A newly enacted, under-the-radar statute in California could undermine efforts by employers to challenge the expert opinion testimony regarding alleged emotional distress offered by employees at trial. 

In many if not most employment trials, the employee’s lawyer offers the expert testimony of a psychiatrist/psychologist (paid for by the plaintiff) 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.  It is not unusual in such cases for the employer to offer an expert witness of its own who will challenge the conclusions reached by the employee’s expert witness.

Now, however, as a result of newly enacted California Evidence Code Section 801.1, a defense expert’s opinions related to alternative causes of the alleged emotional distress must be supported to a “reasonable medical probability,” which means that 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.  In short, this statute raises the bar for evidence offered by expert defense witnesses and may result in some courts barring their testimony altogether.

This new evidentiary standard could have substantial adverse consequences for employers in the typical case in which an employee is seeking sizeable emotional distress damages for alleged discrimination, harassment, retaliation or wrongful termination.  It is not unheard of for employees in such cases to recover very large (six and even seven-figure monetary awards for the emotional distress they claim to have suffered).  In such cases, the employer may seek to offer an expert psychiatrist/psychologist to testify about “other stressors” that may have caused the employee’s alleged emotional trauma (e.g., the recent death of a close family member, an unrelated medical condition, a drug or alcohol problem).  However, the new standard makes it more difficult for an employer to do so, 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 the new, heightened standard may be barred from testifying as to those opinions.

Like so many legislative initiatives, this statute was explicitly (and expeditiously!) drafted by the trial lawyers’ many friends and admirers in the California legislature in order to overrule a court decision that happened to be favorable to employers. In Kline v. Zimmer, Inc., 79 Cal. App. 5th 123 (2022), the court held that 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 (not the defense).  Under the new statute, however, both sides have the burden to provide expert testimony supported to a reasonable medical probability – not just the plaintiff.               

Going forward, employers who seek to present expert testimony regarding alternative causes of the employee’s alleged emotional distress should make sure that their expert’s testimony is supported to a “reasonable medical probability” or risk losing the opportunity to rebut the plaintiff’s expert witness’ testimony with their own defense expert witness testimony.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.