[00:00:01] Speaker 00:
Good morning, everyone.

[00:00:14] Speaker 00:
There's one matter on the calendar that's been submitted on the briefs and record that's worthy Hotels, Inc.

[00:00:19] Speaker 00:
versus Fireman's Fund Insurance Company.

[00:00:22] Speaker 00:
I'll call the cases in the order they're listed on the calendar.

[00:00:26] Speaker 00:
The first one up for argument is Landeros versus Schaeffer.

[00:00:35] Speaker 02:
Good morning and may it please the court, Eric Grant, for plaintiffs and appellants, the Landeros family.

[00:00:41] Speaker 02:
With the court's permission, I would reserve five minutes for rebuttal.

[00:00:44] Speaker 00:
All right.

[00:00:45] Speaker 00:
I'll try to help you out, but keep your eye on the clock as well, please.

[00:00:48] Speaker 02:
Thank you, Your Honor.

[00:00:50] Speaker 02:
In a direct examination scripted by defense counsel, a putatively disinterested public servant presented knowingly false testimony about his preexisting relationship with defendants and their counsel, Dr. Jason Tovar,

[00:01:06] Speaker 02:
whom defense counsel called the key witness in this case, was presented to the jury as an independent and impartial expert who could be trusted more than the mere hired gun retained by plaintiffs.

[00:01:21] Speaker 02:
But all that was a lie.

[00:01:23] Speaker 02:
Both counsel and witness knew that Dr. Tovar was being personally compensated.

[00:01:29] Speaker 00:
Were you the counsel below?

[00:01:30] Speaker 02:
I was not, Your Honor.

[00:01:32] Speaker 00:
What did counsel know about Dr. Tovar's situation and arrangement at the time of trial?

[00:01:40] Speaker 02:
Plaintiff's counsel knew that Dr. Tovar had conducted the autopsy of Mr. Landeros.

[00:01:48] Speaker 02:
But plaintiff's counsel did not know of the relationship between defendants and Dr. Tovar.

[00:01:55] Speaker 02:
Plaintiff's counsel did not know that nearly two years before trial,

[00:02:00] Speaker 02:
that counsel and Dr. Tovar had entered into a written fee agreement expressly made for expert consultation with defendants.

[00:02:11] Speaker 04:
But he knew that they were going to call him as a witness.

[00:02:14] Speaker 04:
He was on their witness list.

[00:02:15] Speaker 02:
Yes, Your Honor.

[00:02:16] Speaker 04:
It was no surprise that Dr. Tovar... Both sides had him on their witness list.

[00:02:22] Speaker 02:
Exactly, Your Honor.

[00:02:24] Speaker 02:
And so our contention is not that

[00:02:28] Speaker 02:
Dr. Tovar's appearance was a surprise.

[00:02:31] Speaker 02:
Our contention is that the relationship, the financial relationship that had been going on for at least two years was not disclosed.

[00:02:42] Speaker 02:
And so that rendered the testimony at trial false and counsel's vouching for that testimony to the jury false as well.

[00:02:53] Speaker 04:
Let me ask you this.

[00:02:55] Speaker 04:
On this aspect of your claim, do you need to show some sort of prejudice or are you automatically entitled to a new trial?

[00:03:03] Speaker 04:
What's the test for evaluating your claim?

[00:03:08] Speaker 02:
Yes, Your Honor.

[00:03:09] Speaker 02:
For two of the three bases for a new trial, two of the three grounds, false evidence and discovery misconduct.

[00:03:17] Speaker 02:
the test from this court's opinion in the Jones case that we've repeatedly cited in our briefs, is that the failure to disclose prevented the plaintiffs from fully and fairly presenting their case.

[00:03:32] Speaker 02:
And it's not required to establish that the result would be different.

[00:03:37] Speaker 04:
So in other words, if Mr. Gallipoli, I think he was the trial lawyer.

[00:03:42] Speaker 02:
Yes, Your Honor.

[00:03:43] Speaker 04:
If he had known

[00:03:46] Speaker 04:
that the doctor had this agreement, he would have brought that out at trial?

[00:03:59] Speaker 04:
Or he would have brought in another expert or what?

[00:04:04] Speaker 02:
Two things, Your Honor.

