be disclosed, when and how they can be deposed, and what opinions they can render. When attempting to challenge an expert it is not uncommon for one side to argue that the other side’s expert did not consider a certain fact or certain standard in reaching his or her opinion, therefore, allowing that party to argue at trial that the expert’s opinion is somehow flawed.

However, there are also certain limitations, including a limitation restricting a party from cross-examining an expert on any scientific, technical, or professional test, treatise, journal or similar publication if the witness did not rely on such publication in arriving at or forming his or her opinion. The next case, Paige v. Safeway, Inc. (2021) 74 Cal.App.5th 1108, involved a case of first impression: Namely, whether an expert who did not rely on a publication in forming his or her opinion can nevertheless be questioned on a publication (in this case an ASTM standard) because the publication is a “reliable authority.”

The Paige Case

Debra Paige slipped and fell while crossing a crosswalk to enter into a Safeway in Santa Rosa, California. At the time of the accident, the ground was wet due to rain. Ms. Paige was wearing flip-flops a carrying a small bag over her shoulders when she fell. According to Ms. Paige, “[I]t was like slipping on ice.” Ms. Paige, who was sixty at the time, suffered severe injuries as a result of the fall including a fractured femur.

Approximately two months before the accident, Safeway had contracted with Black Diamond Paving to rest ripe the parking lot including the parking stalls, text legends, and crosswalk. Black Diamond in turn subcontracted with Sawcor Pavement Striping to perform the work. Sawcor, an experienced pavement striping subcontractor in business for nearly 15 years and which had approximately 300-400 jobs under its belt, used Ennis-Flint traffic paint for job. This was the same paint Sawcor had used on other jobs including jobs for Safeway.

During Paige’s lawsuit against Safeway, she deposed Safeway’s expert, Dr. Shakir Shatnawi. Mr. Shatnawi holds a Ph.D. in civil engineering with an emphasis on transportation engineering and worked for the California Department of Transportation for 20 years where his experience encompassed parking lot design including striping. During Dr. Shatnawi’s deposition, Page’s counsel asked him whether he was aware of ASTM and whether standards promulgated by ASTM were well recognized. Dr. Shatnawi testified that he was familiar with ASTM and that standards promulgated by ASTM were generally founded on good science and accepted in the scientific community. However, Dr. Shatnawi also testified that ATM standards did not establish the default rule for safe walking surfaces and that rejected the notion that Safeway was required to follow ASTM standards applicable to safe walking surfaces.

Prior to trial, Safeway filed a motion in limine requesting that the Court preclude Ms. Paige from introducing evidence of, referring to, arguing, mentioning, or making any comment about ASTM standards. According to Safeway, Dr. Shatnawi had not relied on ASTM  standards in reaching his opinions, and by allowing Ms. Paige to question Dr. Shatnawi on ASTM standards, it would allow the jury to incorrectly conclude that Safeway was required to follow ASTM standards and that its failure to do so was a breach of the standard of care.

Following two days of oral argument on the motion, the Court granted Safeway’s motion in limine in part. In its ruling, the Court said that Ms. Paige would be allowed to ask Dr. Shatnawi if he was familiar with ASTM standards for safe walking surfaces – which recommended the use of an abrasive addition, cross-cut grooving, texturing, or other appropriate means to render a painted surface on a walkway slip resistant when wet conditions are reasonably foreseeable – but that Ms. Paige would not be allowed to reference the content of the ASTM standards.

Following trial the jury returned a defense verdict in favor of Safeway. Paige appealed. 

The Appeal

On appeal, Ms. Paige argued that the trial court committed reversible error in precluding her from questioning Dr. Shatnawi regarding the ASTM standards for safe walking surfaces under Evidence Code section 721 which provides as follows:

(a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.

(b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:

(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion.

(2) The publication has been admitted in evidence.

(3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.

According to Ms. Paige, the trial court granted Safeway’s motion on the ground that Dr. Shatnawi had not relied on the ASTM standard in reaching his opinion (Evid. Code §721(b)(1)), but the trial court should have permitted her to question Dr. Shatnawi on the ASTM standard because it is a “reliable authority” under Evidence Code section 721(b)(3) according to the testimony of Dr. Shatnawi who agreed during deposition that ASTM standards were “generally founded on good science and accepted in the scientific community.”

