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Don't Designate An "Inexpert" Expert

by Brian Chase

As Featured in the July 2011 Issue of "Advocate"

Part 1

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The restrictions on improperly designated experts are positively Draconian. A look at the most common errors made in expert-witness designation -and how to avoid them.

Despite a plethora of developing contemporary authorities governing proper expert-witness designations, the number of fatal errors made even by large firms and experienced practitioners as part of their clients' expert-witness designations continues to prove astonishing.

The courts have developed relatively Draconian restrictions on use of testimony of improperly and/or insufficiently designated expert witnesses, to compel strict compliance with the provisions of the Code of Civil Procedure (herein C.c.P.) section 2034.010, et seq. These measures support judicial policy placing heightened importance on simultaneous, full, and fair expert disclosure to aid efficient trial preparedness and promote settlements. As explained by our Supreme Court in Bonds v. Roy (1999) 20 Cal.4th 140, 83 Cal.Rptr.2d 289:

The very purpose of the expert witness discovery statute is to give fair notice of what an expert will say at trial. This allows the parties to assess whether to take the expert's deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area. 'The opportunity to depose an expert during trial, particularly if the testimony relates to a central issue, often provides a wholly inadequate opportunity to understand the expert's opinion and to prepare to meet it. [Citations.],' (Kennedy & Martin, Cal. Expert Witness Guide, supra, § 10.18, at p. 267.) "[T]he need for pretrial discovery is greater with respect to expert witnesses than it is for ordinary fact witnesses [because] the other parties must prepare to cope with witnesses possessed of specialized knowledge in some scientific or technical field. They must gear up to cross-examine them effectively, and they must marshal the evidence to rebut their opinions." (1 Hogan & Weber, Cal. Civil Discovery (1997) Expert Witness Disclosure s 10.1, p. 525.) 'Late disclosure of experts ... frustrates the very purposes of the discovery statutes, and should be permitted, with appropriate safeguards and limits, only when absolutely necessary to avoid a miscarriage of justice.' (Kennedy & Martin, Cal. Expert Witness Guide, supra, s 10.18, at p. 268.)   (Id., 20 Cal.4th at 146-147.)

There is no duty of disclosure of a consulting expert's opinion evidence prior to his expert-witness deposition.

Misunderstanding continues to persist among practitioners and even some members of the trial bench as to the timing of a party's obligations to disclose expert witness evidence pursuant to C.C.P., § 2034.210.

It is settled law that, whether or not a demand for exchange of expert witness opinion evidence has been made in a case, the identity and opinions of experts retained by a party to furnish consultation in a civil matter are considered derivative, protected attorney work product under the work product doctrine of C.c.P., § 2018.010. et seq. (County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 656 [271 Cal.Rptr.698].)

Until the expert is actually produced for his deposition, or a voluntarily disclosure is made of his or her opinion evidence (e.g., offering declaration or affidavit supporting summary judgment/adjudication), the opinions of the expert remain protected attorney work product. "The designation of a party as an expert trial witness is not in itself an implied waiver of the party's attorney-client privilege because his initial status is that of a possible expert witness. If the designation is withdrawn before the party discloses a significant part of a privileged communication (as in this case), or before it is known with reasonable certainty that the party will actually testify as an expert, the privilege is secure; if the party provides privileged documents or testifies as an expert (such as by stating his opinion in a declaration or at a deposition) the privilege is waived." (Shooker v. Superior Court, (2003) III Cal.App.4th 923,928-930 [4 Cal.Rptr.3d 334].)

This means that even after an expert witness has been formally designated as a retained expert, (s)he may be withdrawn at any time prior to deposition or a substantial, voluntary disclosure of opinion evidence, retained as a consultant, and his or her opinions remain nondiscoverable attorney work product. (See 2 Weil and Brown, California Civil Procedure Before Trial, Rutter Group, ¶ 8:1687.5 to 8:1687.9.) However, once the designated expert's deposition is taken, (s) he can be called by any party who is authorized to offer expert testimony at trial. (C.C.P., §2034.310(a).)

Occasionally, some controversy has arisen over the right of parties to "demand the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by the expert…in the course of preparing that expert's deposition." (C.C.P., § 2034.210(c).)

If demanded, these "discoverable" reports and writings must be produced at the time of the simultaneous exchange called for under C.C.P. § 2034.270. Exclusion of an expert's opinions later may be authorized under §2034.300(d) if discoverable reports and writings are not disclosed under § 2034.270.

Some practitioners and jurists have interpreted these statutory requirements as obligating a designating party to disclose all of his or her expert's work product (e.g., "any [of the expert's] reports and writings") at the time of the designation. However, such an interpretation would obviously lie at odds with the plethora ofcase authorities above, which protect such derivative work product even after expert designations.

The flaw in this argument is that in making it, the word "discoverable" which precedes "reports and writings" must essentially be ignored. Rather, "Discoverable reports and writings" as used together, would seem obviously to mean that disclosure of reports and writings becomes obligatory only when they have become "discoverable," i.e., no longer subject to the work product doctrine. Even "after an expert is designated, (s) he can be withdrawn at any time prior to giving an expert deposition (or other declaration), be retained as a consultant, the former expert need not turn over his or her expert "report" at all. (Weil & Brown, supra, at ¶ 8:1687.9; Kennedy, supra, 64 Cal.App.4th at 679.) Until the expert is presented for deposition (or the expert offers a declaration thus only at that point finally waiving the work-product privilege), no such reports need be turned over because the expert may still be withdrawn and "his or her reports remain protected as work product." (Weil & Brown, supra, at ¶ 8:1687.9; Kennedy, supra, 64 Cal.App.4th at 679.

The obvious exception to this rule involves doctors who have performed IME examinations on plaintiffs. This follows because the Discovery Act expressly imposes a statutory waiver on any work product privilege assertion as to any of the examiner's writings and/or testimony, under C.C.P., § 2032.610(c) [formerly § 2032(h)]. (Kennedy, supra, 64 Cal.App.4th at 679.)

Any failure to designate experts timely in response to a timely demand for exchange precludes the right to call expert testimony and must be immediately corrected.

All experts must be identified in the listing portion of a litigant's expert designation. Under settled law, any person who will be called at trial to give expert testimony must be included on this list…" (Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1421 [116 Cal.Rptr.2d 570] [emphasis supplied].) "Retained experts must be designated, and the designation must [further] be accompanied by the 'expert declaration'…" (Id., at 1422-1423.) The failure to list an expert in the party's expert-witness designation requires the exclusion of the undesignated expert's opinion testimony at trial pursuant to C.c.P., § 2034.300(a). (Ibid.)

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