DISCOVERY CASE OUTLINE
© Richard E. Best 1998-2014 All rights
reserved
EXPERT WITNESS
STATUTORY OUTLINE
DEMAND
DISCLOSURE OF EXPERTS [C.C.P.
§2034.210(b)]
Disclose if expect to offer expert opinion
Experts designated by others & deposed
Adopting other party's experts improper
Variation from statutory scheme
WITHDRAWAL OF EXPERTS
DECLARATIONS re experts
[C.C.P.§2034.220; parties, employees & retained experts]
"Retained" for purpose of forming and expressing an opinion; treating physician
Treating physician
"Percipient"
Contents of declaration [C.C.P. §2034.260(c)]
Exclusion of expert for failure to provide declaration C.C.P. § 2034.300
Minor deficiencies
Deficiency may be cured by deposition testimony
Kennemur v. State of California (1982) 133 Cal.App.3d 907 , 184 Cal.Rptr. 393
TABLE OF SUBSEQUENT DISCLOSURE
STATUTES
Not substitution of expert on same subject
Exclude [or confine to new matter]
Mistake inadvertence excusable neglect
Prejudice
WITNESS DESIGNATED BY OTHER PARTY
& DEPOSED
IMPEACHMENT TESTIMONY
DEPOSITIONS OF EXPERTS
DUTY TO PRODUCE PER NOTICE: "RETAINED" & FEE TENDERED
COMPELLING ATTENDANCE
FEES [Note numerous amendments to C.C.P. § 2034.430) in 1990,'92,'93,95]Motion
Treating physician
Amount:
Compensation of expert to show bias
Constitutional Right to Privacy
Work Product & Attorney-Client issues
Undisclosed expert
SANCTIONS: exclusion of expert opinion if unreasonably fail to [C.C.P.§2034.300]
Failure to list expert witness
Failure to submit expert witness declaration
Inadequate disclosure may be basis for preclusion sanction including motion in limini as to scope of testimony
Failure to produce expert reports and writings
Failure to make expert available for deposition
Alternative bases for exclusion of witness
Lesser sanction alternative should be considered
Waiver of right to exclude
Standing to object to testimony
Preclusion of expert sanction inapplicable to pretrial motion
Preclusion of expert opinions not given at deposition when asked
UNDESIGNATED WITNESSES THAT MAY BE CALLED TO TESTIFY [C.C.P.§2034.310]
Deposed Expert designated by another
Impeachment expert [e.g. falsity or nonexistence of foundational facts]
DISCOVERY CUTOFF
ALTERNATIVES & VARIATIONS TO
STATUTORY DEMAND & DISCLOSURE ???
REBUTTAL WITNESSES
CONTACT WITH OPPOSING EXPERTS
DISQUALIFICATION OF
EXPERT
CONTENTS
CASES
CASE OUTLINE
TOP
STATUTORY
OUTLINE
CALIFORNIA DISCOVERY
SF
DISCOVERY
NOTE: Prior to July
1, 1987, former Sec.2037 et seq governed expert disclosure
containing similar provisions but some significant differences.
Prior to 1979, case law governed expert discovery.
Advanced Cardiovascular Systems v. Medtronic (N.D.Cal.
1998), 1998 WL230981
Alef v. Alta Bates Hospital (1992), 5 Cal.App.4th 208
Allen v. Superior Court (1984), 151 Cal.App.3d 447
Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal. App.
4th 592;3 Cal. Rptr. 3d 593
Basham v. Babcock (1996), 44 Cal.App.4th 1717
Beverly Hospital v. Superior Court(1993), 19 Cal.App.4th
1289
Bonds v. Roy (1999), 20 Cal.4th 140
Bro-Tech
Corp. v. Thermax, Inc.,2008 WL
724627 (E.D. Pa. 3/17/08)
Brun v. Bailey (1994), 27 Cal.App.4th 621
Casteneda v. Bornstein (1995), 36 Cal.App.4th 1818
City of Fresno v. Harrison(1984) 154 Cal.App.3d 296
Collin v. Conn. Valley Arms(1982), 137 Cal.App.3d 815
County of Los Angeles v. Superior Court (1990), 222 Cal
App.3d 647
County of Los Angeles v. Superior Court(1990), 224
Cal.App.3d 1446
Crumpton v. Dickstein (1978) 82 Cal.App.3d 166.
Dickinson v. Howen(1990), 220 Cal.App.3d 1471
Dozier v. Shapiro (2011)
, 199 Cal.App.4th 1509
Fairfax v. Lords (2006) , 138
Cal.App.4th 1019
Fish v. Guevara (1993), 12 Cal.App.4th 142
Foster v. Gillette Co. (1979) 100 Cal.App.3d 569.
Gallo v. Peninsula Hospital(1985), 164 Cal.App3d .899
Gotschall v. Daley
(2002), 96 Cal.App.4th 479
Grover v. Superior Court (1958) 161 Cal. App.2d 644
Guzman v. Superior Court(1993), 19 Cal.App.4th 705
Hernandez v. Superior Court (2003), 112 Cal.App.4th
285
Hirano v.Hirano (2d Dist., Div. 8;December
19, 2007) (As modified Jan.2, 2008) 158 Cal.App.4th 1
Huntley v. Foster (1995), 35 Cal.App.4th 755
Hurtado v. Western Medical Center (1990), 222 Cal.App.3d
1198
Jones v. Moore (2000), 80 Cal.App.4th 557
Kalabra v. Gray (2002), 95 Cal.App.4th 1416
Kennedy v. Modesto City Hospital(1990), 221 Cal.App.3d 575
Kennedy v. Superior Court (1998), 64 Cal.App.4th 674
Kennemur v. State of California(1982), 133 Cal.App.3d 907
Kenney v. Superior Court(1967), 255 Cal.App.2d 106
Kohan v. Cohan(1991), 229 Cal.App.3d 967
Marsh v. Mountain Zephyr, Inc. (1996), 43 Cal.App. 4th 289
Martinez v. City of Poway(1992), 12 Cal.App.4th 429
Moore v. Jones (5/1/00) Cal.App.4th
Paxton v. Stewart(1998), 68 Cal.App.4th 331 review
granted 12/3/98
Plunkett v. Spaulding(1997), 52 Cal.App.4th 114
Powell v. Superior Court (1989), 211 Cal.App.3d 441
Province v. Center for Women's Health & Family Birth(1993),
20
Cal.App.4th 1673
Rancho Bernardo Development Co.v. Superior Court(1992), 2
Cal.App.4th 358
Rangel v. Graybar Elec. Co. (1977) 7O Cal.App.3d 943
Richaud v. Jennings((1993), 16 Cal.App.4th 81
Rico v.
Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51[rev granted 6/9/04]
Sanders v. Superior Court (1973) 34 Cal.App.3d 270.
Schreiber v. Estate of Kizer (1999), 22 Cal.4th 31, 989
P.2d 720
Scotsman Mfg. v. Superior Court (1966), 242 Cal.App.2d 527
Shadow Traffic Network v. Superior Court (1994), 24
Cal.App.4th 1067
Swartzman v. Superior Court(1966), 231 Cal. App.2d 195
Shooker v. Superior Court (Winnick) (2003) 111 Cal. App.
4th 923; 4 Cal. Rptr. 3d 334
South Tahoe Public Utilities Dist. v. Superior Court (1979)
90 Cal.App.3d 135
Sprague v. Equifax Inc. (1985),166 Cal.App.3d 1012
St Vincent Medical Ctr. v. Superior Court(1984), 160
Cal.App.3d 1030
St. Mary Medical Center v. Superior Court (1996), 50
Cal.App.4th 1531
Stanchfield v. Hammer Toyota (1995), 37 Cal.App.4th 1495
Stark v. City of Los Angeles(1985), 168 Cal.App.3d 276
Stony Brook I Homeowners Ass'n. v. Superior Court (Diehl)
(2000), 84 Cal.App.4th 691 , 101 Cal.Rptr.2d 67
Torres v. Superior Court (1990 ), 221 Cal.App.3d 181
True v. Shank (2000), 81 Cal.App.4th 1250
United Service Auto Assoc. v. Cavanaugh(1991), 147
Cal.App.3d 681
Waicis v. Superior Court ( 1990), 226 Cal.App.3d 283
West Hills Hospital v. Superior Court (1979), 98 Cal.
App.3d 656
Western Digital Corp. v. Superior Court (1998), 60
Cal.App.4th 1471
Williams v. Volkswagenwerk Aktiengesellschaft (1986), 180
Cal.App.3d 1244
Williamson v. Superior Court(1978), 21 Cal.3d 829
Wimberly v. Derby Cycle Corp.(1997), 56 Cal.App.4th 618
Zellerino v. Brown (1991), 235 Cal.App.3d 1097
CONTENTS --
CASES -
-CASE OUTLINE--
TOP--
STATUTORY
OUTLINE--
CALIFORNIA
DISCOVERY--
SF DISCOVERY
STATUTORY OUTLINE
CODE OF CIVIL PROCEDURE
SECTION 2034
For C.C.P. §2034 text see Discovery
Act & Statutory Outline
NOTE: Prior to July
1, 1987, former Sec.2037 et seq governed expert disclosure
containing similar provisions but some significant differences.
