Falbo v. Parisi CA1/2

Filed 10/26/26 Falbo v. Parisi CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO TONY FALBO et al., Plaintiffs and Appellants, A170845 v. WILLIAM PARISI, (Sonoma County Super. Ct. No. SCV264737) Defendant and Respondent. Tony Falbo and Corina Falbo (the Falbos) brought this wrongful death suit against William Parisi (Parisi), who was turning right at an intersection in a truck when he hit and killed their 20-year-old daughter on her bicycle. After a lengthy trial, a jury found Parisi was not negligent, and the Falbos appeal the judgment entered in his favor. We affirm. BACKGROUND The undisputed facts are relatively few. On October 30, 2018, at about 12:20 p.m., 20-year-old Sidney Falbo (Sidney) was riding her bicycle on the western sidewalk of Stony Point Road in Santa Rosa, California on her way to attend junior college classes. She was headed north toward an intersection with a highway offramp, where there were signaled crosswalks running north/south and east/west across Stony Point Road. Parisi, driving a commercial dump truck, had exited the highway and was stopped on the 1 offramp facing eastbound at the intersection, waiting at a stoplight to turn right (i.e., southbound) onto Stony Point Road. When the light turned green, he scanned for hazards, pulled into the intersection and began turning right. Moments later, Parisi’s truck ran over Sidney in the east/west crosswalk on Stony Point Road. Parisi stopped the truck and found her body with no pulse, pinned under his rear tires between the rear axles of his truck. He got back into the truck, released the brake and let the truck roll back off her body. He had not seen her. He was not under the influence of any substances and had not been using his cell phone. After the accident, he moved the damaged bicycle out of the path of traffic. The accident scene was scattered with debris including a shoe, the bicycle seat, Sidney’s bag and her cell phone; and there were skid marks on the ground. As we will discuss, virtually everything else about the collision was disputed, including where Sidney was located when Parisi began his turn; which direction she was facing; whether she stopped at all before crossing the street; and Parisi’s precise body movements as he scanned his surroundings before and during the turn. The case proceeded to a jury trial lasting almost four weeks, not including voir dire and jury selection. Seven witnesses testified regarding liability. Four were percipient witnesses: Parisi, who testified for five days; another motorist, John Fortunati, who saw Sidney riding her bicycle past him and heading in the direction of the intersection moments before the accident; Fortunati’s wife Belinda who was with him in their car but saw only the collision’s aftermath; and a motorist named Gloria Hernandez, the only person who witnessed the actual collision. Hernandez testified that she saw Sidney before the collision stopped on the sidewalk at some distance from the yellow pad at the entrance to the crosswalk, not lined up in a position ready 2 to cross the street. Hernandez testified that Parisi and Sidney moved at the same time but then testified the truck driver “moved first to turn, and when he was turning she took off,” “when she took off, he was already turning” and “she took off when he was doing the turn.” Construing the evidence in the light most favorable to the judgment (see Eng v. Brown (2018) 21 Cal.App.5th 675, 683; Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1), Hernandez’s testimony indicates that Parisi had already begun to turn when Sidney “took off” into the intersection. In addition to these four percipient witnesses, the jury heard from a police investigator, Officer Ken Ferrigno; an accident reconstruction expert proffered by the defense, Dr. Eric Rossetter, who proffered two possible scenarios as to how Sidney entered the crosswalk and was killed, one in which she stopped before entering the intersection and the other in which she did not. He opined that Parisi could not have avoided hitting her in either scenario. In addition, the jury heard testimony by a trucking safety expert, Michael Ashley, who testified (in videotaped deposition testimony presented during the Falbos’ case-in-chief) about blind spots created by stickers on the windows and by part of the truck’s frame (its A-pillar, which runs at the windshield from the roof of the cab down to the hood). He opined that those items would require a driver to rock his body forward or backward to see around the blind spots and make a safe turn. We will discuss the trial evidence further as relevant below. The jury deliberated for about three-and-a-half hours, asked no questions and returned a verdict finding that Parisi was not negligent. Given that finding, the jury did not decide remaining liability issues, including whether Parisi’s negligence had been a substantial factor in causing Sidney’s 3 death, or questions relating to whether Sidney herself had been comparatively negligent. DISCUSSION I. Dr. Eric Rossetter’s Expert Opinions and Animations The Falbos assert the trial court abused its discretion in permitting defense accident reconstruction expert Dr. Eric Rossetter to testify because his opinions were speculative, lacked foundation and do not meet the standard for admissible expert testimony. Relatedly, they contend the court erred in admitting into evidence video animations depicting Dr. Rossetter’s accident reconstruction scenarios. Their briefing somewhat conflates these two matters, but we will address each separately and begin with Dr. Rossetter’s testimony. A. Legal Principles and Standard of Review Trial courts have a duty to act as a gatekeeper to exclude speculative expert testimony. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 753 (Sargon).) The sources of this duty are Evidence Code sections 801 and 802. (See Sargon, at pp. 769-771.) Evidence Code section 801 “governs judicial review of the type of matter” upon which the opinion is based. (Sargon, supra, 55 Cal.4th at p. 771.) It limits expert testimony to a subject “that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact” and is “[b]ased on matter . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” (Evid. Code, § 801, subds. (a) & (b); see also Sargon, at pp. 769-770.) Under this provision, the trial court may determine whether the matter is of a type on which an expert may reasonably rely and whether 4 the matter relied on reasonably supports the particular opinion offered. (See Sargon, at p. 770.) “ ‘[T]he expert’s opinion may not be based “on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors.” ’ ” (Ibid.) “ ‘[T]he matter relied on must provide a reasonable basis for the particular opinion offered, and . . . an expert opinion based on speculation or conjecture is inadmissible.’ ” (Ibid.) Evidence Code section 802 “ ‘governs judicial review of the reasons for the opinion.’ ” (Sargon, supra, 55 Cal.4th at p. 771.) It provides that “[a] witness testifying in the form of an opinion may state . . . the reasons for his opinion and the matter . . . upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion” and that “[t]he court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.” (Evid. Code, § 802.) “This means that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning. ‘A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.’ ” (Sargon, at p. 771.) Taken together, these provisions require the trial court to “act[] as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” (Sargon, supra, 55 Cal.4th at pp. 771-772.) But the court’s gatekeeping role is circumscribed. (Sargon, supra, 55 Cal.4th at p. 772.) The Supreme Court has warned that trial courts “must . . . be cautious in excluding expert testimony.” (Ibid.) The court’s “focus ‘must be solely on principles and methodology, not on the conclusions 5 they generate.’ ” (Ibid.) “The trial court’s preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion’s probative value or substitute its own opinion for the expert’s opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture.” (Ibid., italics added.) The court’s role is merely “ ‘to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ ” (Ibid.) As one court has explained, “the limited role of the evidentiary gatekeeper” under Sargon does not mean the trial court must ensure an expert’s opinion is entirely free of analytical gaps. (Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 679.) “[I]n many cases where the available scientific evidence is limited or inconclusive, there will inevitably be some analytical gap between the underlying data and the expert’s ultimate . . . opinion. But Sargon should not be construed so broadly that the gatekeeper effectively supplants both the expert’s reasonable scientific judgment and the jury’s role.” (Ibid.) “In keeping the gate, it is not the trial court’s proper function to second-guess the judgment of a qualified expert who has provided a reasonable scientific explanation for his conclusions and used a scientifically accepted methodology for reaching them based on the available data, even if the data itself is inconclusive.” (Ibid.) This is equally true of expert opinions that reconstruct past events. Such opinions, including crime scene and accident reconstructions, are a common and proper subject of expert testimony even though they entail an 6 element of inherent uncertainty. As we explained in Osaze v. Aparicio-Gee (Sept. 29, 2026, A173403) __Cal.App.5th __ [2026 WL 2921395, at *12] (Osaze)), “it is not uncommon for accidents to happen without an eyewitness seeing them and injuries to occur without known or definitive causation, [and] [t]here are numerous cases in which causation has been disputed and biomechanical testimony employed to aid juries in deciding whether or how an accident caused injury.” (Ibid. & fn. 9.) “Fifty years ago, the court in one such case stated, ‘The object of accident reconstruction is to reach satisfactory—not infallible—conclusions as to the operational factors and dynamic situation contributing to the collision. It is as impossible to reconstruct an accident with absolute accuracy as for a witness to relate precisely what occurred. Nevertheless, expert reconstruction often is more accurate than statements of witnesses.’ [Citation.] That other factors may account for an accident is ‘relevant to the weight of an expert’s opinion rather than its admissibility if a proper foundation has been laid.’ ” (Id. __ Cal.App.5th__ [2026 WL 2921395, at *13].) As many cases reflect, trial courts do not abuse their discretion in admitting expert opinions reconstructing past events as long as the expert is qualified and the opinion is based on an adequate evidentiary foundation, accepted methods and reasonable logic.1 1 See People v. Morales (2020) 10 Cal.5th 76, 100-101 (Morales) [despite several analytical weaknesses, no error to admit expert crime scene reconstruction testimony about sequence of multiple homicides where “at least some evidence supported his conclusions”; fact that expert disagreed with several coroners, did not view bodies, conducted tests without actual homicide weapons and did not review any physical evidence “go to the weight to be given the evidence, not its admissibility” and “[g]iven his qualifications, he was permitted to interpret this evidence as he did”]; People v. Nelson (2016) 1 Cal.5th 513, 537 [upholding admission of expert testimony 7  Furthermore, “[t]he reasonableness of an expert’s reliance is a question of degree, and may well vary with the circumstances. Where . . . there is little or no direct evidence upon which the expert can base an opinion, the expert may have to turn to forms of circumstantial evidence on which he might not otherwise rely. In such circumstances, the necessity for the information dictates that courts accord to experts somewhat greater latitude in sources of information than might otherwise be the case.” (Buckwalter v. Airline Training Center (1982) 134 Cal.App.3d 547, 553-554.) We review the trial court’s ruling excluding or admitting expert testimony for abuse of discretion. (Sargon, supra, 55 Cal.4th at p. 773.) A ruling constitutes an abuse of discretion only if it is “ ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” (Ibid.) “The standard is a deferential one, and an appellate court may not substitute its discretion for that of the trial court, even if it disagrees.” (San Francisco Print Media Co. v. The Hearst Corp. (2020) 44 Cal.App.5th 952, 962 (San Francisco Print Media Co.).) Further, we do not independently assess whether the trial court’s ruling withstands scrutiny under this standard of review, judged by the applicable legal principles. Rather, consistent with the reconstructing sequence of shootings; “questions regarding the validity or the credibility of an expert’s knowledge are matters for the jury to decide [citation] but do not provide a basis for excluding the expert’s testimony in the first instance”]; People v. Robinson (2005) 37 Cal.4th 592, 631-632 [expert testimony concerning likely body positions of shooter and victim supported by adequate foundation where expert testified other positions would have been more awkward]; Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 274-275 (Box) [affirming admission of accident reconstruction opinion]; see also, e.g., Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391, 1404-1406, 1409 [defense verdict in wrongful death case involving collision between bicyclist and pickup truck held supported by, inter alia, defense accident reconstruction expert testimony].) 8 presumption we start with in every appeal that the trial court’s ruling is correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), “[t]he appellant has the burden on appeal to show an abuse of discretion.” (San Francisco Print Media Co. at p. 963.) B. Dr. Rosseter’s Testimony and Opinions Before permitting Dr. Rossetter to testify, the court held a hearing out of the jury’s presence under Evidence Code section 402 at which Dr. Rosseter described the evidence on which he relied and his methodology and set forth his conclusions. Following the hearing, the court permitted him to testify and, after voir dire, qualified him as an expert in the field of accident reconstruction. The Falbos do not challenge his expert qualifications on appeal. Testifying before the jury, Dr. Rossetter elaborated on the matters he had discussed at the hearing.2 He explained that he reviewed and considered physical evidence from the accident scene as documented in post-collision photographs, body-camera recordings and a laser scan of the accident scene taken by police (a FARO scan). A three-dimensional model created from the scan, photographs, the traffic collision report and body camera footage created an accurate diagram of the scene that reflected the locations of various objects and laid out the pertinent physical evidence he relied on for the accident reconstruction. This included some marks on the crosswalk, a tire friction mark on the roadway, circular imprints on the ground, a purse, a bicycle seat and “the rest positions” of the truck. The items were all depicted to scale on the diagram, and there was a bar depicting the scale in feet. The 2The parties focus principally on his trial testimony rather than his testimony at the 402 hearing. 