[00:04:05] Speaker 02:
Yes, he would have brought that out at trial.

[00:04:08] Speaker 02:
But first of all, plaintiffs would have deposed Dr. Tovar before trial and explored the financial relationship and also explored the extent to which Dr. Tovar's opinions would go beyond his autopsy such that plaintiffs would not be blindsided by those new opinions at trial.

[00:04:31] Speaker 04:
I thought there were really only

[00:04:35] Speaker 04:
two theories about how the victim, the decedent, may have died.

[00:04:42] Speaker 04:
One was by asphyxiation, and one was by cardiac arrest.

[00:04:46] Speaker 04:
Is that right?

[00:04:47] Speaker 02:
Those were the competing theories at trial, yes, Your Honor.

[00:04:51] Speaker 02:
And crucially, the defendant's theory, as articulated by Dr. Tovar at trial, of cardiac arrest was not in his autopsy report.

[00:05:03] Speaker 02:
that simply does not appear there.

[00:05:05] Speaker 02:
And so that was a new opinion at trial.

[00:05:08] Speaker 02:
And that's one of the bases for our claim of discovery misconduct.

[00:05:14] Speaker 04:
Well, they had another doctor.

[00:05:16] Speaker 04:
The defense had another doctor, right?

[00:05:18] Speaker 02:
Correct, Your Honor.

[00:05:19] Speaker 04:
And he opined that it was by cardiac arrest.

[00:05:23] Speaker 02:
I'm not certain that he did, Your Honor.

[00:05:26] Speaker 02:
But the crucial point, I think, is that

[00:05:30] Speaker 02:
as defense counsel himself articulated in his opening statement and all throughout trial and in his closing argument, these were two hired guns, but Dr. Tovar stood above the fray.

[00:05:45] Speaker 02:
The jury could believe him particularly because he was completely independent in the words of defense counsel.

[00:05:53] Speaker 02:
And so that had a, we think,

[00:05:57] Speaker 02:
we submit dispositive effect on the jury's verdict.

[00:06:02] Speaker 00:
Let me ask you this, counsel.

[00:06:03] Speaker 00:
Why wasn't Dr. Tovar deposed given that he was on the witness list?

[00:06:09] Speaker 00:
Was it because you were under the, or Mr. Calippo was under the impression that he wasn't going to be an expert witness?

[00:06:19] Speaker 02:
No, Your Honor, he was not deposed because he was, he did the autopsy on Mr. Landeros and his autopsy report.

[00:06:27] Speaker 00:
Right, no, that's what I mean.

[00:06:29] Speaker 00:
The autopsy report did not pinpoint the cause of death that he testified to at the trial, right?

[00:06:37] Speaker 00:
So when you saw his name on the witness list, what did the plaintiff think he was going to testify to?

[00:06:42] Speaker 02:
to his autopsy report alone, your honor, because under federal rule 26A2, both paragraph B and C, if he were a retained expert, as it turned out that he was, and if he were going to give a new opinion.

[00:06:59] Speaker 00:
Right, the disclosure would have to be different.

[00:07:00] Speaker 00:
So from the plaintiff's perspective, he was not going to be the witness testifying to the cause of death at all.

[00:07:09] Speaker 02:
Correct, Your Honor, or at least his testimony would be confined to his autopsy report, which in plaintiff's counsel view was not harmful to plaintiff's case.

[00:07:21] Speaker 02:
And so that's why this is discovery misconduct, because as a retained expert who was going to give a new opinion, he would have had to been disclosed.

[00:07:33] Speaker 02:
Plaintiffs would have had the opportunity to depose him.

[00:07:36] Speaker 02:
to test those new opinions and to explore whatever financial relationship existed.

[00:07:45] Speaker 04:
Let me ask you this.

[00:07:47] Speaker 04:
I can't remember all these, I read all this stuff a while back, but what was the district court's, the essence of the district court's ruling denying the motion for a new trial?

[00:07:58] Speaker 02:
The essence of the district court's ruling was that the testimony was not false.

[00:08:07] Speaker 02:
And we submit with respect to the district court that that finding is clearly erroneous.

