Don't Designate An "Inexpert" Expert
by Brian Chase
As Featured in the July 2011 Issue of "Advocate"
The most important tactical aspect of expert depositions is expert preparation. Failure of a party's expert to disclose at deposition all of his opinions if asked, potentially subjects any undisclosed opinions to exclusion. (Jones v. Moore (2000) 80 Cal.App.4th 557 [95 Cal.Rptr.2d 216.]) It is not uncommon that the expert may not have formed all of his or her opinions at the time of his or her expert deposition. In such event, it is important to make a record of the fact that there may be additional work to be performed or additional areas of opinions to be addressed. The adverse party should then be notified timely if such is the case and, if requested, be given the opportunity to re-depose the expert on such additional areas of opinions. If this is timely undertaken, unstated expert opinions at the expert's initial deposition might still be admissible and not subject to exclusion under Jones. (See, also, Easterby, supra, 171 Cal.App.4th at 780.)
The promptness of such subsequent disclosure is the pivotal and decisive factor. As the Court in Easterby observed, "a party's expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult." (Easterby, supra, 171 Cal.App.4th at 780.)
As shown above, most of the common errors plaguing expert designations, and the resulting consequences, result from the absence of adequate planning and inattention to the detail called for under C.C.P., § 2034.010. et seq. As with any other area of civil litigation, adequate preparation and meticulous thoroughness in preparing expert designations and declarations remain key to avoiding inexpert expert designations.
Brian Chase is a partner at Bisnar Chase Personal Injury Attorneys, which specializes in auto products liability and serious personal injury litigation. Brian Chase is a past-President of the Orange County Trial Lawyers Association and is currently a Vice-President of Consumer Attorneys of California. He was recognized as Products Liability Trial Lawyer of the year by OCTLA in 2004. He personally argued the landmark nonretained expert witness case of Schreiber v. Estate of Kiser before the California Supreme Court in 1999.