In 2023, California saw expansion of employee rights; increases in penalties in employee termination and discipline cases; protection of employee use of cannabis off-hours; and an increase in minimum employee wages. However, the employee rights movement was not just felt in the regulation of employee/employer relations. A newly enacted statute may also forestall efforts by employers to challenge expert opinion testimony regarding alleged emotional distress that is offered by employees at trial.
Frequently employees will offer expert testimony of an employee paid psychiatrist/psychologist/therapist who tells the jury about the existence and extent of the emotional distress the employee allegedly suffered as a result of the adverse employment action at issue in the case. In such cases the employer will then offer an expert witness of its own who will challenge the conclusions reached by the employee’s expert witness.
Newly enacted California Evidence Code Section 801.1, now requires a defense expert’s opinions related to alternative causes of the alleged emotional distress be supported to a “reasonable medical probability.” Consequently, the defense expert must be able to testify that the adverse employment action was not (as the employee contends) more likely than not the cause of the alleged emotional distress. The new Code section may result in some courts barring defense expert testimony altogether.
The new law may especially affect employers where an employee is seeking sizeable emotional distress damages for alleged discrimination, harassment, retaliation or wrongful termination. Employees in such cases have been known to recover hundreds of thousands of dollars for emotional distress. To counter the employee’s claims, the employer may seek to offer an expert psychiatrist/psychologist/therapist to testify about “other stressors” that may have caused the employee’s alleged emotional trauma, such as a recent death in the family, an unrelated medical condition, or a drug or alcohol problem. The new law makes it an obstacle for an employer as the expert’s testimony must be supported to a reasonable degree of medical probability. An employer’s expert that is unable to support the opinion to a “reasonable medical probability” may be barred from testifying as to those opinions.
The new law was drafted by employee trial lawyers’ support in the California legislature to overrule a court decision. In Kline v. Zimmer, Inc., a California appellate court held a defense expert is not required to show that an alternative cause was more likely than not the cause of the plaintiff’s injuries, since the burden of proof ultimately rests with the plaintiff. Under the new statute, however, both sides have the burden to provide expert testimony supported to a reasonable medical probability – not just the plaintiff.
If you are confronted with a potential employee claim, immediately contact legal counsel. The dice have been loaded in the employee’s favor.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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