Judge: Laura A. Seigle, Case: 23STCV04276, Date: 2023-09-29 Tentative Ruling

Case Number: 23STCV04276    Hearing Date: November 6, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION IN LIMINE TO EXCLUDE CLANCY CORNWALL

            Plaintiffs Jose Martinez and Mary Martinez move to exclude the testimony of Defendant J-M Manufacturing Company, Inc.’s expert Clancy Cornwall because Defendant’s expert designation did not disclose the topics on which Cornwall plans to testify at trial.

            Code of Civil Procedure section 2034.260, subdivision (c)(2) requires an exchange of an attorney declaration including “[a] brief narrative statement of the general substance of the testimony that the expert is expected to give.”  Under section 2034.300, “[t]he 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 the witness as an expert under Section 2034.260.  (b) Submit an expert witness declaration . . . .” 

In Bonds v. Roy, the California Supreme Court explained “the language ‘[s]ubmit an expert witness declaration’ . . . refers to submission of a declaration that fully complies with the content requirements of [section 2034.260, subdivision (c)(2)], including the requirement that the declaration contain ‘[a] brief narrative statement of the general substance of the testimony that the expert is expected to give.’”  (Bonds v. Roy (1999) 20 Cal.4th 140, 144.)  The Supreme Court explained the policy behind the statute.  (Id. at pp. 146-147.)  It concluded “that the exclusion sanction of [section 2034.300, subdivision (b)] applies when a party unreasonably fails to submit an expert witness declaration that fully complies with the content requirements of [section 2034.260, subdivision (c)(2)].”  (Id. at pp. 148-149.)  “This encompasses situations . . . in which a party has submitted an expert witness declaration, but the narrative statement fails to disclose the general substance of the testimony the party later wishes to elicit from the expert at trial.  To expand the scope of an expert’s testimony beyond what is stated in the declaration, a party must successfully move for leave to amend the declaration . . . .”  (Id. at p. 149.) 

            On August 28, 2023, Defendant served an expert designation of the “individuals whose opinions and testimony J-MM expects to offer into evidence at the time of trial.”  (Parker Decl., Ex. B at pp. 6-7.)  The designation listed 63 specific experts along with “[a]ll doctors and custodians of physicians’ medical records who have examined or treated Plaintiff in his lifetime.”  (Id. at pp. 7-11.)  Obviously, Defendant did not really expect that 63 experts, along with all doctors Plaintiff ever saw at anytime in his life, would testify at trial.  Indeed, it is highly unlikely Defendant actually retained 63 experts and obtained their agreements to testify in the trial in this case.  What is much more likely is that Defendant listed every potential expert any defendant has ever used in a similar asbestos case.  Indeed, Defendant’s expert designation reveals it is not a real list of experts Defendant expected would testify because it does not comply with Code of Civil Procedure section 2034.260, subdivision (c)(3)’s requirement that the attorney declaration include “[a] representation that the expert has agreed to testify at the trial.”  On the list of 63 experts, only 27 stated they agreed to testify at the trial in this case.  (See Parker Decl., Ex. B.)  Even 27 experts is a completely unrealistic number of experts for one defendant to expect to call at trial in this type of asbestos case. 

            Defendant listed Clancy Cornwall among the 62 other experts (not counting all of the treating doctors).  (Parker Decl., Ex. B at pp. 21-22.)  The designation stated he had agreed to testify about issues related to “naval and/or commercial shipbuilding,” “various insulation materials used in ship construction and repair,” Navy involvement in “the design and manufacture of equipment intended for use on Navy vessels,” government involvement in ship construction and repair, knowledge about asbestos hazards in the shipping industry, and Navy and commercial shipping programs for the elimination of asbestos.  (Ibid.)  All of the topics listed for Cornwall concerned ships, shipping building, and ship repair.

In contrast to the expert designation, in his expert report and at his deposition, Cornwall did not state he planned to give opinions about ships, shipbuilding, or ship repair.  Rather his expert report discussed “asbestos-containing materials in buildings at U.S. government and U.S. military facilities” and Plaintiff’s work with asbestos cement pipe at Camp Pendelton.  (Parker Decl., Ex. C at pp. 7, 29-30.)  Similarly at his deposition, Cornwall stated his “opinions center around [Plaintiff’s] potential – the allegations of his potential exposure for – from asbestos cement pipe” from his work at Camp Pendleton.  (Parker Decl., Ex. D at p. 6.)  He did not testify to opinions about shipbuilding and repair or asbestos hazards in shipping.

Thus, Cornwall’s actual opinions are not about ships.  This is not surprising because Plaintiff does not allege he worked on ships or was in the Navy.  He testified at his deposition in May 2023 (as quoted in Cornwall’s expert report) that he worked at Camp Pendelton laying asbestos cement pipe in a ditch.  (Parker Decl., Ex. C at pp. 3-4.)  There is no evidence Plaintiff was anywhere near a ship.

Thus, Defendant knew when it designated Cornwall on August 28, 2023 that Plaintiff was not claiming he had been exposed to asbestos while in the Navy or on a ship.  Defendant knew Plaintiff claimed he had been exposed while laying asbestos cement pipe in a ditch in the ground.  Thus Defendant should have known that it would ask Cornwall to opine on issues surrounding exposure while working with asbestos cement pipe at a Marine base, not about issues concerning shipbuilding and repair and asbestos on ships. 

Defendant argues in its opposition that Plaintiffs should have known that its expert designation was not accurate and that Cornwall was not really going to opinion about ships.  That is not a convincing argument, and it has no legal basis.  Defendant does not cite any law putting the burden on the other side to guess the topics that an expert will testify about.  Defendant does not cite any law that the expert designation does not need to be accurate.

            Defendant should have given an accurate brief narrative statement in its August 28, 2023 designation.  Or, it should have moved for leave to amend the declaration.  (Bonds, supra, 20 Cal.4th at p. 149.)  It did neither, and it cannot claim that it did not learn until the last minute that it needed an expert on issue concerning installing asbestos cement pipes on a Marine base.  Rather what appears to have happened is that instead of identifying the actual experts retained to testify on the specific issues in this case, Defendant cut-and-pasted its generic expert designations that it uses in every asbestos case (as often occurs in asbestos litigation in this court).  Hence the 63 designated experts, including on matters not at issue in this case.

            Under the holding of Bonds, the court shall exclude an expert when the brief narrative statement in the expert declaration fails to disclose the general substance of the expert’s expected trial testimony.  (Bonds, supra, 20 at p. 149.)  That is what occurred here.  Therefore, the motion is GRANTED.  Cornwall is excluded from offering opinions on topics outside those concerning ships, shipping building, and ship repair as stated in the August 28, 2023 designation.

            The moving party is to give notice.