Prior to 1979, case law governed expert discovery.
EXCHANGE OF LISTS OF PERSONS [C.C.P.§2034.210(a)]
Simultaneous and mutual exchange of lists by all parties
Natural persons whose testimony in form of expert opinion party expects to offer
DEMAND FOR EXCHANGE
Timing of demand
After setting initial trial date [C.C.P. §2034.210]
No later than the closer to the trial date of [C.C.P.§2034.220]10th day after setting of initial trial date
70 days prior to initial trial dateArbitration: Expert discovery permitted after arbitration C.C.P. §1141.24
Contents of demand [C.C.P.§2034.230]
Specify Date of Exchange: the closer to the trial of
50 days before the initial trial date
20 days after service of demand
Can be changed by court on motion for good causeMay include demand for "discoverable" expert report & writings,"if any" [C.C.P.§2034.210(c)]
Service
Demanding party must serve all parties [C.C.P.§2034.240]
DISCLOSURE
Timing: on or before the date of exchange specified [C.C.P.§2034(f)]
Manner of exchange:meeting of attorneys or by mail [C.C.P.§2034.260(a)]
mutual and simultaneous by all parties [C.C.P.§2034.210(a)]Hernandez v. Superior Court (2003), 112 Cal.App.4th 285, 297 [tr ct rev'd when unilateral disclosure ordered in case management conference order; "Thus, the statute provides for an earlier simultaneous, mutual exchange, but it does not permit a unilateral exchange. (See § 2034, subds. (c), (e); see also, § 2019, subd. (a)(6).) Trial courts may not adopt procedures that conflict with any statute.]
Alternative disclosures [C.C.P.§2034.260]
list of persons expect to call to offer expert opinions
statement re no present intent to offer expert opinions
Name and address of all experts [C.C.P.§2034.210(a)]Any natural person whose expert opinion you expect to offer
Parties or employees of parties
Persons retained to form and express opinion
OthersExpert witness declaration signed by attorney for specified experts
Experts for which required: [C.C.P.§2034.210(b)]
Party or Employee of Party
Expert "retained" by Party for purpose of forming & expressing opinionContents of declaration [C.C.P.§2034.260(c)]
Qualifications of expert: brief narrative statement
General substance of testimony expected: brief narrative statement
Representation expert has agreed to testify
Representation expert sufficiently familiar to submit to meaningful depo including expected opinion and basis
Expert fees: hourly & daily for depo and for consulting with retaining attorney
Production of "discoverable" reports & writings, "if any" and if demanded [C.C.P. §2034.210(c), C.C.P. §2034.270]
PROTECTIVE ORDER [C.C.P.§2034.250]
ALTERNATIVE LATE DISCLOSURES
TARDY: if fail to submit info on specified date [C.C.P.§2034.710, .720]
AUGMENT: if new experts or subject matter [C.C.P.§2034.610]
SUPPLEMENTAL: within 20 days, if new subject raised by opponent [C.C.P.§2034.280]
EXPERT DEPOSITIONS [C.C.P.§2034.410] see also Deposition Case Outline
Take within 75 miles of courthouse
Tender fees of retained experts and others enumerated e.g. treating physicians
Reasonable & customary fees for time spent at the deposition; disputes resolved on motion
EXCLUSION OF EXPERT FOR UNREASONABLE NONCOMPLIANCE [C.C.P.§2034.300]
List expert witness
Submit expert declaration
Produce expert reports and writings
Make expert available for deposition
CONTENTS --
CASES -
-CASE OUTLINE--
TOP--
STATUTORY
OUTLINE--
CALIFORNIA
DISCOVERY--
SF DISCOVERY
Defective demand not void
Zellerino v. Brown (1991), 235 Cal.App.3d 1097 [Party serving demand may seek 473 relief & protective order compelling disclosure; objection insufficient; §473 relief from a demand served too early granted and disclosure ordered; opposing party's experts excluded at trial for failure to comply with disclosure order; court notes §2034 provision allowing a court to change the exchange date pursuant to motion; court suggests that an objection to a defective demand is improper]
Zellerino creates uncertainty until the matter is resolved on motion and does not clarify which party must make the motion or the consequences from failing to make a motion.Initial trial date [See Discovery Cutoff Outline]
Guzman v. Superior Court(1993), 19 Cal.App.4th 705 [new trial on damages; trial court rev'd for denying motion to designate new experts; plt's motion to augment prior to the first trial had been denied and prior to the new trial it sought to designate new experts;]
Beverly Hospital v. Superior Court (1993), 19 Cal.App.4th 1289, 1293,1295
Province v. Center for Women's Health & Family Birth(1993), 20 Cal.App.4th 1673
Hirano v.Hirano (Cal. App. Second Dist., Div. 8;December 19, 2007) (As modified Jan.2, 2008) 158 Cal.App.4th 1. After reversal of judgment entered after dismissal for failure to prosecute and remand for a trial, discovery reopens. The prior demand for exchange of experts in the first action does not require a response in the second action.
CONTENTS --
CASES -
-CASE OUTLINE--
TOP--
STATUTORY
OUTLINE--
CALIFORNIA
DISCOVERY--
SF DISCOVERY
Disclose if expect to offer expert opinion[C.C.P.§2034.210]
Treating physicians should be disclosed if expect to offer testimony in the form of an expert opinion though a declaration many not be required if they are not "retained"
Schreiber v. Estate of Kizer(1999), 22 Cal.4th 31 [ treating physician is not "retained" just because he gives expert opinion testimony and, if not retained, a declaration would not be required]
Kalabra v. Gray (2002), 95 Cal.App.4th 1416 [reservation of rights was failure to disclose by name and address resulting in exclusion order and nonsuit aff'd; suggests in dictum that a declaration may never be required for a treating physician but that disclosure is always required]
Hurtado v. Western Med. Ctr.(1990), 222 Cal.App.3d 1198 [treating physician disclosed because may ask for opinion at trial; no duty re declaration or production at depo]
Huntley v. Foster (1995), 35 Cal.App.4th 755 [expert witness declaration not required for treating physician to give opinion]
Gotschall v. Daley (2002)96 Cal.App.4th 479 , 116 Cal.Rptr.2d 882 [In response to a demand for experts, Plaintiff referred to all treating physisicians without naming them. The trial court found the lack of specificity in naming treating physicians constituted an improper disclosure of expert witnesses and dismissed assault and battery action based on lack of expert to establish causation due to failure to properly disclose. Plaintiff sought to set aside dismissal and to augment expert witness disclosure. Trial court granted motion but appellate court reversed. Relief from dismissal based on mandatory provisions of 473(b) attorney error reversed because failure to disclose properly was only a serious error in handling case and not equivalent to default that would justify mandatory relief due to attorney fault under CCP 473(b).
Experts designated by others & deposed can be called [C.C.P. §2034.310]
Powell v. Superior Court (1989), 211 Cal. App. 3d 441 [Trial court rev'd for prohibiting Plt from calling expert disclosed by Def and deposed by Plt but not disclosed by Plt; former C.C.P. §2034(m)(1) now C.C.P. §2034.310 clear wording followed; Rutter Group analysis and application of Gallo case rejected]
County of Los Angeles v. Superior Court (1990), 222 Cal.App.3d 647 [can withdraw expert if not deposed; opponent cannot designate as own expert]Adopting other party's experts by general reservation of rights improper
Fairfax v. Lords (2006) , 138 Cal.App.4th 1019. In a medical malpractice case where expert opinion on the standard of care was critical, the trial court and jury verdict was reversed for failure to grant a motion in limine to exclude defendant's expert when defendant failed to disclose "simultaneously" in accord with current C.C.P.§2034.260(b).
Prior to the disclosure date, defendant Lords had not retained an expert. "Lords' document identified no retained witnesses, stating instead that he 'hereby gives notice that he is not designating any retained experts for the first exchange of expert witness information.' He went on to state, however, that he 'expressly reserves the right to designate experts in rebuttal to [Farifax] designations.' Lords did specifically list 26 treating physicians and other healthcare professionals who had examined or rendered treatment to Fairfax, but did not state that he expected any of them to testify. Instead, he merely stated that he also "reserve[d] the right to call [them] as expert witnesses."