9 model contained the physical evidence Dr. Rossetter relied on. There were also the bicycle’s measurements and the truck’s dimensions that he considered, which he derived from the laser scan. In addition, Dr. Rossetter reviewed the traffic collision report, deposition testimony of the parties and witnesses, and photographs of the truck’s exterior and interior taken during the police’s mechanical inspection of the truck after the police had taken possession of it. In addition, his office performed its own laser scan of the intersection, and, using Google Earth, he measured the distance between the accident site and the location where John Fortunati had seen Sidney ride past him moments before. He also consulted published scientific literature relating to the motion of trucks and bicycles, the titles of which he identified for the jury. Dr. Rosseter testified that in his opinion, the impact occurred just forward of the truck’s rear tires, and that the truck had already begun its turn and was “well through” the turn before the bicycle entered the crosswalk. He determined that the point of impact was approximately in the middle of the cross-walk (widthwise), about five to seven feet from either edge. He testified, based on physical evidence, that the bicycle traveled underneath the body of the truck in a space just forward of the right rear tires and was run over by the truck’s left side rear tires (i.e., the driver’s side). And he testified that in his opinion, Sidney “ha[d] to be riding at some speed as opposed to walking or being at a very low speed,” or else she would have been run over by the right side tires instead. His analysis of the truck’s movements worked backwards from the point at which the truck came to rest and was based on physical evidence including the skid marks found at the scene. Because there was no evidence 10 of tire friction marks on the curb, and no debris or friction marks on the yellow pad of the sidewalk, he concluded that the truck did not drive over the curb but turned with some distance between the tires and the curb. He calculated Sidney’s path of travel working backwards from the point of impact with the rear tires, based on data concerning acceleration speeds and a reasonable speed of bicycle travel. He determined two possible scenarios for her path of travel, both of which are at issue on appeal. In the first scenario, Sidney was stopped on her bicycle near the push button for the crosswalk and then accelerated into the crosswalk and the truck. Based on scientific data, he assumed her acceleration rate was 0.13 G’s. As we will discuss below, his determination of the location where she stopped and the direction in which she faced was based on the testimony of eyewitness Gloria Hernandez, who testified she saw Sidney stopped near the intersection before the collision. Dr. Rossetter’s second scenario posited that Sidney was riding northbound on the sidewalk, slowed down to make a right turn into the crosswalk but did not stop before turning into the crosswalk. He acknowledged that Hernandez testified she saw Sidney stopped before the collision. However, in his view there was other evidence suggesting she did not stop. He based this second scenario in part on the testimony of Parisi, who never saw Sidney at the intersection before the collision. He also based it on Fortunato’s testimony that when Sidney passed by him heading north before the collision as he was waiting to exit a shopping mall and turn left onto Stony Point Road, she was riding slowly, and that about 45 seconds elapsed between the time he was stopped at the mall exit, turned left and began driving and then heard his wife scream upon seeing the accident scene. Based on Fortunati’s account, Dr. Rossetter estimated Sidney was riding 11 down the sidewalk at a relatively low speed of seven miles per hour and then slowed down to five miles an hour through the right-hand turn into the crosswalk until the point of impact. During the Evidence Code section 402 hearing held outside the jury’s presence, he elaborated in somewhat greater detail that the distance between the shopping mall exit and the intersection is approximately 388 feet, and “[s]o at low bicycle speeds, which is also consistent with [Fortunati’s] testimony, that would take approximately 40 seconds.” Given that timing, the distance, and the fact that Sidney would have had to have been riding at “some speed” when the collision happened in order to have been hit by the rear tires on the driver’s side rather than the passenger side, he concluded it was possible she hadn’t stopped before turning. Based on his calculations in this second scenario, the truck had already been moving for about four to five seconds and had traveled approximately 22 feet at the time Sidney began turning right. “The bike starts the turn just before the five-second mark.” About 2.8 seconds later, the bicycle and truck collided, with Sidney having ridden about 21 feet into the road.3 He testified that the evidence his second scenario was based on was “the evidence that gives us the turn of the truck” as well as the testimony of Fortunati and Parisi. Based on the physical data and these assumed speeds and acceleration rates, Dr. Rossetter then used a computer modeling program called 3D Studio Max to generate visual animations of Sidney’s path of travel that depict “in real time . . . where the bike is and where the truck is.” He also utilized a 3 He also testified the impact happened 2.2 seconds after she turned into the crosswalk. 