Judge: Daniel M. Crowley, Case: 22STCV29892, Date: 2022-11-21 Tentative Ruling
Case Number: 22STCV29892 Hearing Date: November 21, 2022 Dept: 28
Petitioner Mikaela Eggen’s Motion to Exclude Respondent’s Expert Witness Testimony and Report from Being Presented at Arbitration
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On September 13, 2022, Petitioner Mikaela Eggen (“Petitioner”) filed this petition against Respondent Steadfast Insurance Company (“Respondent”).
On October 24, 2022, Petitioner filed a Motion to Exclude Respondent’s Expert Witness Testimony and Report from Being Presented at Arbitration to be heard on November 9, 2022. On October 26, 2022, Respondent filed an opposition. On November 2, 2022, Petitioner filed a reply. The Court continued the hearing on the motion to November 21, 2022.
PARTY’S REQUESTS
Petitioner requests the Court exclude Respondent’s expert witnesses from testifying at arbitration.
Respondent requests the Court deny the motion.
LEGAL STANDARD
"The superior court has exclusive jurisdiction to hear and rule on discovery matters arising in a Uninsured Motorist arbitration. The arbitrator has no such power." Cal. Practice Guide: Personal Injury, Arbitration of Uninsured Motorist Claims, ¶7:304.9.
CCP §2034.260 provides, “(a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange.
(b) The exchange of expert witness information shall include either of the following:
(1) A list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial.
(2) A statement that the party does not presently intend to offer the testimony of an expert witness.
(c) If a witness on the list is an expert as described in subdivision (b) of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain all of the following:
(1) A brief narrative statement of the qualifications of each expert.
(2) A brief narrative statement of the general substance of the testimony that the expert is expected to give.
(3) A representation that the expert has agreed to testify at the trial.
(4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and its basis, that the expert is expected to give at trial.
(5) A statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.”
DISCUSSION
Expert designations were due October 4, 2022. Respondent failed to timely and properly designate expert witnesses, only serving the expert witness list two weeks after the designation date. The designation itself was defective, as it did not provide any CVs, fee schedules or reports with the designation. This substantially cuts into the mandated 50 days of expert discovery Petitioner is entitled to prior to arbitration.
Respondent argues that the delay was due a clerical error, in which the designation was prepared, but not sent. Once it was notified of Petitioner’s upcoming motion, Respondent immediately sent the expert designation. Respondent has agreed to remedy any prejudice by making its sole expert available for deposition. Respondent also notes that Petitioner was on notice that Respondent had designated expert Weinstein, as they Petitioner attended an IME conducted by Weinstein. Weinstein was disclosed as an IME doctor at the time of the exam. Finally, Respondent offers to absorb all costs associated with any necessary expediting.
The Court finds Respondent’s solution fair and to promote the least amount of prejudice to both parties. The Court denies the motion, but orders Respondent to make its expert available as soon as possible. Respondent is responsible for any fees incurred due to expedition of the deposition or transcript. Respondent also must immediately provide a CV and fee schedule to Petitioner, should that not have already been provided.
CONCLUSION
Petitioner Mikaela Eggen’s Motion to Exclude Respondent’s Expert Witness Testimony and Report from Being Presented at Arbitration is DENIED.
Respondent is ordered to immediately make their expert available for a deposition. Respondent is ordered to pay any fees associated with the expedition of expert discovery.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.