[00:08:13] Speaker 02:
And the clear error there vitiates any deference that this court might otherwise give to the district court's ruling.

[00:08:24] Speaker 02:
It simply defies credibility to look at the record, to look at the testimony

[00:08:32] Speaker 02:
And counsels vouching for that testimony and we summarized But what is it precisely was the false testimony?

[00:08:39] Speaker 01:
Is it the use of the word independent?

[00:08:43] Speaker 02:
Yes, your honor.

[00:08:43] Speaker 02:
That's that's one so we've cataloged those on page 11 of our opening brief So the testimony was dr. Tovar hasn't been hired by either side when in fact he was hired by defendants the testimony was the dr. Tovar is independent

[00:09:01] Speaker 02:
And then counsel doubled down on that in his closing argument to say that Dr. Tovar was completely independent.

[00:09:09] Speaker 01:
I guess independence seems a little subjective.

[00:09:12] Speaker 01:
Like, what does that exactly mean?

[00:09:14] Speaker 01:
I mean, it's not like he fed him the lines.

[00:09:17] Speaker 01:
You know, he used his independent judgment.

[00:09:19] Speaker 02:
Well, to go on, Your Honor, the testimony was Dr. Tovar is not affiliated with the defense.

[00:09:29] Speaker 02:
And that was the testimony at trial.

[00:09:32] Speaker 02:
And, of course, at the post-trial hearing, Dr. Tovar admitted that he was affiliated with the defense.

[00:09:39] Speaker 01:
And, you know, Dr. Tovar gets paid, even if he's not retained as a witness, he gets paid some money, over $300 per hour is paid to someone, either the county or to Dr. Tovar directly, correct?

[00:09:52] Speaker 02:
Crucially, Your Honor, if in the normal course,

[00:09:57] Speaker 02:
it would be paid to the County of Sacramento to reimburse the public agency for the time of its employee.

[00:10:03] Speaker 01:
So the theory is that now, because it's not going to the county, but it's going to Dr. Tovar, that it might shade his testimony in some way?

[00:10:12] Speaker 02:
Well, he's a retained expert, Your Honor.

[00:10:14] Speaker 02:
He's working for the defendants.

[00:10:17] Speaker 02:
And it's not to challenge the credibility of his medical testimony, but of course, that

[00:10:27] Speaker 02:
relationship would be explored by plaintiff's counsel on cross-examination in the normal course if plaintiffs had known of the undisclosed fact.

[00:10:39] Speaker 02:
And just to go on, again, additional testimony, Dr. Tovar lacked any affiliation with the Elk Grove Police Department, and of course he had an affiliation with defense counsel, and I see that I've- Yeah, I know you wanted to say five minutes.

[00:10:55] Speaker 00:
Thank you, Your Honor.

[00:11:07] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:11:10] Speaker 03:
Excuse me.

[00:11:11] Speaker 03:
Bruce Prate for the appellees.

[00:11:14] Speaker 03:
And I was trial counsel, if I can answer any of the Court's questions.

[00:11:20] Speaker 03:
Just to make it clear, I made sure that Dr. Tovar was, in fact, independent when he asked me during our initial phone calls, could he see the expert reports from either side?

[00:11:34] Speaker 03:
I said no.

[00:11:35] Speaker 03:
I want you to testify solely based on your autopsy with no outside influence.

[00:11:41] Speaker 03:
I called the County of Sacramento because I knew Dr. Tovar had performed the autopsy.

[00:11:47] Speaker 03:
Rather than deal with them, they referred me directly to Dr. Tovar.

[00:11:50] Speaker 03:
I had no idea there was any other alternative.

[00:11:53] Speaker 03:
When I called him, he said, you could either go through the county and pay $385 an hour, or I can do it on my own time at $400 an hour.

[00:12:01] Speaker 03:
I said, your choice.

[00:12:03] Speaker 03:
I had no other conversations with him other than to arrange for the various trial dates and his appearance.

[00:12:12] Speaker 03:
The interesting thing is plaintiffs' counsel knew from the very beginning at least Dr. Tovar would charge $315 an hour.

[00:12:19] Speaker 03:
They disclosed that in their own Rule 26 report.

[00:12:24] Speaker 03:
So to suggest that they had no idea he was being paid,

[00:12:28] Speaker 03:
Is erroneous.