20 days after the initial disclosure defendant disclosed two experts. Because the initial disclosure was improper ["Lords' initial expert witness exchange did neither of the things required by subdivision (f) -- it neither listed any experts that he "expected" to call as witnesses, nor did it state that he had no present intention to offer expert testimony"], a supplemental disclosure was not available
Gallo v. Peninsula Hospital(1985), 164 Cal.App.3d 899,903 ["A general 'reservation of rights' to call the other party's witnesses is not the type of disclosure envisioned by the statute." Allowing testimony of expert disclosed by codefendant on the basis of such "reservation" was error despite immediate notice of intent to call when codefendant settled]
See also e.g. Plunkett and Paxton cases re "retained" expert
Kalabra v. Gray (2002), 95 Cal.App.4th 1416 [general reservation without specific names and addresses is insufficient designation]
Gotschall v. Daley (2002)96 Cal.App.4th 479 , 116 Cal.Rptr.2d 882 [physicians have to be named]
Variation from statutory scheme [C.C.P. §2034.250]
Kalabra v. Gray (2002), 95 Cal.App.4th 1416 [providing information in response to other discovery is not substantial compliance with expert discovery requirements]
St. Mary Medical Center v. Superior Court (1996), 50 Cal.App.4th 1531 [Tr.Ct denial of limited depo of retained expert who had submitted declaration in opposition to summary judgment motion rev'd as abuse of discretion; trial court believed C.C.P. §2034 was exclusive]
Zellerino v. Brown (1991), 235 Cal.App.3d 1097 [statute provides for variation and defective demand is not void ab initio; protective order may vary disclosure from statute. St. Vincent case not controlling ]
County of Los Angeles v. Superior Court (1990), 224 Cal.App.3d 1446,1456 [Dictum re limitation on court allowing earlier disclosure citing St. Vincent Med.Ctr under prior similar law; Per Sanders, Scotsman, Swartzman analysis: def Dr. not disclosed as expert; opinion not a factor and not relevant; too early for forced election ]
St. Vincent Med. Ctr. v. Superior Court(1984), 160 Cal.App.3d 1030 [Tr.setting conference. form order required disclosure earlier than expert disclosure statute. Modification of statute by local court form order invalid and not basis for preclusion. Statute gives power to extend but not shorten time. NB C.C.P. §2034.250 provides broad protective order powers including the express power to set the exchange date earlier or later]
Hernandez v. Superior Court (2003), 112 Cal.App.4th 285, 297 [tr ct rev'd when unilateral disclosure ordered in case management conference order; "Thus, the statute provides for an earlier simultaneous, mutual exchange, but it does not permit a unilateral exchange. (See § 2034.230, 250; see also, § 2019.010.) Trial courts may not adopt procedures that conflict with any statute.]
NOTE: disclosure of experts may be considered a waiver of privileges. See below and see privlege outlines
If not deposed, can withdraw expert and retain as consultant
Shooker v. Superior Court (Winnick) (2003) 111 Cal. App. 4th 923; 4 Cal. Rptr. 3d 334. [Expert witness designation may be withdrawn prior to disclosure of privileged material to avoid waiver of privilege. The mere designation of an intent to call a party as an expert witness pursuant to C.C.P.§2034 is not a waiver of the attorney-client privilege. The Court of Appeal issued its writ holding “... the designation of a party as an expert trial witness is not in itself an implied waiver of the party's attorney-client privilege. 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.”]
County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647 [noticed motion not required to withdraw disclosed expert; can withdraw previously designated expert for tactical reasons and retain as consultant; opposing counsel cannot contact consultant
Williamson v. Superior Court(1978), 21 Cal.3d 829 [cannot suppress evidence but can withdraw expert & retain as consultant]
Kennedy v. Superior Court (1998), 64 Cal.App.4th 674 [entitled to depo & report as condition for IME even if withdrawn as expert]
Powell v. Superior Court (1989), 211 Cal.App.3d 441[not if expert deposed per (i)]
DECLARATIONS
RE EXPERTS [C.C.P.§2034.210(b); parties, employees
& retained experts]
"Retained" for purpose of forming and expressing an opinion in anticipation of litigation OR in preparation for trial
Schreiber v. Estate of Kizer (1999), 22 Cal.4th 31, 989 P.2d 720 [Schreiber establishes that the determination of whether a treating physician is "retained" is based on the "context in which he became familiar with the injuries". Prior cases were distinguished or overruled when the Court of Appeal was reversed in Schreiber. The court rejected the concept that the nature of testimony, i.e. giving expert opinion rather than testimony as percipient witness, determined whether an expert is "retained"; prior cases suggested witness need not be paid but any agreement or arrangement to testify other than as percipient witness [what observed, concluded and did] sufficed to place witness in "retained" category. ]
Plunkett v. Spaulding(1997)[distinguished & disapproved in Schreiber re finding treating physician to be "retained" expert & requiring declaration solely because he was to testify as to standard of care]
Paxton v. Stewart(1998), 68 Cal.App.4th 331 review granted 12/3/98; transferred to the Court of Appeal with directions to vacate its decision and to reconsider the cause in light of Schreiber case 3/15/2000; 995 P.2d 138, 94 Cal.Rptr.2d 2
Schreiber v. Estate of Kizer (1998) [rev'd 12/30/99; ]Treating Physicians. Generally treating physicians are not retained experts for which a declaration must be provided as a prerequisite for their rendering an expert opinion. Treating physician testifying on matters not observed may still be a "retained" expert under prior cases
Schreiber v. Estate of Kizer, 22 Cal.4th 31, 989 P.2d 720
[Expert is not "retained" merely because it renders an expert opinion; treating physicians designated as expert witnesses but declaration not submitted; trial court precluded testimony re causation on belief expert was "retained" but no declaration had been submitted; trial court allowed testimony as percipient witness: what observed, concluded and did; SC rev'd holding that the nature of testimony. i.e. expert opinion, does not make an expert a "retained" expert; rather it is the "context in which he became familiar with the injuries"; RD experts by definition give expert opinions. Huntley and Hurtado cases cited with approval; the SC reached "The conclusion that treating physicians generally are not experts 'retained'...." for expert declaration purposes. The SC noted the "near impossible task of determining whether an expert witness treating physician is providing percipient or opinion testimony."]Fairfax v. Lords (2006) , 138 Cal.App.4th 1019. In a medical malpractice case where expert opinion on the standard of care was critical, the trial court and jury verdict was reversed for failure to grant a motion in limine to exclude defendant's expert when defendant failed to disclose "simultaneously" in accord with current C.C.P.§2034.260(b).
Lords did specifically list 26 treating physicians and other healthcare professionals who had examined or rendered treatment to Fairfax, but did not state that he expected any of them to testify. Instead, he merely stated that he also "reserve[d] the right to call [them] as expert witnesses."
20 days after the initial disclosure defendant disclosed two experts. Because the initial disclosure was improper ["Lords' initial expert witness exchange did neither of the things required by subdivision (f) -- it neither listed any experts that he "expected" to call as witnesses, nor did it state that he had no present intention to offer expert testimony"], a supplemental disclosure was not available
Kalabra v. Gray (2002), 95 Cal.App.4th 1416 [Plt had "reserve[d] the right to call as potential experts any and all [of her] past or present examining and/or treating physicians ...." ; failure to designate by name and address was fatal; subpoena of treating physicians was not permitted absent the designation; preclusion of expert and nonsuit aff'd.; p.1423 "... treating physicians are not "retained experts" within the meaning of section 2034, and no expert declaration is required when a party intends to call a treating physician for the purpose of eliciting expert testimony; it is sufficient if a treating physician is identified by name and address in the proponent's designation of expert witnesses. Where, as here, the treating physicians are not listed or identified by name but simply referred to in the designation as "all past or present examining and/or treating physicians," there has been no compliance with the letter or the spirit of section 2034, and the trial court acts within its discretion when it excludes expert testimony by the non-designated doctors."]
Paxton v. Stewart(1998),68 Cal.App.4th 331 review granted 12/3/98[prohibit std. of care testimony when treating physician disclosed and stated would testify on liability, causation and damages]
Schreiber v. Estate of Kizer (Ct.App.1998) rev'd [causation testimony is beyond percipient testimony; rejects and distinguishes Hurtado, Huntley and Plunkett; Reversed by S Court 12/30/99]
Plunkett v. Spaulding(1997), 52 Cal.App.4th 114 [ If opinion offered is that arrived at as a treating physician (e.g. diagnosis & prognosis), then not retained to form opinion for litigation; if beyond that (e.g. std. of care), doctor is " retained" and consents to go beyond treatment role and to be factor in lawsuit. Supreme Court disapproved "To the extent Plunkett concluded a treating physician could never, regardless of the manner in which he obtained the factual basis of his opinion, testify as to standard of care without an expert witness declaration...."]
