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Defense Expert Tips: Don’t Wait, Designate!

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Expert testimony is often critical to the outcome of a case. The trial can turn on the testimony of an expert witness on many types of issues, including standard of care and technical considerations. For this reason, it is critical to preserve your client’s ability to present the necessary expert testimony. In order to preserve this right, the expert must be properly designated.

Generally, experts are designated pursuant to California Code of Civil Procedure §2034.010, et seq. Demands typically are made 70 days before trial and exchanges are due 50 days before trial, unless the court sets different dates or the parties can agree to modify these very late statutory dates. The statute governing supplemental designations (Code of Civil Procedure §2034.280) allows a party to supplement its initial expert designation. There are two conditions associated with the supplemental designation: (1) it must be for an issue on which an adverse party has designated an expert; and (2) the supplemental designation is allowed only if there was not a prior subject matter designation by the party seeking to add an expert. Therefore, it would appear from a plain reading of the statute that a party could decline to designate an expert in the initial designation or reserve its rights and then respond to the opposing party’s experts in the supplemental designation. This is not the case.

In Fairfax v. Lords (2006) 138 Cal. App. 4th 1019, the defendant did not designate an expert at the time of the initial disclosure. The plaintiff did timely designate one expert. The defendant then timely prepared a supplemental designation in response to the plaintiff’s expert. The Court of Appeal decided the defendant’s actions were improper. The Court of Appeal held the defendant had misused the expert disclosure process. The defendant knew the issues in the case and what issues likely would require expert testimony. By not designating any expert at the time of the initial designation, the defendant abused the discovery process.  As a result, the defendant was unable to use an expert at trial.

In a similar case entitled Barboni v. Tuomi (2012) 148 Cal.Rptr. 3d 581, the plaintiff timely designated a retained expert and reserved his right to call any treating physicians as witness. On the same date, the defendant served a designation with no witnesses and stated defendant “hereby gives notice that he is not designating any retained experts for the first exchange of expert witness information,” and expressly reserved the right to designate expert in rebuttal to plaintiff’s designations. (Id. at 591.) Several weeks later, the defendant issued a second designation with two rebuttal witnesses. Over plaintiff’s objection, these experts were able to testify at trial. The Court of Appeal held this late designation was not a strategic move, but was a result of an error. (Id.) The Court went on to explain where excusable neglect occurs, there is no requirement one party be placed at a disadvantage at trial.

Pursuant to Fairfax, if expert testimony is required to appropriately present your case, designate these experts in the initial disclosure.  No party can strategically sit back, not disclose experts, and rely on the ability to supplement their designation. This applies similarly to a reservation of rights, which essentially fails to designate any experts. If it can be shown there was excusable neglect, then the party may be able to subsequently designate experts. However, the reservation of rights is not worth the risk of the possibility of trying a case without experts.

ABOUT THE AUTHOR: Jillian Fairchild specializes in insurance defense, personal injury, professional liability, and general civil litigation. Contact her at 858-263-4065 or jfairchild@tysonmendes.com.