[00:12:29] Speaker 00:
If they know that he was going to be paid in his personal capacity rather than payment being made to the county for his services.

[00:12:35] Speaker 00:
That's a pretty key distinction.

[00:12:38] Speaker 03:
It is.

[00:12:38] Speaker 03:
Had they called the county of Sacramento like I did?

[00:12:41] Speaker 03:
Did you tell him?

[00:12:43] Speaker 03:
No, I didn't tell him that.

[00:12:46] Speaker 03:
I didn't think that.

[00:12:47] Speaker 03:
I mean, they could ask.

[00:12:48] Speaker 03:
They could have deposed him and they could ask.

[00:12:51] Speaker 03:
They knew at trial, at least he was going to be paid.

[00:12:54] Speaker 03:
whether it's $315 an hour, $385 an hour, or $400 an hour.

[00:12:57] Speaker 04:
So you signed an agreement with him, correct, with the doctor?

[00:13:01] Speaker 03:
I did sign an agreement that, OK, we'll pay you your $400 an hour if you're called at trial.

[00:13:06] Speaker 03:
They represented in their trial, pre-trial conference order, they were going to call him as a witness.

[00:13:14] Speaker 03:
Literally, in the middle of trial, I asked, are you calling Dr. Tovar?

[00:13:19] Speaker 03:
We're not sure.

[00:13:20] Speaker 03:
The district judge, Judge Shub, said,

[00:13:23] Speaker 03:
All right, Mr. Prate, you'd better subpoena him.

[00:13:26] Speaker 03:
If they're not going to call him, you'd better get him under subpoena.

[00:13:29] Speaker 03:
We subpoenaed him.

[00:13:31] Speaker 03:
He appeared at trial.

[00:13:31] Speaker 01:
But wouldn't it, at that point, have been relevant to say that he's under a contract with you?

[00:13:38] Speaker 03:
Actually, I didn't consider it to be much of a contract.

[00:13:40] Speaker 03:
It's not like we retained him as an expert, provided him with materials.

[00:13:44] Speaker 03:
We provided him nothing.

[00:13:47] Speaker 03:
He had only his own materials.

[00:13:48] Speaker 04:
I said, you're the... But when did you learn that he was going to testify that the cause of death was by cardiac arrest?

[00:13:58] Speaker 03:
I learned, well, I knew from his autopsy report that there was nothing about asphyxia, no restrained asphyxia, nothing, which was their theory of the case.

[00:14:08] Speaker 04:
Right.

[00:14:08] Speaker 03:
He explained on cross-examination to plaintiff's counsel that that included, by definition, cardiac arrest.

[00:14:16] Speaker 03:
And what's interesting is their own retained expert agreed, both plaintiff's expert, defense expert, and Dr. Tovar agreed, that if we take law enforcement out of the equation, the decedent would have died from cardiac arrest based on the 1,500 nanograms per milliliter of methamphetamine.

[00:14:37] Speaker 03:
Take the police out.

[00:14:38] Speaker 03:
Their own expert, Dr. O'Hallerhan, agreed with Dr. Tovar and Dr. Chan, our expert.

[00:14:44] Speaker 01:
Council, wasn't your opening remarks kind of like the most damning thing, though?

[00:14:48] Speaker 01:
You told him what to look at.

[00:14:51] Speaker 01:
You told Dr. Tovar what to look at.

[00:14:52] Speaker 01:
He wanted to look at other reports, and you said, no, look at only this.

[00:14:57] Speaker 01:
That just kind of takes away his total independence.

[00:15:02] Speaker 03:
I believe it reinforces his independence.

[00:15:04] Speaker 01:
But he said he wanted to look at the certain evidence and you said, no, look at only your report.

[00:15:09] Speaker 01:
So that dictates what he has to do.

[00:15:12] Speaker 03:
Right.

[00:15:12] Speaker 03:
I wanted to ensure that he didn't see plaintiffs expert or defense expert.

[00:15:17] Speaker 03:
I want you, Dr. Tovar, the forensic pathologist, to work solely from your own evidence, what you contemporaneously observed.