Huntley v. Foster(1995), 35 Cal.App.4th 755 at p. 754 [ Tr.Ct. rev'd for limiting testimony to complaints, history & exam and precluding testimony re prognosis, diagnosis, causation of injuries, duration and reasonableness of bills. "A treating doctor is not a retained expert for purposes of section 2034."; can testify in PI case re prognosis; requiring analysis of testimony would violate absolute WP; Cf. standard of care testimony]
Hurtado v. Western Med. Ctr.(1990), 222 Cal.App.3d 1198 [treating physician disclosed because may ask for opinion at trial; no duty re declaration or production at depo]
CONTENTS
CASES
CASE OUTLINE
TOP
STATUTORY
OUTLINE
CALIFORNIA
DISCOVERY
SF DISCOVERY
Declaration not required for "Percipient" witness
Huntley v. Foster 35 Cal.App.4th 755 at p.756 [fact witness; not given info by employing party; acquires info from personal observation; treating physician even if giving expert opinion]
Hurtado v. Western Med. Ctr (1990), 222 Cal.App.3d 1198 [Acquires info from personal observation; not retained for purpose of forming opinion; disclosed because may ask for opinion; expert treated as fact wit; no duty re declaration or prod at depo]
Paxton v. Stewart(1998),68 Cal.App.4th 331 review granted 12/3/98
Plunkett v. Spaulding (1997), 52 Cal.App.4th 114 [would not have required declaration for testimony by treating physician re facts, diagnosis & prognosis; Supreme Court disapproved re requiring declaration for treating physician]
Kalabra v. Gray (2002), 95 Cal.App.4th 1416 [declaration not required for treating physician but must designate by name and address if calling as expert witness]Contents of declaration [§2034(f)(2)]
Expert qualifications
General substance of testimony, "brief narrative statement"Fair notice of subject areas & opportunity to depose
Bonds v. Roy (1999), 20 Cal.4th 140 [Exclusion of testimony aff'd on appeal. Expert disclosed on damages clearly limited testimony to such in depo, then was offered on std of care. Declaration must fully comply with the five separate content requirements of 2034(f)(2). Inadequate description = no disclosure]
Paxton v. Stewart(1998), 68 Cal.App.4th 331 review granted 12/3/98 [disclosure of testimony re liability, causation and damages was insufficient notice re std. of care testimony]
Schreiber v. Estate of Kizer (1998) rev'd [One word "causation" sufficient disclosure for subject matter; rev'd on issue of whether expert was "retained"]
Casteneda v. Bornstein (1995)36 Cal.App.4th 1818 disapproved in Bonds [trial court rev'd for excluding expert for failing to adequately disclose causation testimony: "negligent care leading to injury"; Court held only a failure to provide a declaration and not its inadequacy could be a basis for exclusion per C.C.P. §2034(j), but that approach was disapproved in Bonds]
Martinez v. City of Poway(1992) disapproved in Bonds [Trial court denied motion to augment re accident reconstruction testimony & court of appeal found denial proper; motion in limini granted prohibiting such expert testimony; trial court rev'd on grounds defective description of testimony does not permit exclusion under C.C.P. §2034(j)]
Kennemur v. State of California(1982), 133 Cal.App.3d 907, 916,919 [Prior law 2037.3 with same language; "general substance of testimony" includes specific areas of investigation, , opinions, and reasons for opinions.]]Representations & advice re hourly fee
Exclusion of retained expert for "unreasonable" failure to provide declaration C.C.P. §2034.30(b)
Bonds v. Roy(1999), 20 Cal.4th 140 [Inadequate declaration = no declaration. Trial court power to exclude if grossly defective declaration fails to provide fair notice of the subject area of testimony; flagrant disregard of requirements is the equivalent of a failure to submit; court of appeal observed that the "wholly inadequate" and "misleading" declaration was worse than no declaration at all; limited scope of testimony was confirmed at deposition]
Paxton v. Stewart(1998), 68 Cal.App.4th 331 review granted 12/3/98 [treating physician]
Schreiber v. Estate of Kizer (Court App.1998) rev'd [treating physicians precluded from testifying as to causation when no narrative statement; rev'd on retention issue]
Plunkett v. Spaulding (1997), 52 Cal.App.4th 114 [disapproved in Schreiber for precluding treating physician testimony on standard of care without declaration]
N.B. Motions to exclude often made during trial; see Easterby, Bonds and Plunkett cases.Minor deficiencies may not justify exclusions of expert due to inadequate declaration per §2034.300;
Bonds v. Roy(1999), 20 Cal.4th 140 [Pro forma inadequate declaration = no declaration. Court disapproves of Castenada and Martinez. Appellate court had observed that exclusions for minor shortcomings or defects that might easily be corrected by deposition testimony should not cause exclusion]
Jones v. Moore (2000), 80 Cal.App.4th 557 [Expert limited to deposition testimony despite broader declaration; Opportunity to depose expert allows for limitations, clarification and augmentation of testimony]
Paxton v. Stewart(1998), 68 Cal.App.4th 331 review granted 12/3/98 [treating physicians excluded re std. of care when disclose testimony re liability, causation and damages; insufficient notice ]
Casteneda v. Bornstein (1995), 36 Cal.App.4th 1818 at p.1828 [trial court rev'd for excluding expert for failing to disclose causation subject matter; "matters leading to death" sufficient to testify re causation]
Martinez v. City of Poway (1992), 12 Cal.App.4th 429 [trial court rev'd for excluding expert due to inadequate declaration; motion to augment denied and motion to exclude granted by trial court Court of Appeal held cannot exclude due to inadequacy of declaration; only failure to submit; ]
Deficiency may be cured by deposition testimony or by notice and opportunity to depose
Such alternative would appear to circumvent and nullify the statutory requirements and conditions of a motion to augment [C.C.P. §2034.610] as well as those for tardy disclosure or supplemental disclosure. The decisions have not addressed that issue.
Kennemur v. State of California (1982) 133 Cal.App.3d 907, 184 Cal.Rptr. 393. Court interprets comparable exclusion provision for failure to disclose in prior law, C.C.P. §2037.3. "In our view, this means the party must disclose either in his witness exchange list or at his expert's deposition, if the expert is asked, the substance of the facts and the opinions which the expert will testify to at trial."
Easterby v. Clark (2009) 171 Cal.App.4th 772, 778. Quoting the above from Kennemur the court added. “The court was careful to note that the defendant "was entitled to rely on [the expert's] disclaimer [that he would not testify on causation] until such time as appellant disclosed that [the expert] had conducted a further investigation and had reached additional opinions in a new area of inquiry." Trial Court reversed for excluding expert opinion by surgeon on causation when counsel advised of such testimony by letter 3 months before trial and after the expert had been deposed. The court also held the expert was not a “retained” expert; thus, eliminating the need for any declaration re substance of testimony.
Dozier v. Shapiro (2011) , Cal.App.4th The court cited Kennemer for the interpretation of the current C.C.P.§ 2034.260 (b)(1), (2).) stating “The responding party must also provide a narrative stating 'the general substance of the testimony which the witness is expected to give.' As interpreted by case law, this requires a party to 'disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both.'"
Treating physician in med mal case precluded from testifying as expert on standard of care. Judgment for defendant affirmed. Treating physician who later forms opinion based on new information provided by counsel becomes a “retained” expert who must be disclosed and for whom an expert declaration must be provided.
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CASE OUTLINE
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TABLE OF SUBSEQUENT DISCLOSURE STATUTES
|
TARDY
|
AUGMENTATION |
|
|
Circumstances -"fail to submit" info on "date specified" |
Circumstances -timely exchange of expert witness info |
Circumstances -"party who engaged in the exchange" |
|
Motion Timing - "sufficient time in advance" of §2024 disc cutoff |
Motion timing - "sufficient time in advance" of §2024 disc cutoff |
Submit
Timing
Make available for depo even if after cutoff |
|
Declaration "showing" meet and confer attempt re "each issue" |
Declaration "showing" meet and confer attempt re "each issue" |
NONE |
|
FACTORS -Extent of opposing party reliance on absence of list |
FACTORS -Extent of opposing party reliance on absence of list |
NONE |
|
FINDINGS re opposing party |
FINDINGS re opposing party |
NONE |
|
Conditions of order - make expert available for depo "immediately" |
Conditions of order - make expert available for depo "immediately" |
Conditions - make expert available for depo "immediately" |
|
SANCTIONS FOR MOTION |
SANCTIONS FOR MOTION |
C.C.P. §2034.280
Party engaged in initial exchange
Submit within 20 days of initial exchange
Subject is to be covered by designated adverse witness
Party has not previously retained an expert on that subject
Provide witness declaration per (f)(2)
Produce discoverable reports and writings
Make witness available for depositionCompliance with intial disclosure requirement
Fairfax v. Lords (2006) , 138 Cal.App.4th 1019. In a medical malpractice case where expert opinion on the standard of care was critical, the trial court and jury verdict was reversed for failure to grant a motion in limine to exclude defendant's expert when defendant failed to disclose "simultaneously" in accord with current C.C.P.§2034.260(b).
Defendant "Lords did specifically list 26 treating physicians and other healthcare professionals who had examined or rendered treatment to Fairfax, but did not state that he expected any of them to testify. Instead, he merely stated that he also "reserve[d] the right to call [them] as expert witnesses."
