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Late Expert Designation- Fatal or Flawed?

Author: David Ramirez

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

In the recent case entitled Du-All Safety, LLC v. Superior Court of Alameda County, (2019) 34 Cal.App.5th 485, the Second District Court of Appeal addressed under what circumstances a party may “supplement” its experts by identifying additional experts to testify on subject matters in which the party had not previously designated an expert.

Background

In 2015, Mark Krein, an employee of the Tuolomne Water District, fell from a bridge at his place of employment when the floor gave way.  Mr. Krein sustained serious injuries.  Mr. Krein and his wife (“Plaintiffs”) filed a lawsuit against several engineers, construction contractors and inspectors alleging that defects in the design and construction of the bridge resulted in his injuries.

After the case was set for trial, Defendant Du-All Safety, LLC, (“Du-All”) a safety inspection company named in the lawsuit, disclosed that it was planning on having two experts testify at time of trial.  In that same expert exchange, Plaintiffs disclosed they had seven experts designated to testify at trial.  After receipt of Plaintiff’s initial expert disclosure, Du-All served a supplemental expert disclosure identifying an additional five experts to rebut Plaintiffs’ experts.

Plaintiffs’ attorney filed a motion to strike Du-All’s supplemental experts, arguing that Du-All should have disclosed these experts in its original disclosure and complaining that Du-All’s supplemental disclosure was an act of “gamesmanship.” The trial court agreed, finding that Du-All “knew or should have known” that the plaintiff would call experts in the five subject areas, and by failing to designate experts in those areas in its original disclosure Du-All had waived its right to name its additional experts in its supplemental disclosure.

Du-All’s filed a petition for peremptory writ to challenge the trial court’s decision.

Ruling

On Appeal, the Second District Court of Appeal noted that, while “[w]e generally review a trial court’s ruling on a motion to exclude expert testimony for abuse of discretion” However, “when the exclusion of expert testimony rests on a matter of statutory interpretation, we apply de novo review.”

Citing Code of Civil Procedure sections 2034.210 (which provides that a party may demand a mutual and simultaneous exchange of each expert that any party “expects to offer in evidence . . . at trial”) and  2034.280 (which provides that “any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject”), the Court of Appeal stated that:

“[t]here is no dispute that Du-All timely and simultaneously designated its initial experts. And also, no dispute it timely designated its rebuttal experts in the same fields as plaintiffs’ initially designated experts.”

The Court of Appeal noted the expert disclosure statute merely requires a party to designate an expert whose opinion the party “expects to offer in evidence at … trial.” (§ 2034.210, subd. (a).)  So, the mere fact that Du-All may have known, expected, or even anticipated that plaintiffs would designate damages experts does not, under the requirements set forth in the Code of Civil Procedure, place any responsibility on Du-All to anticipate what experts plaintiffs might designate and in anticipation of that designation designate rebuttal experts in its initial disclosure.

In short, Du-All had a right to do what it did. And the trial court’s order was error, especially as Du-All complied with its disclosure obligations, there is no indication it acted unreasonably or engaged in gamesmanship, and there was no prejudice to plaintiffs.

The Court of Appeal noted the trial court’s ruling here reads into the statute obligations that do not exist: that a party must not only initially disclose every expert witness it expects to call at trial, but also every expert witness it anticipates using to rebut the experts the other side might designate as an expert.  The Court of Appeal further noted this interpretation is not supported by the plain language of Code of Civil Procedure section 2034.210, which requires only that a party designate the experts it expects to call at trial.

If plaintiffs’ interpretation were correct, then there would be no need for Code of Civil Procedure section 2034.280.  The Legislature contemplated that when a party designates an expert, it is possible the other side might want to designate a rebuttal expert on the same topic.

Takeaway

The Code of Civil Procedure section 2034.280 allows for supplemental expert exchanges. This case also underscores California’s Discovery Act, which is intended to discourage ambushes at time of trial. Moreover, despite the Court in Du-All Safety distinguishing the holding in Fairfax v. Lord (2006) 138 Cal.App.4th 1019, trial Court’s in Southern California have recently cited Du-All as overturning the holding in Fairfax. Absent substantial evidence of gamesmanship and prejudice, late designations are likely to be permitted by the courts.

 

David P. Ramirez is Senior Counsel at TYSON & MENDES, LLP, and primarily represents clients in complex litigation, including construction defect, insurance law, property disputes, and product liability.  Mr. Ramirez was named as a “Top Lawyer” in San Diego for “Complex Litigation” in March 2019 by San Diego Magazine.

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