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Don't Designate An "Inexpert" Expert

by Brian Chase

As Featured in the July 2011 Issue of "Advocate"

Part 4

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Furthermore, exclusion of cumulative experts also becomes potentially problematic, when the only subject matter narrative description of the anticipated testimony from numerous specialists in differing fields is "liability, causation and damages."

My office prefers to describe the areas of opinion testimony in far more detail, inclusive of every conceivable subject matter area and subarea of possible opinion evidence in addition to the abbreviated descriptions above. "''here the adverse parties have designated numerous retained experts, all of whom will purportedly testify to "liability, causation and damages," we recommend meeting and conferring to insist on further information and a more detailed description of testimonial subject matter areas of these experts. Also to be discussed is whether the number of retained and nonretained experts should be pared down to avoid the cost of deposing redundant experts unnecessarily.

We have also found that certain adversaries will sometimes proliferate redundant expert designations for reasons of tactical attrition as well as to audition their cadre of experts, reserving for the time of trial a final decision on which will be called to testify. Ifvoluntary coop-eration of counsel is not forthcoming thereafter, a motion for a protective order is worth pursuing on shortened time, if necessary. We find that cost ofsuch a motion usually proves far less than the cost of deposing numerous redundant adverse experts and retaining others to respond in kind.

Properly Disclosing Nonretained Experts

Despite the simplicity of disclosure requirements, the frequency of improper mis--designations of nonretained experts abounds. All the Discovery Act requires for proper disclosure of any nonretained expert, is that the party intending to call a nonretained expert simply list each such nonretained expert's name and address. (C.C.P., § 2034.260(b) (1); Kalaba v. Gray, supra.) The obvious reason for minimum mandatory disclosure of at least the name and address of nonretained experts is necessary so that they can be located and deposed by adverse parties. This follows because a party has no duty to undertake to produce a nonretained expert for deposition by an adverse party. Rather, that nonretained expert must be subpoenaed by the deposing party. (Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198,1203 [272 Cal.Rptr. 324].)

It is improper and insufficient to merely list an entire, nameless class of types of nonretained experts. (Kalaba, supra, 95 Cal.App.4th at 1422-1423.) In that case. the plaintiff listed not a single name or address of any nonretained expert. Instead, Plaintiff merely identified her nonretained experts intended to be called as: "all past or present examining and/or treating physicians." The trial court's grant of Defendant's motion in limine at trial was upheld by the court of appeal as proper under C.C.P., § 2034(j)(1). The court observed that it is not sufficient identification to group witnesses as "all past or present examining andlor treating physicians", but the proponent must identify treating physicians by, at a minimum, her name and address to comply with the letter and spirit of C.C.P., §2034.

Failure to specifically list a nonretained expert as an intended expert to be called at trial (as the plaintiff in Kalaba did) deprives the adversary of the opportunity to locate and depose these nonretained experts in advance of trial since nonretained experts are not required to be produced by the listing party for deposition, nor is an expert declaration required setting forth the anticipated areas of trial testimony. (Schrieber; supra, 22 Ca1.4th at 37, citing, Hurtado, supra. 222 Cal.App.3d at 1203.)

To avoid exclusion of expert testimony at trial, particular caution should be employed in designating nonretained experts to make sure that accurate name and address information is furnished for each and every such proffered nonretained expert.

Proper vs. Improper Supplemental Expert Designations

Another frequent mistake made by practitioners arises out of a fundamental misunderstanding of the nature and purpose for supplemental expert designations under C.C.P., § 2034.280.

The two most common mistakes made in supplementally designating experts, are: (1) improperly attempting to use the Supplemental Designation mechanism as a vehicle for further initial designation (including substituting initially-designated experts); and (2) supplementally designating an expert witness whose area of opinion is not responsive to an area of expertise initially designated by an adverse party.

Basham v. Babcock, supra, 44 Cal.App.4th at p. 1723. held that the restrictions set forth in C.C.P., § 2034(h) (since renumbered C.C.P., § 2034.280(a)), are mandatory and are narrowly construed given the importance of early and simultaneous exchange of expert witness disclosures. (Accord, Bonds, supra, 20 Cal.4th at 146-147.)

The facts in Basham were as follows: The Defendant in a malpractice case initially designated an IME/orthopedist to offer opinions on causation. He later supplementally designated a radiologist, also on causation. In holding the radiologist'S opinion properly excluded, the Court held "the plain language of § 2034.280(a) thus holds that a party may only use a supplemental expert designation if the party supplementing the expert witness list has not previously retained an expert to testify on that subject." (Basham, at l72~1724.) Thus, it is improper for a party to use a supplemental designation to add additional experts testifying on the same subject matters as previously designated experts, or as a means of substituting a new expert for a previously designated expert.

By logical extension, a party also may not use the supplemental designation to designate an expert on a subject that is not "covered by an expert designated by an adverse party to the exchange." (C.C.P., § 2034.280(a).) This means the supplemental designation also cannot be employed to add new experts that could have been designated in the initial exchange of information, but may have been overlooked by the designating party at the time. Unless the adverse party had designated an expert in that specific area, such a nonresponsive supplemental designation is violative of § 2034.280, will likely result in exclusion of such improperly designated expert(s).

When in doubt, the most advisable course of action is therefore to move as timely as the need is perceived, for leave to augment your initial designation, pursuant to C.C.P., § 2034.620.

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