20 days after the initial disclosure defendant disclosed two experts. Because the initial disclosure was improper ["Lords' initial expert witness exchange did neither of the things required by subdivision (f) -- it neither listed any experts that he "expected" to call as witnesses, nor did it state that he had no present intention to offer expert testimony"], a supplemental disclosure was not availableNot alternative to motion to augment
Richaud v. Jenning(1993), 16 Cal.App.4th 81 [Expert witness properly excluded at trial; mere service of improper supplemental disclosure insufficient; absent motion to augment, trial court lacks authority to allow testimony]
Basham v. Babcock(1996), 44 Cal.App.4th 1717 [Not substitution of expert on same subject; Trial Court rev'd. Can't testify on same subject matter as original since original expert was "previously retained...on that subject"; radiologist to replace orthopedist on preexisting back injury issue; original orthopedist did not testify at all and went "on vacation" which prevented plaintiff from calling]
See below re Dickinson v. Howen for using the the tardy disclosure provision to substitute expertsConfine to new matter [or exclude testimony] of improperly designated supplemental expert
Basham v. Babcock(1996), 44 Cal.App.4th 1717, 1724
AUGMENTATION
[C.C.P. §2034.610]
Bonds v. Roy(1999), 20 Cal.4th 140, 149 [request to expand testimony on last day of trial afforded no practical opportunity to depose expert or offer rebuttal and trial court's exclusion was proper]
Kalabra v. Gray (2002), 95 Cal.App.4th 1416 [oral motion to augment made at trial denied re treating physicians to which a "reservation" of right to call had been made; not issue on appeal where nonsuit aff'd.]
Plunkett v. Spaulding (1997), 52 Cal.App.4th 114 [rev'd for not granting motion to augment made during trial to call treating physician after excluding testimony for lack of "retained" expert declaration; trial court had found that "exceptional circumstances" were not shown; rev'd because failed to consider all statutory factors and only focussed on timing]
Casteneda v. Bornstein (1995) 36 Cal.App.4th 1818 at p.1830 [inadequate disclosure in declaration may justify augmentation by opponent; trial court rev'd for excluding expert for failing to disclose causation subject matter (disapproved in Bonds)]
Dickinson v. Howen(1990), 220 Cal.App.3d 1471,1478 [ No prejudice from substituting one expert for another when new expert testifying on same subject and opposing counsel's needs accommodated.]
Martinez v.City of Poway (1992), 12 Cal.App.4th 429 [Dictum re proper to deny augmentation when 22 day delay in making motion & hrg 2 weeks before trial; exclusion at trial rejected since some disclosure was made, however inadequate]
Sprague v. Equifax Inc. 166 Cal.App.3d 1012 [prior law; motion to call undisclosed expert made during trial denied; delay in acting; reliance on other defendants to provide expert testimony was a deliberate tactic and not excusable neglect]
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TARDY
DISCLOSURE [C.C.P. §2034.710]
Mistake, inadvertence, or excusable neglect
Plunkett v. Spaulding(1997),52 Cal.App.4th 114 [Honest mistake of law where problem is complex and debatable is mistake, inadvertence or excusable neglect allowing late disclosure; trial court rev'd for denial of augmentation motion]
Schreiber v. Estate of Kizer (Ct.App.1998) rev'd on "retained" expert issue [trial court should be liberal; abuse of discretion to reject motion if honest mistake of law]Prejudice
Gallo v. Peninsula Hospital(1985) [ prior law. Adopting co-def. disclosure by ref.+ immediate notice of intent to call when co-def. settled insufficient diligence when prejudice from taking depo during trial w/little prep time on technical subject when expert long known to defendant]
Dickinson v. Howen(1990), 220 Cal.App.3d 1471,1478 [ No prejudice from substituting one expert for another when new expert testifying on same subject and opposing counsel's needs accommodated. Prejudice comes from inability to prepare or respond.]
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WITNESS DESIGNATED BY OTHER PARTY[C.C.P. §2034.310]
Witness designated by another party and deposed per (a)
Powell v. Superior Court (1989), 211 Cal.App.3d 441 [writ issued to permit plaintiff to call deposed defense medical expert per 2034(m)even though not disclosed by plaintiff as expected expert testimony]
Alef v. Alta Bates Hospital (1992), 5 Cal.App.4th 208 [deposition of opponent's expert used]
Gallo v. Peninsula Hospital(1985), 164 Cal.App3d .899 [case decided under prior law; general reservation of rights to call expert disclosed by others disapproved]
Kalabra v. Gray (2002), 95 Cal.App.4th 1416 [Plt reservation of right to call unnamed treating physicians rejected]
IMPEACHMENT
TESTIMONY [C.C.P. §2034.310]
Calling into question a witness' veracity
Gallo v. Peninsula Hospital(1985), 164 Cal.App.3d 899
Stark v. City of Los Angeles (1985), 168 Cal.App.3d 276
Fish v. Guevara (1993), 12 Cal.App.4th 142Not expressing contrary opinion
Collin v. Conn. Valley Arms(1982), 137 Cal.App.3d 815, 821
Sprague v. Equifax Inc.(1985), 166 Cal.App.3d 1012, 1040
Kennemur v. State of California(1982), 133 Cal.App.3d 907 [impeachment is not the same as rebuttal]
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DUTY TO PRODUCE A RETAINED EXPERT PER NOTICE: "RETAINED" & FEE TENDERED
C.C.P. §2034.460
True v. Shank (2000), 81 Cal.App.4th 1250, [Expert witness must be produced for deposition pursuant to notice even if the expert fee does not accompany the notice. Plaintiff failed to do so and the trial court granted a motion in limini to exclude the expert resulting in judgment for defendants. Affirmed. decision appears to be contrary to C.C.P. §2034.460 requiring production of a retained expert if notice is accompanied with a tender of the fee. Note the struture of the sections were changed with the 2005 reorganization which tends to inadvertently undermine the reasoning of the court in True v. Shank. ]
Hurtado v. Western Med. Ctr.(1990), 222 Cal.App.3d 1198 [no duty to produce treating physician designated as expert if not retained]Subpoena treating physician
Hurtado v. Western Med. Ctr.(1990), 222 Cal.App.3d 1198
Sanctions for failure to appear
See below re exclusion of expert testimony
Brun v. Bailey (1994), 27 Cal.App.4th 621[proper to consider sanctions against expert on expert's motion for fees per 2025; Reconsideration of order compelling attendance]
FEES [Note numerous amendments to the predecessor of C.C.P. §2034.430 in 1990,'92,'93,95]Motion for fees
By expert per C.C.P. §2025 protective order after deposition
Brun v. Bailey(1994), 27 Cal.App.4th 621, 650
Amount: Sound discretion of court
Rancho Bernardo Development Co.v. Superior Court(1992), 2 Cal.App.4th 358 [Higher fee for depo & trial appropriate and common; tr.ct. determination of reasonableness upheld re normal $200 fee and $250 fee for trial & depo per schedule; regardless of fee to client, charge for depo must be reasonable]
Marsh v. Mountain Zephyr Inc.(1996), 43 Cal.App.4th 289,303[Customary fee, though regularly and frequently paid, may not be reasonable fee within meaning of statue for payment to depose expert]Treating physician fees not recoverable costs
Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal. App. 4th 592;3 Cal. Rptr. 3d 593;
Class certification denied in action for medical damages of 50-100,000 persons. Defendant sought recovery of costs ($15-31,000 each) against 8 plaintiffs. after summary judgment based on Statute of Limitations
Treating physician. fees paid for deposition of per CCP §2034 not recoverable costs as ordinary witness fees. Tr. Ct allowed $35/day for treating physician depo and denied recovery of fees required to be paid per CCP §2034 since not designated as recoverable cost by statute as ordinary witness fee. Aff'd. on de novo review.
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Compensation of expert to show bias
Mowry v. Superior Court (1962), 202 Cal.App.2d 229, 244. [ independent expert appraiser hired to appraise and submit affidavit; may be called as expert; no longer employed by party; "... a copy of the contract of employment of this appraiser by the district. This contract, if written, or the substance of conversations, if oral, will be calculated to disclose the compensation being paid the appraiser. Such information is clearly in aid of cross-examination to test credibility. Such cross-examination is proper."]
Evid.Code §722(b) compensation in case
Brokopp v. Ford Motor Co. (1977), 71 Cal.App.3d 841
Compensation in other cases
Allen v. Superior Court (Sierra) (1984) 151 Cal.App.3d 447 , 198 Cal.Rptr. 737 [Document production per subpoena to def med expert rev'd as too intrusive and abuse of discretion absent showing that substantially equivalent information can't be obtained via depo questions or other less intrusive means. Dr declaration re production burden and would resign if ordered to produce docs; Motion for protective order denied by tr ct.; Expert ordered by tr ct to produce Plt's exam & billing records, expert's source of income from def atty or ins co, % of income from def medical, expert's depo for 5 yrs in def med cases; Writ issued to vacate order for production; Expert may be asked at deposition re % & amount derived from def med; but need not learn details of his billing and accounting, specifics of his prior testimony and depositions, exact info re number of cases and amounts of compensation paid.]