[00:15:25] Speaker 01:
But do you see the problem that you're directing him of what he needs to look at?

[00:15:28] Speaker 01:
That shows a lack of independence.

[00:15:31] Speaker 03:
But shouldn't I be doing that, keeping him from being influenced by either side?

[00:15:35] Speaker 01:
Well, if he wants to be influenced by either side, it's his right as an independent witness.

[00:15:39] Speaker 01:
It just shows a lack of independence to me.

[00:15:41] Speaker 03:
In my opinion, at the time, I believed that I was maintaining his independence by keeping him from being influenced by either retained experts

[00:15:50] Speaker 03:
Doctor, you testify only to your own observations, to your own findings based on your own report.

[00:15:55] Speaker 01:
So, I mean, are you standing behind the statement that he has a lack of affiliation with the defendants?

[00:16:03] Speaker 03:
Yes, he has a lack of affiliation the same as anyone else who had called him as a witness.

[00:16:09] Speaker 03:
They would have been required to pay.

[00:16:10] Speaker 01:
You had a contract with him.

[00:16:11] Speaker 01:
Doesn't that require, doesn't that suggest some sort of affiliation?

[00:16:15] Speaker 03:
Well, and I guess the key is,

[00:16:17] Speaker 03:
Why didn't they just ask him?

[00:16:18] Speaker 03:
I mean, I've never, and I know Mr. Guglielmo.

[00:16:20] Speaker 01:
No, but I get it.

[00:16:21] Speaker 01:
But that statement that there's a lack of affiliation, do you think that's an accurate statement?

[00:16:28] Speaker 03:
A lack of affiliation only in the sense that he's testifying as an independent treating physician.

[00:16:37] Speaker 03:
who's being called by one side or the other.

[00:16:39] Speaker 00:
Well, I think the part of the issue here, counsel, and as I understand plaintiff's argument, setting aside whether he's truly independent or not,

[00:16:51] Speaker 00:
had they known of the true facts.

[00:16:54] Speaker 00:
You could still argue to the jury that he's truly independent because he did the autopsy, but they also could cross-examine that no, what he really is is a hired gun, he's being paid in his personal capacity, he's not

[00:17:07] Speaker 00:
testifying in his capacity as a county employee, and therefore he's biased.

[00:17:14] Speaker 00:
He only reviewed selected materials that you chose.

[00:17:18] Speaker 00:
So it really deprived them of a pretty potentially powerful line of cross-examination that may have influenced the jury's verdict.

[00:17:28] Speaker 00:
So how do you respond to that?

[00:17:30] Speaker 03:
They minimally knew that he was charging at least $315 an hour, and the standard is through due diligence.

[00:17:37] Speaker 03:
Did we withhold anything that they, through due diligence, would have known?

[00:17:42] Speaker 03:
All they had to do was exactly what I did.

[00:17:44] Speaker 03:
I didn't know Dr. Tovar.

[00:17:46] Speaker 03:
Then, apparently, I had appeared at a deposition four years prior that I had actually, plaintiff's counsel was present as well, where he was paid $500 an hour, by the way, in that case.

[00:17:56] Speaker 03:
I didn't know Dr. Tovar.

[00:17:58] Speaker 03:
I called the county of Sacramento.

[00:18:01] Speaker 03:
I need Dr. Tovar as a potential witness.

[00:18:03] Speaker 03:
They said, here's his number, call him up.

[00:18:06] Speaker 00:
And then you hired him.

[00:18:08] Speaker 03:
I agreed to pay whatever fee would be required to retain him.

[00:18:11] Speaker 00:
That's hiring him.

[00:18:13] Speaker 03:
Same as they would have done had they taken his deposition, had they called him.

[00:18:17] Speaker 04:
If you subpoena somebody, don't you just have to pay him a witness fee?

[00:18:21] Speaker 03:
Well, yes.

[00:18:22] Speaker 04:
The federal subpoena fee?

[00:18:24] Speaker 03:
No.

[00:18:25] Speaker 03:
And we cite case law that says a doctor is not required to be paid only the $60 an hour for his valuable time.

[00:18:31] Speaker 03:
He's entitled to

[00:18:33] Speaker 03:
reasonable fees.