12 simulation program called Virtual Crash. He testified both programs are commonly used in his industry. He also validated the results by doing separate calculations of time and travel distances to make sure the visual animations matched his calculations. Dr. Rossetter opined than in neither scenario could Parisi have stopped in time to avoid the collision. His opinions were based on an assumption about the time it takes someone to respond to an unexpected hazard, called perception-reaction time. The typical figure used in the accident reconstruction industry is 1.5 seconds. Based on that figure, he calculated in the first scenario that the point at which the truck could have avoided the collision was up until four seconds after the truck started moving and the bicyclist’s time was “five seconds after the truck’s movement.” At four seconds after it began moving, the truck would have been about 18 feet through the turn and about 36 feet from the point of impact, traveling about six miles an hour. At that point, the left front corner of the truck was at the crosswalk line. But at that point, in his opinion, the bicycle had not yet begun turning toward the cross-walk. He testified that five seconds into the turn, the truck could have seen the bicycle (“there is something to react to”) but could not have avoided the impact. He testified that had the bicyclist been looking at the truck at the point five seconds after the truck began moving, she would have had enough time to see, react, stop and avoid the collision. In the second scenario, the truck could not have stopped in time to avoid the impact at five seconds, either. But in that scenario too, had the bicyclist been looking at the truck five seconds after the truck began moving, she would have had enough time to avoid the collision. Had the bicyclist seen 13 the truck at the point six seconds after it started moving , there would not have been enough time to avoid impact which was only 1.2 seconds away. On cross-examination, Dr. Rossetter acknowledged that he could not say that either scenario more likely than not was what happened. But he testified the two scenarios “bookends the possibilities” and that no other possibilities “would affect the timing.” They “book-end[] what occurred,” he testified. Or, as he put it during the section 402 hearing, “in the grand scheme or things from what we know in this case, there are really two [possibilities], which is, she doesn’t stop or she stops.” Dr. Rossetter was cross-examined extensively about the bases for his opinions. Without being exhaustive, it touched on matters such as the data concerning trucks he relied on in forming his opinions, data he relied on concerning bicycles, tire friction marks, deceleration rates, coefficients of friction and other subjects. He was also cross-examined about things he did not do, such as personally inspect either the truck or the bicycle, sit in the truck to check its blind spots, measure Parisi’s eye height, or ascertain whether the truck had an electronic data recorder to inspect. He also was cross-examined extensively about whether his opinions were inconsistent with the account of eyewitness Hernandez, a subject we address further below. C. Analysis Judged by the above principles, the trial court did not abuse its discretion in admitting Dr. Rossetter’s testimony about his two alternative accident reconstruction scenarios. His opinions were neither “based on matter of a type on which an expert may not reasonably rely,” “based on reasons unsupported by the material on which [he] . . . relie[d],” nor “speculative.” (Sargon, supra, 55 Cal.4th at pp. 771-772.) As Parisi argues, 14 Dr. Rossetter explained his methodology and had an adequate foundation to opine on the matters he did based on his evaluation of extensive documentation of the physical evidence of the accident scene, as well as data from scientific literature that he utilized in the exercise of his professional judgment. Parisi cites authority in which the admission of accident reconstruction testimony was upheld under similar circumstances. (See Box, supra, 57 Cal.App.3d at p. 275 [no error to admit expert testimony offered to prove motorcycle was on a straight course before collision, not turning right, where expert based his opinion on distance motorcycle traveled after collision, point of rest of motorcyclist’s body, type and location of damage to other vehicle, examination of same make and model of motorcycle and inspection of accident scene].) The Falbos do not address this authority. We agree with Parisi that the Falbos’ criticisms of Dr. Rossetter’s opinions at most go to the weight of his testimony and were matters for the jury to evaluate but do not affect the admissibility of his testimony. They contend, first, that the court abused its discretion in allowing Dr. Rossetter to testify because he could not say that either of his two scenarios was more likely than not what happened, and suggesting “possibilities” does not meet the standard for expert opinion. They assert that reversal is compelled on this ground under Waller v. FCA US LLC (2020) 48 Cal.App.5th 888 (Waller). We do not agree. Waller was a consumer protection action involving a defective truck that experienced intermittent losses of power. The trial court excluded the opinion of an expert proffered by the plaintiff that a possible, but not probable, cause of the power loss was a faulty fuel pump relay, on the ground that the expert’s testimony would not aid the jury. (Waller, supra, 48 Cal.App.5th at p. 895.) The expert was, however, permitted to testify 15 about another possible cause, which was a software problem that interfered with the radiator cooling fan’s operation. (See id. at pp. 891, 896.) The appellate court held the trial court did not abuse its discretion in excluding the expert’s opinion about the fuel pump relay. It articulated two reasons. First, it held the trial court could reasonably conclude the expert’s opinion would not “assist the trier of fact” (Evid. Code, § 801, subd. (a)). (Waller, supra, 48 Cal.App.5th at p. 895.) Quoting authority that addresses the standard for proving causation in a personal injury case (see Jones v. Ortho Pharma. Corp. (1985) 163 Cal.App.3d 396, 401, 404 [affirming nonsuit for defense]), Waller reasoned, “ ‘[t]here can be many possible “causes,” indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.’ ” (Waller, at p. 895, quoting Jones, at p. 403.) Because the expert’s opinion would not support a finding the fuel pump relay caused the loss of power, Waller explained, it was properly excluded. (Waller, at p. 895.) Second, Waller reasoned that the expert’s opinion about the fuel pump relay as a possible cause was not supported by any “rational explanation” (specifically, as to why the problems persisted after a repair bypassed the fuel pump relay) (see Waller, supra, 48 Cal.App.5th at pp. 890, 895-896), but instead just rested on “circular reasoning” (id. at p. 896). Waller does not compel reversal. First, as Parisi asserts, Dr. Rossetter’s ultimate opinion was that it was more likely than not that the accident happened in only one of two ways, neither more likely than the other, but in neither could Parisi have avoided the collision. Unlike in 16 Waller, he was not opining on one of an infinite number of possible scenarios; he rendered an opinion that ruled out any other possibilities, based on his analysis of the physical evidence, timing and witness testimony. Unlike in Waller, such an opinion could be helpful to the jury, and the Falbos do not contend otherwise.4 In parsing the two scenarios separately and attacking them both individually, the Falbos ignore the overall context and purpose for which they were offered. Second, Waller involved an expert for the plaintiff, i.e., the party who bore the burden of proof to establish the elements of his claim. Dr. Rossetter, though, was an expert for the defense. Under the instructions, the Falbos had the burden of proving Parisi was negligent; Paris was not required to prove he was not negligent. The Falbos cite no authority that a defense expert is precluded from offering opinions about possibilities. Furthermore, we see nothing categorically improper for a defendant to introduce evidence that may create doubt in a jury’s mind about whether the plaintiff has proved his or her liability theory by a preponderance of the evidence, even if the defense evidence might not by itself conclusively disprove an element of the plaintiff’s cause of action.5 4 The jury was instructed that “[n]egligence is the failure to use reasonable care to prevent harm to one’s self or to others. A person can be negligent by acting or by failing to act. A person is negligent if that person does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.” 5 Levin v. United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, cited by the Falbos, does not support the Falbos’ contention that the burden of persuasion somehow shifted to Parisi to disprove his own negligence. It recites the principle that, “In a civil action for false arrest, once a plaintiff establishes an arrest without a warrant, followed by imprisonment and 17  Next, the Falbos assert the court abused its discretion in admitting Dr. Rossetter’s testimony because his two accident scenarios were speculative. They rely principally on Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382 (Solis), a pre-Sargon case that held that a trial court prejudicially erred by allowing an accident reconstruction expert for the defense to proffer an opinion that a pedestrian was not in the crosswalk at the time she was struck by a bus, because the opinion lacked an adequate foundation. (Solis, at pp. 384, 387, 389.) The appellate court noted that “[m]any decisions have excluded such expert testimony attempting to work backward from the point of rest, where under the circumstances of the case too many variables were involved, so as to make the opinion based primarily upon conjecture and speculation.” (Id. at p. 389.) Here again, Solis is distinguishable. In that case, the expert’s opinion was based on several factors that were “variable and uncertain.” (Solis, supra, 105 Cal.App.3d at p. 390.) One was his determination of the bus’s speed which was a “crucial” aspect of his opinion: he analyzed the bus’s speed based on an experiment he conducted that “lacked adequate foundation and was not conducted under conditions substantially similar to those on the date of the accident.”6 (Solis, at p. 390.) The other problem was that his damages, the burden shifts to the defendant to show a justification for the arrest.” (Id. at p. 1018.) 