Stony Brook I Homeowners Ass'n. v. Superior Court (Diehl) (2000), 84 Cal.App.4th 691 , 101 Cal.Rptr.2d 67 [subpoena sought litigation related billings as to Plt & Def from med expert who had a record of faulty or imprecise recollection.; mot to quash re overly broad, burdensome and invasion of privacy of expert and patients denied but sdt modified; med. expert ordered to produce summary of total number of patients and total billings for each side over 4 yr. period; when expert sought ex parte relief due to burden, expert was ordered to allow access to records by temp personnel hired by Plt to abstract info; ct app noted Plt was "entitled to know "what percentage of ... practice involves examining patients for the defense and how much compensation he derives from defense work." but precise information as to the number of patients and amount of compensation was too burdensome and intrusive into expert's privacy; the court ordered numerical estimates to be provided at the expert's deposition of the number of exams etc. and total compensation derived from Plt and Def. and cut the period to 3 yrs from 4; it also allowed the expert to hire temporary personnel, at plaintiff's expense, to abstract the information and shift the burden and expense to the party seeking the information. The court required estimates by oral testimony rather than the more accurate records which might have been expensive to compile. In addition, the expert threatened to resign and the plaintiff would be left without an expert at trial.]
Constitutional Right to Privacy: See Privacy Case Outline
Physician financial privacy
Allen v. Superior Court(1984), 151 Cal.App.3d 447 at p.453 [court must consider less intrusive means to accomplish legitimate objectives of discovery of bias; depo questions might suffice without burdensome document production
Forced election ? Cf.5th amendment rights of Plt.& forced elec. thereofStony Brook I Homeowners Ass'n. v. Superior Court (Diehl) (2000), 84 Cal.App.4th 691 , 101 Cal.Rptr.2d 67 [precise documents showing billins need not be produced if expert testifies re % or practice for each side and total compensation]
Patient
Allen v. Superior Court(1984), 151 Cal.App.3d 447 at p.453
Stony Brook I Homeowners Ass'n. v. Superior Court (Diehl) (2000), 84 Cal.App.4th 691 , 101 Cal.Rptr.2d 67 [recognized though not issue in case on appeal]
Work Product & Attorney-Client issues:
See Case Outline on Work Product and Attorney-Client Privilege. Commentary: It is common practice for lawyers to assume and concede that communications with experts are not protected despite extensive legal authority to the contrary. That position finds support in dictim in some cases. However, both attorney-client and work product objections may be applicable. When the expert becomes a factor in the lawsuit, the work product protection is affected but not waived in toto or exempt. Note the whole purpose of the work product protection is to enable a lawyer to investigate the good and the bad without fear that his opposing counsel will gain unfair advantage by reviewing that investigation and work product. The cases should be examined to see what was required to be disclosed over an objection of work product or attorney-client when an expert is designated to testify. The opinions and bases therefore are discoverable but the extent and scope of that exception or waiver may be subject to dispute. Attorney-client, if applicable, would not necessarily be affected unless the communication is waived. Despite the above, in discussing matters with an expert or otherwise investigating a case with the aid of an expert who may testify, counsel should consider the possibility that everything will be discoverable.
Rico v. Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51 [rev granted 6/9/04] [The court found attorney and paralegal notes regarding the attorney - expert conference to be absolute work product and the privilege was not waived by designation of the expert. However, the court made the following comment: "Moreover, even if the expert's communication is somehow protected, any privilege is lost once the expert is called to testify at trial. During cross-examination, the opposing party is entitled to delve into all matters relied on or considered by the expert in reaching his conclusions." [citing People v. Milner{Slip Opn. Page 9}Later the court observed: "Under Code of Civil Procedure section 2034, the attorney's work product privilege does not apply to an expert's pretrial statements once that expert is designated as a witness at trial.[citations]. The statute, however, only pertains to various items including the expert's reports, writings, and declarations. The provision does not require the production of an attorney's personal notes concerning the expert's pretrial statements. While the statute specifically requires that the item be "discoverable," an attorney's work product is privileged and, hence, not discoverable. {Slip Opn. Page 15"}]
Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) Data reveal to expert in consultative capacity and not considered in forming opinion need not be produced over valid privilege and relevancy objections and need not be produced pursuant to FRCP Rule 26(a)(2)(B). Dual and simultaneous role of expert as expert witness and expert consultant recognized citing N.D. Ca. case:
“FN13.Id. The extent to which Rule 26(a)(2)(B) affects materials considered by a dual-purpose expert who serves as both testifying expert and consulting expert has not been addressed in this Circuit. However, the Court is guided by the uniform rulings of district courts elsewhere that have decided the question. See, e.g., S.E.C. v. Reyes, No. C 06-04435, 2007 WL 963422, at *1 (N.D.Cal. Mar. 30, 2007) ("A question thus arises about whether, and to what extent ... privilege applies when an expert alternately dons and doffs the "privileged hat" of a litigation consultant and the "non-privileged hat" of the testifying witness. In other words, does a litigant forfeit the privilege that would otherwise attach to a litigation consultant's work when he offers that expert as a testifying witness? Every court to address this "multiple hats" problem has concluded that an expert's proponent may still assert a privilege over such materials, but only over those materials generated or considered uniquely in the expert's role as consultant.") (citing cases). The law on this point is especially developed in the Second Circuit, and specifically, in a line of cases decided in the Southern District of New York. See, e.g., Braspetro, 2002 WL 15652, at *8;B.C.F. Oil, 171 F.R.D. at 60;Detwiler v. Offenbecher, 124 F.R.D. 545, 546 (S.D.N.Y.1989); Beverage Mktg v. Ogilvy & Mather Direct Response, Inc., 563 F.Supp. 1013, 1014 (S.D.N.Y.1983). While the latter two cases were decided prior to the advent of Rule 26(a)(2)(B), they serve as the basis for the principle established in B.C.F. Oil and reiterated in Braspetro--that an expert may "wear two hats," one as a testifying expert, and one as a consulting expert, and documents disclosed to the expert which have no relation to the testifying expert role need not be produced under Rule 26(a)(2)(B).
Consider the following variationsConsultant / Undeclared potential expert witness
Retained / not retained
Treating physicianSchreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 989 P.2d 720 [identity and opinions are not privileged; "they are subject to no special discovery restrictions"]
Potential expert
Party's expert [employee / independent contractor]
Expert who has submitted declaration in pretrial proceedings [see Mowry v. Superior Court, supra]
Declared expert
Withdrawal of disclosed experts
Assuming discovery permissible, what is scope of discovery?Opinions of expert and the reasons and bases therefore: what done, observed, tests, conclusions
Scope or limitations imposed by counsel
Communications, analysis or opinions of counsel
Mowry v. Superior Court, supra
Present opinion irrelevant unless designated as expert witness
County of L.A. v. Superior Court(Martinez)(1990),224 Cal.App.3d 1446, 1455 [Def. Dr.not required to give current opinion unless and until designated as expert ; rationale: not a factor in law suit. Inquiry into impressions and reasons for action or lack thereof at the time medical procedure performed is appropriate]
Swartzman v. Superior Court (1964), 231 Cal.App.3d 195 [Deposition of expert not permitted. When reasonably certain expert will give opinion as an expert witness, it is relevant and subject to discovery. Mutuality of disclosure required.]
Scotsman Mfg. Co. v. Superior Court (1966), 242 Cal.App.2d 527 [expert report not subject to discovery if given in capacity of advisor to attorney; report of expert witness confined to information and opinion that is subject of testimony is discoverable]
Sanders v. Superior Court (1973), 34 Cal.App.3d 270 [disclosure by protective order per "Sanders Motion" prior to current statututory provision]
Duty of Investigation to respond to discovery: inquiry to experts
See Outlines re interrogatories, requests for admissions etc.
Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427.[Sanctions imposed for party's refusal to obtain information from its own expert regarding expert's qualifications on grounds information was not known to party and party would have to pay expert to obtain information]
Tehachapi-Cummings County Water Dist. v. Superior Court (1968) 267 Cal.App.2d 42, 46. [WP asserted in response to interrogatory on technical question. Expert opinions or reports are not being sought; only the facts supporting a contention regardless of source or document from which obtained.]
Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 322.[may have to consult experts to respond to request for admission.]
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NOTE: Prior to July 1, 1987, former Sec.2037 et seq governed expert disclosure containing similar provisions but some significant differences. Prior to 1979, case law governed expert discovery.
EXCLUSION OF EXPERT OPINION: if "unreasonably" fail to [§2034.300]Failure to list expert witness
Fairfax v. Lords (2006) , 138 Cal.App.4th 1019. In a medical malpractice case where expert opinion on the standard of care was critical, the trial court and jury verdict was reversed for failure to grant a motion in limine to exclude defendant's expert when defendant failed to disclose "simultaneously" in accord with current C.C.P.§2034.260(b).
Plaintiff disclosed an expert and "reserved" its right to call treating physicians. Prior to the disclosure date, defendant Lords had not retained an expert. "Lords' document identified no retained witnesses, stating instead that he 'hereby gives notice that he is not designating any retained experts for the first exchange of expert witness information.' He went on to state, however, that he 'expressly reserves the right to designate experts in rebuttal to [Farifax] designations.' Lords did specifically list 26 treating physicians and other healthcare professionals who had examined or rendered treatment to Fairfax, but did not state that he expected any of them to testify. Instead, he merely stated that he also "reserve[d] the right to call [them] as expert witnesses."