The 1st District Court of Appeal, noting that this was a case of first impression, explained that Evidence Code section 721 “sets forth three statutorily enumerated situations,” that “each situation serves as an independent basis for use of a publication on cross-examination,” and that Section 721(b)(3) “does not require the expert to have referred to, considered, or relied on the publication in forming his or her opinion in order to be cross-examined on its content”:

Section 721(b)(3) sets forth three statutorily enumerated situations in which an expert may be cross-examined about the content or tenor of a publication. Since the statutory language prefaces these three situations with the language “unless any of the following occurs,” each situation serves as an independent basis for use of a publication on cross-examination. (Italics added.) The first situation is when the expert has referred to, considered, or relied upon the publication to reach his or her opinion. (§ 721, subd. (b)(1).) The second situation is when the publication has been admitted into evidence. (§ 721, subd. (b)(2).) The third situation, at issue here, allows for an adverse expert to be cross-examined about the content or tenor of a publication when it has been “established as a reliable authority.” (§ 721(b)(3).)

The plain language of Section 721(b)(3) unambiguously allows a party to cross-examine an adverse expert about the content and tenor of a publication so long as the publication has been established as a reliable authority. For a publication to be the basis for cross-examination under Section 721(b)(3), the statute does not require the expert to have referred to, considered, or relied on the publication in forming his or her own opinion in order to be cross-examined about its content. There is no indication in Section 721(b)(3) or in section 721, subdivision (b) generally that use of a publication established to be reliable authority is subject to any of the requirements in subdivision (b)(1) or (2). Accordingly, the trial court erred in ruling such consideration or reliance by the expert was necessary.

The Court further found that “Dr. Shatnawi’s deposition testimony containing his acknowledgement that ASTM standards are founded on good science, well recognized and accepted in the scientific community, was sufficient to establish the ASTM standard to be reliable authority under Section 721(b)(3).”

However, the Court of Appeal ultimately found that the trial court’s order on Safeway’s motion in limine was harmless error pointing out, among things, that:

  1. Paige had not presented evidence that the ASTM standard established the standard of care or that Safeway’s decision not to adhere to the ASTM standard was a substantial factor in causing her fall;
  2. Paige presented no expert to testify that the crosswalk was not in fact slip resistant;
  3. There was no evidence that Paige had performed an inspection or test of the crosswalk, and had not presented evidence that, had Safeway followed the ASTM standard, she would not have fallen;
  4. Testimony by Black Diamond at trial that Ennis-Flint traffic paint was what “everybody used” and that Black Diamond completed between 200-300 striping jobs per year with that complaint without complaint; and
  5. Testimony by Sawcor at trial that it used Ennis-Flint traffic paint on approximately 10,000 jobs without issue; and
  6. Testimony by Dr. Shatnawi at trial that Ennis-Flint traffic paint was safe, reasonable and appropriate for use on parking lot crosswalks, that it was unnecessary to add sand or grit to the paint, and that the texture of the parking lot surface contributed to making it slip resistant. 

“Accordingly,’ concluded the Court of Appeal, “we conclude that it is not reasonably probable that a result more favorable to Paige would not have been reached in the absence of the trial court’s erroneous evidentiary ruling.”

Conclusion 

For legal practitioners, the take-away is that your expert can be questioned on construction standards even if they didn’t rely on those standards when forming their opinions so long as the standard are established as being “reliable authority” and this can be done either through the opposing party’s expert or even an acknowledgment by your own expert.  

2 Responses to “Expert Can be Questioned on a Construction Standard, Even if Not Relied Upon”

  1. David Ross

    I suppose a take-away for experts is to be cautious about endorsing publications or standards that were not used as foundational for an opinion.

    Reply
    • Garret Murai

      Hi Dave, I would generally agree with one caveat: Evidence Code section 721 allows an expert to be questioned with respect to a publication that has been “established as a reliable authority either by the testimony or admission of the witness or by other expert testimony or by judicial notice.” As such, I don’t think you can ignore, say, a well-established industry standard, and then argue that you can’t be questioned on that standard because you haven’t considered it.

      Reply

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