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Don't Designate An "Inexpert" Expert

by Brian Chase

As Featured in the July 2011 Issue of "Advocate"

Part 3

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Handling "Hybrid" Expert Issues

Not withstanding the guidance in Schreiber, little authority exists concerning how to designate "hybrid" experts, i.e., experts who may have fonned initial "percipient" expert opinions unrelated to the litigation, but who are later requested by a party to offer further or additional opinions at trial based on additional evidence not initially available to the nonretained expert. Obviowly, where any such expert is requested by a party to "form and express opinions" at trial beyond those percipient opinions previous1y reached independently, the expert might be considered "converted" to "retained" status. An appropriate expert declaration must then be prepared, and the expert must be furnished for depo,ition. (C.C.P., § 2034.260 (b).)

The recent case Easterby v. Clark (2009) 171 CaI.App.4th 772 [90 Cal.Rptr.3d 81] offers some instruction on this issue. The treating surgeon, identified as a nonretained expert. was shown some medical records by the defense while on the stand during trial and was asked for opinion on those records. The trial court granted the defense's motion to exclude that, and all of, his testimony. On appeal, the defense argued that the surgeon had been morphed into a "retained" expert. The court of appeal, at pages 782-783, rejected that argument. The Court noted that the opinions formed by the surgeon were primarily based upon what he learned during treatment of the patient, and not based solely on information provided by a litigant in preparation for or at the trial. Because the additional information was nothing more than an attempt to change the convincing weight of the opinions, it did not "'morph" the surgeon into a retained expert.

However, there are instances where opinion testimony from nonretained experts which goes beyond the percipient opinions formed is essential to proof of a critical issue at trial, but the nonretained expert cannot be "retained" by the party seeking to produce the evidence. Our firm has encountered this dilemma with forensic pathologists and building inspectors, for example, who by virtue of their public job duties and exposure to fresh evidence, were uniquely qua1ified to form opinions on one or more expert issues critical to the case, but did not possess all of the evidence supportive of their opinions. In these instances, we have identified these experts as "retained," and complied with the declaration requirements, even though the expert has not actually been retained. Upon receipt of a notice ofdeposition of the retained expert, we serve a subpoena on the expert to appear and the date and time set for his or her expert deposition to ensure compliance with C.C.P., § 2034.460.

No provision of section 2034.260 (c) precludes properly handling hybrid experts in this fashion. C.C.P., § 2034.260(c) (3) doe, not require the attorney's declaration to state that the expert has agreed to be "retained," but only that (s)he "has agreed to testifY at trial."

The Narrative Statement

Once an expert has been designated as retained (mandatorily inclusive of parties and their employees), an expert declaration fully compliant with section 2034.260(c)(I-5) is mandatory.

It is an understatement that such declarations must be prepared meticulously and with due care. The most common, and potentially most damaging, errors in expert declarations lie in counsel's failure to properly provide a "narrative statement of the general substance the expert is expected to give." The second most common error is the failure to list both of the expert's hourly rates for deposition and for consultation.

Of these, mishandling of the "narrative statement of the general substance the expert is expected to give" can be catastrophic to the case. A retained expert's opinion testimony at trial is not permitted to exceed the scope of the description of the "narrative statement of the general substance the expert is expected to give," and is properly excluded on the motion of an adverse party. (Bonds v. Roy, supra.)

Prior to Bonds, courts permitted parties' experts to testify at trial broadly, frequently beyond the subject matter areas set forth in the expert witness declarations, regardless of their incompleteness and/or inaccuracies. (See, e.g., Castaneda v. Bornstein (1995) 36 Cal.App.4th 1818 [43 Cal.Rptr.2d 10], Martinez v. City of Poway (1993) 12 Cal.App.4th 425 [15 Cal.Rptr.2d 644.]) In Bonds, however, the Supreme Court overruled these prior decisions and expressly held that an expert witness may not offer expert opinion testimony at trial in subject matter areas which were not adequately disclosed within the "narrative statement of the general substance of the testimony that the expert is expected to give" portion of the expert witness declaration required by section 2034(f)(2)(B). (Bonds, supra, 20 Cal.4th at 148-149.)

Some practitioners, particularly in medical-negligence cases, have reacted to Bonds by offering as little information as possib1e in their "narrative statement of the general substance the expert is expected to give." These types of designations typically state that "this expert is expected to testify as to liability, causation and damages." No case has yet addressed whether such any abridged narrative statement constitutes a sufficient disclosure under section 2034.260(c) (2). Such a deliberately and nonspecific abbreviated narrative, particularly in a factually complex case, can make it very difficult, if not impossible, for an adverse party to decide whether (s)he requires additional expert testimony in a supplemental designation.

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