6 In the experiment, the expert tracked the bus’s speed while the same bus driver who had been involved in the accident drove the bus through the intersection repeatedly. The experiment was conducted more than two years after the accident, under substantially different weather conditions (on a clear day with dry pavement, not heavy rain and wet pavement); there was no showing the bus was in the same mechanical condition as before and no showing the speedometer was accurate or that it could be accurately read (it displayed speeds in increments of five miles an hour); and the bus driver said 18 opinion was based on assumptions about where both the bus and the victim’s body came to rest, based on photographs of the bus and body after the accident. (Id. at pp. 389, 390.) But “after the actual impact the place the bus came to rest was still within the control of the driver to some extent” and there was evidence that the plaintiff had taken a few steps backwards before falling down. (Id. at p. 390.) The appellate court stated that, “[b]ecause of the relatively slow speed of the bus and the short distances involved in determining whether plaintiff was or was not within the crosswalk, small differences in the driver’s assumed perception time and reaction time crucially affected the conclusion.” (Ibid.) In other words, the appellate court seemed to suggest, since the expert’s starting assumption was not reliable neither was the reconstruction based upon it. Assuming without deciding that Solis’s analysis was appropriately deferential and remains good law following Sargon, it is distinguishable.7 The Falbos identify no similar problems with Dr. Rossetter’s analysis, including, crucially, the starting point for his analysis (i.e., his assessment of where the point of impact occurred). On the contrary, Dr. Rossetter testified that the point of impact occurred in the middle of the crosswalk, which he determined based on tire friction marks left on the ground that were caused by Sidney getting dragged after hitting the truck’s rear wheels, as corroborated by evidence of tire marks on her body. Nor were Dr. Rossetter’s the bus wasn’t able to reach the same speeds as before. (Solis, supra, 105 Cal.App.3d at pp. 386, 388-389, 390.) 7 Parisi also notes that Solis relies on dated precedent from the 1930’s, an era when “accident reconstruction was a relatively new field.” (Box, supra, 57 Cal.App.3d at p. 274; see Solis, supra, 105 Cal.App.3d at p. 389, citing Johnston v. Peairs (1931) 117 Cal.App. 208; Rudat v. Carithers (1934) 137 Cal.App. 92; Fishman v. Silva (1931) 116 Cal.App. 1.) 19 opinions based on faulty experiments conducted under dissimilar conditions, as in Solis. At most, Solis reflects a decision in which the appellate court concluded as a matter of law based on case-specific facts that the matter relied upon by an expert did not “provide a reasonable basis for the opinion” but instead was “based on a leap of logic or conjecture.” (Sargon, supra, 55 Cal.4th at p. 772.) The same is not true here.8 Finally, the Falbos assert Dr. Rossetter’s opinions about both scenarios were unsupported by the evidence. The problem with his scenario in which Sidney stopped before crossing the intersection, they argue, is that it “contradicts” the testimony of eyewitness Hernandez, in that they assert Hernandez testified Sidney was stopped facing east (i.e., in the direction of travel to cross the intersection) whereas Dr. Rossetter opined Sidney would have been stopped facing north (i.e., in the direction from which she had been traveling on the sidewalk, towards the intersection). 8 For the first time in their reply brief, the Falbos cite additional authorities. None reverses the admission of expert testimony in circumstances similar to those here. (See People v. McWhorter (2009) 47 Cal.4th 318, 361-363 [no error to exclude defense expert opinion that victims’ cause of death was possibly due to carbon monoxide leak from broken water heater vent where there was no evidence vent was broken, defense expert had not inspected water heater and “no facts were known about the model, age, size of the water heater”]; Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 374-375 [abuse of discretion to admit expert toxicology opinion resting on assumption for which there was no evidentiary basis and rested on circular reasoning]; People v. Wright (2012) 4 Cal.App.5th 537, 541- 542, 545-547 [expert opinion that sex offender suffered from mental disorder entailing sexual interest in pubescent children held purely “speculative” and not supported by the record because diagnosis depends on whether victims appear pubescent yet expert knew only