En Español

Don't Designate An "Inexpert" Expert

by Brian Chase

As Featured in the July 2011 Issue of "Advocate"

Part 2

| Page 1 | Page 2 | Page 3 | Page 4 | Page 5 |

Furthermore, untimely service of an expert-witness exchange, whether inadvertent or purposeful, also mandates exclusion of any and all expert testimony. (Fairfax v. Lords (2006) 138 Cal.App.4th 1019,1026-1028 [41 Cal.Rptr.3d 850.])

Fairfax held that expert-witness designations must be simultaneous, and that a party cannot await the opponent's designation before later deciding what experts to disclose and doing so untimely.

Where a party's failure timely to serve his or her expert disclosures is genuinely inadvertent, the party should immediately serve the intended designation and decla-ration (if applicable), Opposing counsel should then be contacted to inquire whether counsel will stipulate to exclude the inadvertent untimeliness. Any such agreement should then be confirmed in writing. In this author's experience, most opposing counsel will agree to do so if the inadvertent and untimely designation delay is brief. Most trial courts are also likely to grant a motion under C.C.P., § 2034.620, to permit a tardy designation retroactively, as long as the motion is promptly brought and will visit no genuine prejudice on the adverse party. Opposing counsel who unreasonably refuse to permit a tardy designation are also likely to face an award of monetary sanctions for forcing the designating party to file, and the trial court to hear, such a motion. (C.C.P., § 2034.730.)

Distinguishing Between Retained and Nonretained Experts

The difference between retained and nonretained experts continues to be frequently misunderstood.

That an expert may be retained or nonretained is immaterial to the basic obligation ofdisclosure of the expert. Beyond the duty of timely disclosure, the distinction between retained and nonretained is critical with respect to three issues: (1) how the nature of the expert's opinion formation process affects whether(s)he is retained or nonretained; (2) whether, in addition to the designation of name and address, an expert declaration concerning that expert is also required; and (3) whether the designating party is obligated to furnish the expert for deposition by a deposing adverse party.

The primary, definitional distinction between a retained an nonretained expert is statutorily established in C.C.P., § 2034.210 (b): if an expert is a party or employee, or "has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trail of the action" (also referred to as "specially retained," the expert is a retained expert. For "party related" and "retained" experts, the designating party must include his counsel's expert declaration which must include the information set out in C.C.P., § 2034.260(c)(I-5).

One of the most common errors our offices encounter is a relatively frequent failure by counsel to recognize that their clients and/or client's employees are always considered retained experts if they intend to offer any testimony at trial which may include expert opinions. (C.C.P., § 2034.210(b).) This means that. in a medical-malpractice case, for example, if a defendant physician intends to defend his standard of care or deny causation of injury on the stand at trial, an expert declaration is required for him and he is required to be produced for an expert deposition upon service of proper notice by any adverse party. (C.c.P., § 2034.460(a).) The same is also true of any employee of a party who may offer any expert opinion testimony, even if that employee was not retained to form and express expert opinions at trial.

The obvious rationale for applying the same rules applicable to retained third-party experts to parties and their employees lies in the fact that the attorney-client privilege encompasses all such experts. Procedural fairness dictates that an adverse party who may not ethically communicate with that expert party and/or party employee represented by counsel, be properly placed on notice of those areas ofexpert opinion evidence the party or in-house employee may offer, so any appropriate supplement designation can be undertaken.

As a result, an attorney contemplating calling his client or an employee of his client as an expert at trial balance the pros and cons of introducing potentially critical in-house expert testimony needed for a prima facie showing at trial against the waiver of the attorney client and work product privileges. Consideration also needs to be given that experts are fre-quently permitted to be more extensively cross-examined than lay witnesses. This decision must be made sufficiently well in advance of trial to comply with the declaration requirements.

A natural person otherwise qualified under Evidence Code section 801 to offer "expert" opinions at trial, who may have formed those opinions independently of the litigation, is not considered "retained". (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 [91 Cal.Rptr.2d 293.]) This is true even if the nonretained expert is ultimately called by a party at trial to offer opinions which are typically offered only by retained experts (e.g., whether a physician's conduct in a medical negligence action was below the applicable standard of care). In Schreiber, the California Supreme Court held that a treating physician not specifically retained by Plaintiff to "form and express" expert opinions at trial, but nonetheless properly designated as a "nonretained expert," was authorized to offer causation of injury opinions at trial, where these opinions had been formed "percipiently," during the physician's care and treatment of the Plaintiff. No expert declaration was therefore required for this nonretained expert. (Id., 22 Cal.4th at 35-39.)