20 days after the initial disclosure defendant disclosed two experts. Because the initial disclosure was improper ["Lords' initial expert witness exchange did neither of the things required by subdivision (f) -- it neither listed any experts that he "expected" to call as witnesses, nor did it state that he had no present intention to offer expert testimony"], a supplemental disclosure was not availableKalabra v. Gray (2002), 95 Cal.App.4th 1416 [treating physicians not listed by name and only reservation of right to call mentioned; witnesses excluded, nonsuit; aff'd.; plaintiff attempted to subpoena witnesses
Province v. Center for Women's Health &Family Birth(1993), 20 Cal.App.4th 1673 [tr ct rev'd for failure to limit nondisclosed expert's testimony to that of percipient witness]
Richaud v. Jenning(1993), 16 Cal.App.4th 81 [Expert witness properly excluded at trial; mere service of improper supplemental disclosure insufficient; absent motion to augment, tr ct lacks authority to allow testimony]
United Service Auto Assoc. v. Cavanaugh(1991), [late listing 3 months before trial not "unreasonable" or prejudicial; tr ct lim to rebuttal]
Cf. Kohan v. Cohan(1991), 229 Cal.App.3d 967 [§2023 monetary sanctions for misleading identification]
Rangel v. Graybar Elec. Co. (1977) 7O Cal.App.3d 943, at p. 948 [ Prior law. Judgment reversed when trial court precluded expert witness not disclosed in answer to interrogs. No wilful omission or concealment]
Gallo v. Peninsula Hospital(1985), 164 Cal.App3d .899 [case decided under prior law; general reservation of rights to call expert disclosed by others disapproved]Failure to submit expert witness declaration
Province v. Center for Women's Health &Family Birth(1993) [tr ct rev'd for failure to limit nondisclosed expert's testimony to that of percipient witness]
Gallo v. Peninsula Hospital(1985), 164 Cal.App3d .899 [case decided under prior law; general reservation of rights to call expert disclosed by others disapproved]Inadequate disclosure may be basis for preclusion sanction including motion in limini as to scope of testimony
Bonds v. Roy (1999), 20 Cal.4th 140 [misleading declaration with totally different areas of testimony, confirmation of misleading info in depo, plus use as last minute key witness is basis for exclusion or limitation; SC disapproved of earlier cases allowing lax compliance with declaration requirements]
Fairfax v. Lords (2006) , 138 Cal.App.4th 1019. In a medical malpractice case where expert opinion on the standard of care was critical, the trial court and jury verdict was reversed for failure to grant a motion in limine to exclude defendant's expert when defendant failed to disclose "simultaneously" in accord with current C.C.P.§2034.260(b).
Plaintiff disclosed an expert and "reserved" its right to call treating physicians. Prior to the disclosure date, defendant Lords had not retained an expert. "Lords' document identified no retained witnesses, stating instead that he 'hereby gives notice that he is not designating any retained experts for the first exchange of expert witness information.' He went on to state, however, that he 'expressly reserves the right to designate experts in rebuttal to [Farifax] designations.' Lords did specifically list 26 treating physicians and other healthcare professionals who had examined or rendered treatment to Fairfax, but did not state that he expected any of them to testify. Instead, he merely stated that he also "reserve[d] the right to call [them] as expert witnesses."
20 days after the initial disclosure defendant disclosed two experts. Because the initial disclosure was improper ["Lords' initial expert witness exchange did neither of the things required by subdivision (f) -- it neither listed any experts that he "expected" to call as witnesses, nor did it state that he had no present intention to offer expert testimony"], a supplemental disclosure was not availableGotschall v. Daley (2002), 96 Cal.App.4th 479 , 116 Cal.Rptr.2d 882 ["Plaintiff's declaration also stated he would be calling all treating and consulting physicians as non-retained experts, without specifically naming any of them." ..."The trial court found the lack of specificity in naming treating physicians constituted an improper disclosure of expert witnesses. Thus, section 2034 precluded the court from granting a continuance, which otherwise would have been proper. It was undisputed Dr. Gregorius's testimony was plaintiff's only means of proving causation. The court granted defendant's oral motion for dismissal based upon plaintiff's inability to establish an essential element of his case, causation, without expert testimony."
Kalabra v. Gray (2002), 95 Cal.App.4th 1416 [reservation of right to call treating physicians inadequate due to failure to disclose by name and address; witnesses excluded, nonsuit aff'd.]
Jones v. Moore (2000), 80 Cal.App.4th 557 [Brief description adequate and not basis for exclusion; Expert limited to opinions expressed at deposition despite adequate disclosure; case supports argument that deposition testimony should prevail over declaration on an exclusion motion]Castaneda v. Bornstein(1995), 36 Cal.App.4th 1818, 1828 [Tr CT rev'd for limiting testimony based on scope of narrative of general substance of testimony; Court of Appeal found statement adequate to give fair notice of causation testimony by referring to negligent care ...leading to ...injury; notice & opportunity to depose; Bonds case rejects suggestion by this court that preclusion can occur only if there is no declaration per C.C.P. § §2034(j); CT notes change in sanction provisions in legislative history]
Martinez v. City of Poway(1993), 12 Cal.App.4th 429 [Inadequate or inaccurate description not basis for exclusion; motion to augment testimony denied; in limini granted; reversed]Failure to produce "discoverable" expert reports and writings
Failure to make expert available for deposition on subjectJones v. Moore (2000), 80 Cal.App.4th 557 [assurance at deposition that expert did not have opinions and that he would advise if he later formulated such opinions was basis for precluding testimony; in effect, expert was not made available for deposition on the subject].
Waicis v. Superior Court [Expert witness excluded for repeated noncooperation in scheduling deposition + walk out; ]
True v. Shank (2000), 81 Cal.App.4th 1250 [Expert excluded when not produced for noticed depo even though expert fee not tendered with notice]Zellerino v. Brown (1991) 235 Cal.App.3d 1117 [ expert excluded & non-suit; non compliance with court order & attempt to thwart discovery]
City of Fresno v. Harrison(1984) 154 Cal.App.3d 296 [2 weeks prior to trial expert had done nothing & depo would be futile]Not unreasonable failure to produce if opponent doesn't pursue over reasonable failure of expert to be fully prepared
Stanchfield v. Hammer Toyota(1995), 37 Cal.App.4th 1495 [Def. declaration. said prepared to testify after reviewing Plt's expert's opinion; need 16 hours to complete work; not pursued until 2 weeks into trial; tr.ct. permitted testimony ; aff'd. Plt took no timely action to remedy situation; not "unreasonable" failure to make available ]
Cf. Williams v. Volkswagenwerk Aktiengesellschaft (1986), 180 Cal.App.3d 1244, 1256-7
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CASE OUTLINE
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STATUTORY
OUTLINE
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DISCOVERY
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DISCOVERY
Alternative bases for exclusion of witness
C.C.P. §§2023.010, 2023.030(c)[former subsections (a)(b)(3)] [evidence sanctions for misuse of discovery; cited in Waicis]
C.C.P. § 2025.450 [former subsection (j)(3)] [evidence sanction for failure to comply with court orders; cited in Waicis]
Zellerino v. Brown(1991), 235 Cal.App.3d 1097 [exclusion of expert for failing to comply with court order for disclosure resulted in non-suit]Lesser sanction alternative should be considered
West Hills Hospital v. Superior Court (1979) 98 Cal.App.3d 656.(Dictum re: even if sanctions are appropriate, preclusion order is too severe and party in default should be given an opportunity to disclose experts.)
People v. Douglas (1971), 15 Cal.App.3d 814 under 1272.06.