[00:18:35] Speaker 03:
And I would not expect to pay a doctor $60 for an appearance at trial.

[00:18:40] Speaker 04:
I don't think a county employee is entitled.

[00:18:44] Speaker 04:
Well, he is.

[00:18:44] Speaker 04:
I mean, the county may be entitled to some reimbursement for the cost of losing his services while he's down in court.

[00:18:51] Speaker 03:
But they would have known that with a simple phone call.

[00:18:55] Speaker 03:
He has a choice.

[00:18:56] Speaker 03:
It's not my choice.

[00:18:59] Speaker 03:
It's Dr. Tovar's choice whether to do this on county time or

[00:19:03] Speaker 03:
his own time.

[00:19:04] Speaker 03:
He elected to do it on his own time.

[00:19:06] Speaker 03:
And the trial court, the standard is abuse of discretion, of course, and they have to produce clear and convincing evidence that through due diligence, they would not have known about this purported relationship, which was nothing more than they would have done.

[00:19:21] Speaker 03:
And a simple question, and Mr. Gallippo is a very skilled trial attorney, are you being paid at least $315 an hour by the defense?

[00:19:29] Speaker 03:
They knew.

[00:19:30] Speaker 03:
He would have at least $315 an hour.

[00:19:33] Speaker 03:
Why not ask them?

[00:19:34] Speaker 03:
And then if they want to make the argument that, well, you're being paid by the county, of course, the same as he would have been paid by our side or anybody who called him.

[00:19:44] Speaker 03:
That's not false.

[00:19:47] Speaker 03:
You know, we're not required to disclose the fact that we've subpoenaed him and that we're paying his standard fee.

[00:19:56] Speaker 03:
That's a question that you either ask at a deposition or during trial.

[00:20:00] Speaker 03:
He testified entirely within his autopsy report.

[00:20:05] Speaker 03:
Never went outside of that because we made sure that he wouldn't.

[00:20:08] Speaker 03:
And I think what's key is the difference wouldn't have, it would have been no difference.

[00:20:14] Speaker 03:
One, because remember, their own expert agreed that if we take the law enforcement out of the equation, the decedent would have died of the same thing that Dr. Tovar testified to, that Dr. Chan testified to,

[00:20:27] Speaker 03:
and ultimately their own expertise.

[00:20:29] Speaker 01:
Can I ask, assuming that we think that there was false testimony here, what standard should we apply on whether or not a new trial is ordered?

[00:20:35] Speaker 01:
It looks like there's two standards, one seems a higher burden, one seems a lower burden.

[00:20:40] Speaker 03:
I think on the civil side, it's clear and convincing evidence, abuse of discretion.

[00:20:45] Speaker 01:
Yeah, but I thought the question is either whether or not there has to be prejudice or change the outcome, or is there the fair, fully unfair presentation of the case?

[00:20:55] Speaker 01:
Which standard should we apply?

[00:20:57] Speaker 03:
Well, I guess if we look at all of those, first to the first point, Your Honor, it would not have changed the outcome because the jury decided the issue of the reasonableness of force.

[00:21:07] Speaker 03:
They never got to the issue of causation, which is the whole point that they're raising, that causation was somehow put at issue here by this allegedly false testimony.

[00:21:19] Speaker 01:
If we apply the other standard, the fully and fair presentation of the case, do you still make that standard?

[00:21:26] Speaker 03:
Oh, absolutely.

[00:21:26] Speaker 03:
Remember, they knew he was being paid something, at least $315 an hour.

[00:21:31] Speaker 03:
Why not ask that and make your argument?

[00:21:35] Speaker 03:
And they never objected at any point during trial.

[00:21:39] Speaker 03:
They waived that.

[00:21:40] Speaker 03:
If they thought that he was somehow no longer testifying and consistent with his autopsy report, that he'd gone beyond that, then object.

[00:21:48] Speaker 03:
But they didn't.

[00:21:49] Speaker 04:
And so... Do the federal rules require that doctors be paid more than a regular witness?

[00:21:56] Speaker 03:
Well, Your Honor, there's a district court case that does say that out of Nevada that we cite in our brief, that says... But do the federal rules say that?

[00:22:04] Speaker 03:
No, the federal rules do not address that.