As the court observed, "As the legislative history clarifies, what distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff's injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion....A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff's injuries and medical history because of the underlying physician-patient relationship..." (ld., 22 Cal.4th at 35-36.) There is no attorney work product protection for the opinions of these potential experts, whose identities are discoverable and are subject to being deposed at any time during the litigation.

Non-retained experts will include not only treating physicians, but other experts who are qualified to form opinions and do so independently of the litigation at issue. These would also include, for example, police officers. emergency EMT personnel, accident investigators, forensic pathologists, building inspectors, engineers, and potentially others whose opinions concerning a matter ultimately sought to be introduced in later litigation were formed separate and apart from that litigation. & long as those opinions are contextually derived outside the scope of the litigation, these experts are properly considered nonretained. (Schreiber, supra, 22 Gal.4th at 31.)

| Page 1 | Page 2 | Page 3 | Page 4 | Page 5 |

Have a question that wasn't answered here?

CALL US!
(800) 561-4887

Was This Page Helpful? Yes | No

Client Reviews of Bisnar Chase

“I could not recommend Bisnar & Chase highly enough! Now, I must be forthcoming and tell you that I am writing this review on behalf of my wonderful mother. You see, she's a mom, and therefor [sic] by nature is completely unable to do even the most simple of tasks on the internet. Like writing a a Yelp review. But we all love our moms don't we? Yes. We all love our moms (except Charles Manson), and would do anything to make sure they are protected and well taken care of. Upon referral from my mother's coworker, we contacted Bisnar & Chase. They had done a great job in this previous case and were located extremely close to both UCI and home, which made stopping by their office very convenient for my Mom. My Mom had been in an auto accident, nothing crazy but not a mere fender bender, and suffered what we thought to be some minor whiplash. Months later this was definitely not the case. Her client experience with the associates at Bisnar & Chase was so impressive that she raved to me about every time she heard anything from them. How thorough they were. How they listened better than I did (or something to that effect). How she liked Shannon and Mr. Bisnar and felt that they really had her best interests at heart. I honestly couldn't get her to shut up about them. But as a daughter that last part was all that I needed to hear to know that I we had found the right people and I could sleep easy at night knowing my Mom was in good hands. The Bisnar & Chase team really went above and beyond my family's expectations. And for that I am extremely grateful. If you live in the Newport Beach/Irvine/Costa Mesa/General Orange County area I would highly recommend Bisnar & Chase to both friends, and family.”

by Chelsea C.

reviewed at Yelp

“I knew Bisnar Chase would help me. Your law firm is excellent and makes me wish I could work there!”

by Cynthia

reviewed at Super Pages

“I was in an accident and it was the other persons fault. I call [sic] Bisnar Chase and they came to my door and took down all the information to get the case going. Not only did they do a fantastic job during the whole process, they got me a little more money too. ;) Thank you Bisnar Chase and Staff for your help. It truly has made a difference.”

by Thomas Arcala

reviewed at Facebook

See All Ratings And Awards

The BISNAR CHASE Difference

  • “I was in a serious auto accident when I was in law school. I had to hire a personal injury attorney and had a really bad experience.”

    John Bisnar

    on what made him want to become a personal injury attorney

  • “If you hire Bisnar | Chase and we don't recover money for you in your case, you owe us absolutely nothing.”

    Brian Chase

    on whether or not you would owe money if your case was lost

  • “Whatever the philosphy of the management is, is going to be carried through by the employees and it’s going to reflect on the experience the clients have.”

    John Bisnar

    on his philosophy on running a law firm

  • “The insurance companies are going to be investigating that accident the day it happens. You need to have a lawyer on your side the day it happens as well.”

    Brian Chase

    on when you should contact an attorney

  • “The first thing we want to do with our clients is to relieve the stress. Make them feel comfortable. Treat them as an honored guest.”

    John Bisnar

    on how he would define superior client representation

  • “It's hard to answer that question right up front without a thorough analysis. What I can guarantee you is, with the resources of Bisnar | Chase we will maximize the value of your case.”

    Brian Chase

    on what your case is worth

Bisnar Chase Personal Injury Attorneys
1301 Dove St #120
Newport Beach, CA 92660

local: (949) 203-3814
Get Directions

California Personal Injury Blog