Judge: Christopher K. Lui, Case: 19STCV17606, Date: 2023-06-05 Tentative Ruling

Case Number: 19STCV17606    Hearing Date: June 5, 2023    Dept: 76

MOTION TO STRIKE DEFENDANTS’ IMPROPER AND UNTIMELY EXPERT DESIGNATION

TENTATIVE RULING

            Plaintiff’s motion to strike Defendants’ expert witness designation as untimely and improper is GRANTED.

ANALYSIS

Motion To Strike Expert Witness Designation

            Plaintiff moves to strike Defendants’ expert witness designation as untimely and improper.

The basis for this motion is that Defendant Children’s Hospital of Los Angeles served a demand for experts on Plaintiff on February 23, 2022, pursuant to the parties’ October 25, 2021, trial date. In accordance with that demand, Plaintiff designated her experts on April 5, 2021. Defendants did not designate any experts until a year later on April 7, 2023. (Declaration of Aaron Gbewonyo, ¶¶ 2 – 5.)

            Civ. Proc. Code, § 2034.300 provides:

Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

(Civ. Proc. Code § 2034.300 [bold emphasis added].)

      Here, Defendants had the right pursuant to Civ. Proc. Code § 2034.280 to designate a supplemental expert witness within 20 days after the initial exchange, if Defendants had engaged in such exchange. 

(a) Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.

(b) This supplemental list shall be accompanied by an expert witness declaration under subdivision (c) of Section 2034.260 concerning those additional experts, and by all discoverable reports and writings, if any, made by those additional experts.

(c) The party shall also make those experts available immediately for a deposition under Article 3 (commencing with Section 2034.410), which deposition may be taken even though the time limit for discovery under Chapter 8 (commencing with Section 2024.010) has expired.

(Civ. Proc. Code § 2034.280 [bold emphasis and underlining added].)

            As Plaintiff points out, expert designations are required to be simultaneous to prevent parties from “reserving the right” to call experts in the initial round, then waiting to see their opponent’s expert list before putting forth a list of experts under a “supplemental” label.  Defendant’s argument that they did not intend to present a damages expert because they believe Plaintiff is not entitled to damages, and that they put forth Kovner as a “supplemental” expert damages only after learning that Plaintiff intended to have a damages expert, is not credible. 

            Further, even if Defendants had not previously designated an expert witness, Civ. Proc. Code, § 2034.310 would allow Defendants to call an expert to impeach Plaintiff’s witness at trial on the ground of falsity or nonexistence of a fact used as the foundation for Plaintiff’s expert witness’s opinion.  Such impeachment experts may not include testimony that contradicts the opinion.

A party may call as a witness at trial an expert not previously designated by that party if either of the following conditions is satisfied:

(a) That expert has been designated by another party and has thereafter been deposed under Article 3 (commencing with Section 2034.410).

(b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion.

(Civ. Proc. Code § 2034.310 [bold emphasis and underlining added].)

            The Declaration of Elizabeth A. Brown in support of Defendants’ Rebuttal Expert Witness Disclosure, (Gbewonyo Decl., Exh. 4.) indicates that Dawn M. Kovner, M.P.P. will offer testimony which will contradict Plaintiff’s expert witness testimony regarding opinion of economic losses suffered by Plaintiff. As such, this exceeds the permissible scope set forth in § 2034.310.

            In light of the foregoing, Defendants’ one-year delay in designating an expert witness was not only unreasonable, but also not permitted without leave of court.

            The motion to strike Defendants’ expert witness designation is GRANTED.