[In a condemnation action, defendant attempted to call state's right-of-way expert to testify as to value of land; trial court excluded testimony as sanction per 1272.06; court of appeal found it was prejudicial error. Defendant had not included name on list. State expert had examined land and made appraisal at least two years earlier.]Waiver of right to exclude by not seeking expert deposition
Stanchfield v. Hammer Toyota(1995), 37 Cal.App.4th 1495 [no action taken to pursue expert depo when advised expert would not be able to testify for 16 hours after opposing party's expert deposed; party did nothing then objected to testimony 2 weeks into trial]
Standing to object to testimony [§2034.300, former§2034(j)]
West Hills Hospital v. Superior Court (1979) 98 Cal. App.3d 656.[compliance with statute]
Preclusion of expert sanction inapplicable to pretrial motion
Kennedy v. Modesto City Hospital(1990), 221 Cal.App.3d 575 [Summary judgment opposed with declaration from undisclosed expert; tr ct excluded declaration and granted summary judgment; exclusion rules do not apply to evidence at pretrial motions]
Preclusion of expert opinions not given at deposition when asked
Moore v. Jones (2000), 80 Cal.App.4th 472 [expert testified at depo he had no other opinions and agreed to advise if he did further work or formed new opinions. Testimony on additional opinions was excluded though declaration was sufficient to permit it."The case before us does not turn on the adequacy of the expert witness declaration, but rather on a party's right to rely on the other party's expert's express representation that the opinions expressed during an expert deposition are the only ones that need be met at trial." ]
CONTENTS
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CASE OUTLINE
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STATUTORY
OUTLINE
CALIFORNIA
DISCOVERY
SF
DISCOVERY
UNDESIGNATED WITNESSES THAT MAY BE CALLED
TO TESTIFY [§2034.310]
Deposed Expert designated by another
Powell v. Superior Court (1989), 211 Cal.App.3d 441[writ issued to permit plaintiff to call deposed defense medical expert per 2034(m)even though not disclosed by plaintiff as expected expert testimony]
Alef v. Alta Bates Hospital (1992), 5 Cal.App.4th 208
Gallo v. Peninsula Hospital(1985), 164 Cal.App3d .899 [case decided under prior law; general reservation of rights to call expert disclosed by others disapproved]
Wimberly v. Derby Cycle Corpl (1997), 56 Cal.App.4th 618, 637 [Def could not use codefendant's expert's deposition at trial when plaintiff had not cross examined because C.C.P. §2034(f)(2)(C) includes a rep that expert will testify at trial and C.C.P. §2025(u)(4) applies to use of expert depositions at trial if notice given with deposition]Impeachment expert [e.g. falsity or nonexistence of foundational facts]
Falsity or nonexistence of fact used as foundation for opinion
Calling into question a witness' veracityGallo v. Peninsula Hospital(1985), 164 Cal.App.3d 899
Stark v. City of Los Angeles (1985), 168 Cal.App.3d 276
Fish v. Guevara (1993), 12 Cal.App.4th 142 [Not contrary opinions. Should be strictly construed to avoid circumvention of statute.]Impeachment is not a contradiction of opinion
Gallo v. Peninsula Hospital(1985), 164 Cal.App3d .899
Collin v. Conn. Valley Arms(1982), 137 Cal.App.3d 815, 821
Sprague v. Equifax Inc.(1985), 166 Cal.App.3d 1012, 1040
Kennemur v. State of California(1982), 133 Cal.App.3d 907 [impeachment is not the same as rebuttal]
Fish v. Guevara (1993), 12 Cal.App.4th 142 [ Not contrary opinions. Should be strictly construed to avoid circumvention of statute.]
Rangel v. Graybar Elec. Co. (1977) 7O Cal.App.3d 943, at p. 948 [ Prior law. Judgment reversed when trial court precluded rebuttal expert witness not disclosed in answer to interrogs. No wilful concealment or omission and witness only contacted during trial when it became necessary for rebottle.]
See Case Outline re Discovery Cutoff
Discovery cut off does not apply to new trial after a mistrial, reversal, or new trialBeverly Hospital v. Superior Court(1993), 19 Cal.App.4th 1289 [Party allowed to serve new demand and add and delete names from prior disclosure]
Province v. Center for Women's Health & Family Birth(1993), 20 Cal.App.4th 1673, 1684
Hirano v.Hirano (Cal. App. Second Dist., Div. 8;December 19, 2007) (As modified Jan.2, 2008) 158 Cal.App.4th 1. After reversal of judgment entered after dismissal for failure to prosecute and remand for a trial, discovery reopens. The prior demand for exchange of experts in the first action does not require a response in the second action.
In the first trial, experts were precluded because of non-disclosure in accord with a demand. A continuance of the first trial because of the unavailability of a party was denied and that action dismissed for failure to prosecute. The judgment based on that dismissal for failure to prosecute was reversed and the matter remanded for a new trial.
After remand, on the new date of trial, the trial court granted respondent’s motion to preclude appellant from introducing any expert testimony based upon non-compliance in the second trial with the demand made in the first trial. No new demand had been made in the second trial; but, the moving party had made a disclosure by fax. Because the appellate had no expert witnesse due to the preclusion order, the trial court granted respondent’s motion for nonsuit. The Court of Appeal reversed this judgment for improper exclusion of evidence stating as follows.
"When the prior judgment was reversed, the matter remanded and a new initial trial date set, discovery was automatically reopened. (Fairmont, supra, 22 Cal.4th at p. 250; Beverly Hospital, supra, 19 Cal.App.4th 1289.) Because neither party made a section 2034.210 demand for exchange of expert witness information in connection with the new initial trial date, neither was required to comply with section 2034.260. (West Hills, supra, 98 Cal.App.3d at p. 660.) Accordingly, the trial court erred in excluding appellant’s expert witness evidence on the grounds that appellant failed to make a timely exchange of expert witness information."
ALTERNATIVES
& VARIATIONS TO STATUTORY DEMAND &
DISCLOSURE ???
Some cases suggest C.C.P. §2034 might be exclusive
Local Rule varying timing of demand and disclosure may not be validSt.Vincent Med.Ctr v. Superior Court(1984) [trial setting conference order form order varying demand & response times invalid since prior statute did not allow for variations provided; change in relevant statute may render case irrelevant]
Interrogatories close to trial:
South Tahoe Public Utilities Dist. v. Superior Court (1979) 90 Cal.App.3d 135
Crumpton v. Dickstein (1978) 82 Cal.App.3d 166.Case Management Order in complex litigation
Hernandez v. Superior Court (2003), 112 Cal.App.4th 285, 297 [tr ct rev'd when unilateral disclosure ordered in case management conference order; "Thus, the statute provides for an earlier simultaneous, mutual exchange, but it does not permit a unilateral exchange. [citation] Trial courts may not adopt procedures that conflict with any statute". At page 299: "The court may order the expert exchange to be made on an earlier date than that specified in the demand. (§ 2034, subd. (e)(2).) The Legislature has required, however, that the exchange be mutual and simultaneous. (See § 2034, subd. (a)(1); see also, § 2019, subd. (a)(6).) Thus, the trial court's case management order of March 27, 2003, was in conflict with procedures specified by statute and established rules of law, insofar as it required the unilateral disclosure of the identity of each medical expert who would support petitioners' claims, the expert's curriculum vitae, and the expert's opinion with regard to causation. It was not, therefore, a proper exercise of the trial court's power to manage complex litigation. (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 967.)"]Trial Setting Conference. Order -
St.Vincent Med.Ctr v. Superior Court(1984) [trial setting conference order form order varying demand & response times invalid since prior statute did not allow for variations]
Stipulation of counsel
Foster v. Gillette Co. (1979) 100 Cal.App.3d 569(Suggests attorney agreement should be enforced; see also Grover v. Superior Court (1958) 161 Cal. App.2d 644
Protective Order - "Sanders Motion."
Crumpton v. Dickstein, supra.
Sanders v. Superior Court (1973) 34 Cal.App. 3d 270. [Case decided before expert disclosure statutes enacted. "We hold that, upon a showing of good cause made at an appropriate stage of the proceedings, e.g., the pretrial hearing at which time discovery is presumably complete, the case at issue and ready for trial setting, a party may be required to elect whether or not to call the expert as a witness and to disclose such election to his adversary. If he elects to do so, the opposing party shall be granted a reasonable time thereafter within which to conduct appropriate additional discovery directed at securing the desired information."]
Code Of Civil Procedure §2034
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CALIFORNIA
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Protective order
Torres v. Superior Court(1990) 221 Cal.App.3d 181[No contact by def of Plt treating physician except through statutory procedures; the disapproval in Heller v. Norcal Mutual Ins. Co., 8 Cal.4th 30 does not seem to affect this principle]
County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647See disqualification of experts/attorneys below
Moving party burden of proof to show
1. Reasonable expectation of confidentiality in communication
Communication between attorney and potential expert in retention interview but expert need not be retained
Formal agreement not required though better to have oral or written agreement
Attorney warning re confidentiality sufficient
Expert admonition to not disclose confidential info refutes expectation
Confidentiality not based on privilege or work product2. Actual communication of confidential information relevant to issues
Show nature of communication without revealing actual content
Information otherwise disclosed in pleadings, discovery etc. not confidentialShowing creates refutable presumption that expert conveys information to opposing counsel that can be overcome by a preponderance of evidence to the contrary i.e. that confidential info was not conveyed
Shadow Traffic Network v. Superior Court (1994), 24 Cal.App.4th 1067 [law firm disqualified when hired expert shortly after opposing counsel had interviewed and declined to hire due to expense; 1st attorney had advised of confidential nature of interview but no formal agreement]
Armenta v. Superior Court (James Jones Co.) (2002)101 Cal.App.4th 525 [expert disqualified if confidential matter disclosed]
Western Digital Corp. v. Superior Court (1998), 60 Cal.App.4th 1471 [Tr.Ct. rev'd for granting disqualification motion; expert firm contacted; years later new lawyer with opposing law firm hired new expert with expert firm and a screen was erected to separate new expert from those who had contacted party earlier; presumption overcome by showing new expert never learned of confidential information and did not convey anything to counsel who retained him]
Advanced Cardiovascular Systems v. Medtronic (N.D.Cal. 1998), 1998 WL230981 [Disqualification of expert motion denied; 1st attorney warned not to reveal confidential info until retention and attorney never said the info was confidential; even if confidential information was disclosed there was no reasonable expectation of privacy and no basis to disqualify the expert ]
County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647 [Party withdrew disclosed expert before deposed; disqualify attorney for ex parte communication with opponent's consultant; suggests might disqualify expert receiving tainted information from opponent's consultant though not decided]
