Can you use scientific articles to cross examine the opposing expert at trial? Paige v. Safeway, Inc.

By Eric Ganci

Ah, this is a trick question. As the answer usually in the law is “it depends.” But let me give you some law then explain how this 2022 case Paige v. Safeway, Inc., cited as 74 Cal.App.5th 1108, gives further instruction. I’ll also say this: Paige is a case of first impression, so it’s an important one to have updated in our legal minds.  

To start, California Evidence Code section 721(b) is the main statute on this. It reads:  

“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.  

If admitted, relevant portions of the publication may be read into evidence but may not be received as exhibits.”  

That 3rd prong of whether the publication has been established as a reliable authority is the main point in Paige.  

So, what happened in Paige?  

The grocer Safeway has a sidewalk outside their store. They paint it with a certain type of paint, it is wet, Plaintiff slips and hurts herself, and files a lawsuit against Safeway claiming Safeway had an unsafe walkway.  

During deposition of Defense’s retained expert on liability, Plaintiff’s lawyer asks Defense Expert about the ASTM (American Society of Testing and Materials) guidelines to ensure walking surfaces are slip-resistant.  

This is part of the depo exchange:  

Q: Are you familiar with the ASTM? 

A: Yes. 

Q: And tell me a little bit about the ASTM. What is the ASTM? 

A: The ASTM provide the standard test methods for laboratories to follow. Many labs that do testing, they follow ASTM. 

Q: Who generally — well strike that. What does the ASTM do generally? 

A: They develop the standard methods. 

Q: And in the scientific community, is the ASTM standards and their methods well recognized? 

A: Yes. 

Q: And do you agree with me that the ASTM is generally founded on good science and accepted in the scientific community? 

A: Yes. 

At trial, Defense files a motion to preclude Plaintiff from cross examining Defense’s expert regarding the ASTM. The Trial Court agrees with Defense and precludes Plaintiff from asking those questions.  

The Jurors find in favor of Safeway and Plaintiff appeals, saying she should have been able to cross Defense’s Expert regarding ASTM.  

The Court here agrees with Plaintiff and the Court says:  

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 subdivisions (b)(1) or (b)(2).  

Accordingly, the trial court erred in ruling such consideration or reliance by the expert was necessary. 

The Court also analyzes Senate Bill 73 from 1997, which the State Bar of California sponsored. The Court says:  

Here, the legislative history leaves no doubt that Section 721(b)(3) was intended to allow a party to cross-examine an adverse expert about any publication that has been established as a reliable authority, whether or not the expert referred to, considered, or relied on that publication for his or her opinion.  

The Court also discusses the Senate Bill 73 analysis along with the Federal Rule of Evidence 803(18) and the Court says:  

“Sponsored by the State Bar, this provision substantially adopts Rule 803(18) of the Federal Rules of Evidence to permit the use of published treatises and other similar publications ‘which are established as reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice,’ to be used to cross-examine an expert witness, whether or not the expert has himself or herself referred to it.  

So the Court agrees with Plaintiff. Yes, Plaintiff here should have been able to cross Defense’s expert based on the articles at deposition.  

But the Court analyzes further whether the ASTM is a reliable authority. Again, a piece of first impression for the Courts in California, as the Court says:  

“The parties have not cited any California law discussing the type of witness testimony or admission establishing a publication as ‘reliable authority’ under Section 721(b)(3).” 

Here, Defense’s Expert “testified at deposition that the ASTM is a well-recognized international standards organization whose views are generally accepted in the scientific community.”  

And with this, the Court holds “[t]his testimony sufficiently established that the ASTM standard was a reliable authority.”  

So, the Court holds in favor of Plaintiff as far as the law is concerned on these issues. But…the Court also finds the Trial Court’s err was harmless, so Plaintiff ultimately still loses her case as the Court here affirms the Trial Court’s judgment.