My understanding--I am not a California lawyer, your Honor--is that it's not necessary that I demonstrate she relied on this treatise at all. It is sufficient to show that she either referred to it, considered or relied upon it, upon such publication at arriving at her opinions. So I thought that my initial questions--
My questions when she answered initially on the issue of considered was adequate foundation. I didn't think I had to ask her whether she relied on it. In fact, it's sufficient even if she rejected large portions of it. The fact--one thing that's interesting here, your Honor, on direct examination, it was brought out by Mr. Clarke that she's read this thing many, many, many times herself. That was her testimony. Clearly if she's read it many, many, many times, she did consider it in arriving at opinions and decided those things. She's attempting--and which she remembers. And what bothers me now is that there's no question that this is the primary treatise by government agencies on this subject right now.
Well. You're saying used to be because there's not been an NRC committee meeting. But the scientific community hasn't even reached a conclusion yet, hasn't written a report. To the extent that she wants to say she doesn't agree with it, I have no problem with it. But to allow this witness to avoid cross-examination on the NRC report frankly is preventing the jury from hearing all the facts that are of concern to them, especially in light of your Honor's--especially in light of the fact that this witness said that she read this report many times on direct examination, which she said on cross-examination she read it and she's considered it in reaching her understanding of these various subjects, although--
Yes. My memory having been refreshed--and I'm not sure Mr. Neufeld was present--is, this very issue was litigated by this Court previously by formal motion. And evidence code 720, section 721 says counsel must rely--case law has made it clear the witness must have relied upon it for purposes of formation of the opinion. So she may have read it a hundred times. I may have read a book about being a lawyer a hundred times. That doesn't mean that it's something I rely upon, or as the case is here, the witness relies upon it in rendering an opinion. And until that foundation is present, the case law clearly calls this type of material hearsay.
California law says they have to have relied upon this in forming their opinion. That's what it says.
KEY QUOTEit's not necessary that I demonstrate she relied on this treatise at all. It is sufficient to show that she either referred to it, considered or relied upon it, upon such publication at arriving at her opinions.
Used to be.
She may have read it a hundred times. I may have read a book about being a lawyer a hundred times. That doesn't mean that it's something I rely upon.
California law says they have to have relied upon this in forming their opinion. That's what it says.