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Don't Designate An "Inexpert" Expert - Part Two

by Brian Chase

As Featured in the July 2011 Issue of "Advocate"

Part 2

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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.)

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