[00:22:06] Speaker 04:
I thought it was just he served somebody with his subpoena, they got to show up.

[00:22:09] Speaker 04:
They're entitled to their fee, but if they're a recipient witness, that's it.

[00:22:16] Speaker 04:
I think it's 40 bucks.

[00:22:18] Speaker 04:
It used to be 40 bucks or something.

[00:22:19] Speaker 03:
It may be 60, 40, whatever it is.

[00:22:22] Speaker 03:
But, you know, I wasn't about to tell Dr. Tovar, yes, we may need you to testify, and we're only going to give you $60 for your... Well, you know, that happened to me one time when I was a district judge.

[00:22:34] Speaker 04:
The expert refused to show up, and I sent the marshals to get the coroner.

[00:22:41] Speaker 03:
I wasn't going to go that far in this case, Your Honor.

[00:22:45] Speaker 03:
So I mean, it's a simple case of with due diligence, the same diligence we exercised, call the county.

[00:22:52] Speaker 03:
How do we get Dr. Tovar here?

[00:22:54] Speaker 03:
You either deal with the county.

[00:22:55] Speaker 03:
In fact, they didn't give me that option.

[00:22:57] Speaker 03:
They said, here's his number.

[00:22:58] Speaker 03:
Call him up.

[00:22:59] Speaker 03:
I called him up.

[00:23:00] Speaker 03:
He said, I'll do it on my own time.

[00:23:03] Speaker 03:
My fee is $400 an hour.

[00:23:05] Speaker 03:
Great.

[00:23:05] Speaker 03:
If we need you, we'll call you.

[00:23:07] Speaker 03:
And same thing, they would have

[00:23:09] Speaker 03:
understood through due diligence.

[00:23:11] Speaker 03:
There was no false testimony.

[00:23:13] Speaker 03:
He never testified that he didn't get paid.

[00:23:16] Speaker 03:
He was never asked.

[00:23:18] Speaker 03:
I mentioned he's independent, but ultimately he testified the same as the other two experts.

[00:23:26] Speaker 04:
When Gallippo said, we're not going to call him, the judge said, go serve him with a subpoena.

[00:23:34] Speaker 03:
Correct.

[00:23:34] Speaker 03:
And we did.

[00:23:36] Speaker 03:
Witness fee.

[00:23:38] Speaker 03:
Right.

[00:23:39] Speaker 03:
And I didn't give him a check at that point.

[00:23:42] Speaker 03:
I knew he was going to charge us $400 an hour.

[00:23:45] Speaker 03:
They knew they would charge us at least $315 an hour.

[00:23:48] Speaker 03:
And they never asked.

[00:23:50] Speaker 03:
And through due diligence, any trial attorney, and the court knows Mr. Gallippo's a very experienced trial attorney, you simply ask, are you being paid by the defense in this case?

[00:24:00] Speaker 03:
If so, how much?

[00:24:02] Speaker 03:
Strategically, I don't know why they didn't ask that question.

[00:24:05] Speaker 03:
But that doesn't rise to the level of clear and convincing evidence

[00:24:08] Speaker 03:
It would not have changed the outcome of the case, and they don't meet their burden of abuse of discretion by the district judge.

[00:24:17] Speaker 03:
Judge Shub found, you know, Dr. Tovar, your arrangements are a little questionable that you're doing this on the side, but that's not on the parties.

[00:24:26] Speaker 03:
That's on Dr. Tovar.

[00:24:28] Speaker 03:
So, if there's any other questions, we'll record.

[00:24:32] Speaker 03:
All right, thank you, Your Honor.

[00:24:42] Speaker 02:
I'll start with the standard of review.

[00:24:44] Speaker 02:
Clear and convincing evidence is not the standard.

[00:24:46] Speaker 02:
That doesn't appear in any of the cases.

[00:24:53] Speaker 02:
As the court has previously heard, for two of the three bases, it's not required to show that the outcome would be different.

[00:25:03] Speaker 02:
It's the fully and fairly presenting the case.

[00:25:06] Speaker 02:
And that's fully explored on pages 30 to 34 of our opening brief.

[00:25:12] Speaker 02:
To go to due diligence, as Mr. Gallipo declared under penalty of perjury, and that's on page 157 of the experts excerpts of record, he's been in at least 50 trials in which a physician testified in these circumstances, and he's never seen this arrangement.

[00:25:37] Speaker 02:
And so given that fact, given the fact that under the California government code, section 1126A, this arrangement is likely illegal, plaintiffs had no reason to suspect this.

[00:25:52] Speaker 02:
And it would have been a completely different case if the county of Sacramento were being paid.

[00:25:58] Speaker 02:
If that would have been a reimbursement to a public agency, it would have

[00:26:04] Speaker 02:
brought no comment by plaintiff's counsel and the jury, it would have not been an interesting fact to the jury, but.

[00:26:12] Speaker 00:
Counsel, let me clarify something because counsel on the other side said that the plaintiffs, Mr. Calipo knew that Dr. Tovar would at least be paid $315 and suggesting that's why he was never asked on cross-examination.

[00:26:29] Speaker 00:
about the payment.

[00:26:30] Speaker 00:
As I understand the record from your expert disclosure, you knew that the county would be paid $315.

[00:26:38] Speaker 00:
Is that right?

[00:26:40] Speaker 02:
Exactly, Your Honor.

[00:26:41] Speaker 02:
We think that's a crucial distinction.

[00:26:43] Speaker 02:
Again, it's not the fact of payment.

[00:26:47] Speaker 02:
If the defendants had paid the County of Sacramento to reimburse it for its employees' time, we wouldn't be here because that would be a totally above board relationship

[00:26:59] Speaker 02:
That would not be an interesting fact to the jury.

[00:27:02] Speaker 02:
But in fact, defendants had a fee agreement two years before trial.

[00:27:08] Speaker 02:
That's a one-page agreement, page 47 of the excerpts of record.

[00:27:14] Speaker 02:
And that agreement was expressly for expert consultation.

[00:27:20] Speaker 02:
And as Judge Bumate mentioned, Dr. Tovar relied on what defendants' counsel gave him.

[00:27:29] Speaker 02:
And that's admitted on pages six and seven of the answering brief.

[00:27:33] Speaker 02:
Just like any other expert, this expert took, reviewed the materials that his employing lawyer gave him.

[00:27:43] Speaker 02:
And that's not to question the scientific integrity of his testimony.

[00:27:47] Speaker 02:
Like every other expert,

[00:27:52] Speaker 02:
He was paid by one party, and as long as that's fully and fairly disclosed to the jury, that's above board.

[00:27:59] Speaker 02:
So it's not wrong to pay an expert.

[00:28:03] Speaker 02:
It's wrong to pay an expert and tell the jury that he's not being paid, to tell the jury that he's not hired.

[00:28:12] Speaker 01:
And so... I was just looking at the statements again.

[00:28:14] Speaker 01:
So the question, I wanted to determine what's on the false testimony party.

[00:28:19] Speaker 01:
So that question was asked, do you consider yourself independent and impartial?

[00:28:23] Speaker 01:
He says yes.

[00:28:25] Speaker 01:
That was basically his subjective view.

[00:28:27] Speaker 01:
So the real false question then is, you're not affiliated with the defense or the plaintiffs in this case, correct?

[00:28:33] Speaker 01:
And he says absolutely.

[00:28:34] Speaker 02:
Correct, Your Honor.

[00:28:35] Speaker 01:
I think that... That's the most false statement you think?

[00:28:38] Speaker 02:
Amplifies and

[00:28:41] Speaker 02:
intensifies the independence and impartiality testimony and again lacked any affiliation with the Elk Grove Police Department.

[00:28:54] Speaker 02:
Council's statement in closing that Dr. Tovar, the key witness in the case,

[00:29:00] Speaker 02:
is completely independent.

[00:29:02] Speaker 02:
All those together collectively show false testimony.

[00:29:05] Speaker 02:
And so for those reasons and those that we've expressed in our brief, we urge the court to reverse and order the granting of the new trial.

[00:29:15] Speaker 00:
All right.

[00:29:15] Speaker 00:
Thank you very much, counsel.

[00:29:17] Speaker 00:
Very helpful arguments this morning.

[00:29:19] Speaker 00:
The matter is submitted.