Motions to (1) Strike Defendants’ Supplemental Expert Designation and to Exclude Defendants’ Expert Edmond Provder from Testifying at Trial, filed by Plaintiffs Albert Naranjo and Antonia Mendez; and (2) Continue Trial, filed by Defendants Salvador Gallegos and Fastenal Company

TENTATIVE

Plaintiffs Albert Naranjo and Antonia Mendez’s motion to strike Defendants’ supplemental expert designation and to exclude defendants’ expert Edmond Provder from testifying at trial is DENIED.

Defendants Salvador Gallegos and Fastenal Company’s motion to continue trial and extend their expert discovery cutoff date is GRANTED. Trial is continued to January 9, 2023.

Legal Standard

CCP § 2034.300 requires the Court to, on objection of any party who has made a complete and timely compliance with Section 2034.260, “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 writing of expert witnesses under Section 2034.270. (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).” 

Although continuances are disfavored, the trial date may be continued for “good cause,” which includes (without limitation): (1) unavailability of trial counsel or witnesses due to “death, illness, or other excusable circumstances”; (2) the addition of a new party depriving the new party (or other parties) from conducting discovery and preparing for trial; (3) “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”; or (4) “[a] significant, unanticipated change in the status of the case” preventing it from being ready for trial.  (Id., Rule 3.1332(c).)   

Other relevant considerations may include: “(1) The proximity of the trial date; [¶] (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; [¶] (3) The length of the continuance requested; [¶] (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; [¶] (5) The prejudice that parties or witnesses will suffer as a result of the continuance; [¶] (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; [¶] (7) The court's calendar and the impact of granting a continuance on other pending trials; [¶] (8) Whether trial counsel is engaged in another trial; [¶] (9) Whether all parties have stipulated to a continuance; [¶] (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and [¶] (11) Any other fact or circumstance relevant to the fair determination of the motion or application.”  (Id., Rule 3.1332(d).) 

Discussion

              Motion to Strike Supplemental Designation and Exclude Expert

Plaintiffs contend Defendant’s “supplemental” vocational rehabilitation expert, Edmond Provder (“Provder”), was designated improperly and thus must be excluded. Plaintiffs argue Defendants designated Provder as a supplemental expert on a subject on which Defendants had already designated any expert.

CCP § 2034.280 allows a party to 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.”

Defendants designated David J. Weiner as an expert. Defendants’ designation states: “David J. Weiner, M.B.A., AM is a recognized expert witness regarding economic damages and damages valuation… Mr. Weiner has agreed to testify in this action generally as the plaintiffs’ alleged economic damages, including but not limited to Mr. Naranjo's claimed loss of earnings and other economic damages.” (Semon Decl., Exh. A.)

Plaintiffs simultaneously designated Philip Sidlow. The declaration states: It is anticipated that Mr. Sidlow will testify regarding Plaintiff’s past, present and future loss of earning, loss of earning capacity, and his work-life expectancy, and will provide a vocational analysis and present-day value of these damages. (Id. Exh. B.)

Defendants supplementally designated Edmond Provder. In his declaration defense counsel states: “Edmond A. Provder is a recognized expert witness regarding Vocational, Occupational Assessment, and Evaluating Earning Capacity; Rehabilitation Counseling’ and Life Care Planning of the Catastrophically Injured. Mr. Provder is credentialed by the American Board of Vocational Experts, the Commission on Rehabilitation Counselor Certification and the International Academy of Life Care Planners. Mr. Provder has agreed to testify in this action generally regarding plaintiff Alberto Naranjo's vocational, occupational assessment, and evaluation of earning capacity, including Alberto Naranjo's alleged loss of earnings damages, work-life expectancy, vocational analysis and value of such damages, if any. Mr. Provder is further expected to rebut the testimony of plaintiffs' experts regarding these subjects.” (Id., Exh. C.)

Defendants argue they had identified Mr. Weiner, an accountant, to testify regarding the computation of plaintiffs’ alleged economic damages, including reducing any future damages to their present cash value. Defendants had not yet identified an expert to testify regarding Plaintiff Naranjo’s loss of earning capacity, including his ability to find alternate employment given his claimed work restrictions.

The Court finds Defendants have not improperly designated Provder as an expert. CCP § 2034.210 requires “a mutual and simultaneous exchange” of information concerning parties’ expert trial witnesses. Provder will be testifying as to the Plaintiff’s employability following his injuries, and Plaintiff’s earning capacity, while Weiner is an accountant who will testify regarding the computation of damages. Thus, this motion is denied.

The Court finds this situation not to be analogous to the case in Fairfax v. Lords (2006), 136 Cal.App.4th 1019, 1027. In Fairfax, id, the court found Lords had every reason to anticipate the designation of an expert who would testify as to the applicable standard of care, as the dispute was regarding medical malpractice, and Plaintiff’s failure to include a single name of any witness Lords expected to call was prejudicial. As such, the trial court’s denial of Fairfax’s motion to strike Lords’ “second designation” of expert witnesses was in error. (Id.)  However, here, Defendants did provide the name of Weiner to testify regarding damages.

To find otherwise would be reading in statutory obligations that do not exist—“that a party must not only initially disclose every expert witness it expects to call at trial, but also every expert witness it anticipates using to rebut the experts the other side might designate the experts it expects to call at trial.” (Du-All Safety, LLC v. Sup. Ct. of Alameda Cnty (2019) 246 Cal.Rptr.3d 211, 219.) The Court finds this present case to be analogous to the one in Du-All Safety, LLC, id, where Du-All complied with the statute in its initial disclosure naming two experts it expected to call and then timely supplemented its experts in response to Plaintiff’s designations. Additionally, simply because a party may have known, expected, or anticipated that the opposing party would designate damages experts does not place any responsibility on the responding party to anticipate what experts opposing party might designate and include rebuttal experts in the initial disclosure. (See id. at 223.)  

              Motion to Continue Trial and Extend Defendants’ Expert Discovery Cutoff

Defendants move to continue trial to January or February of 2023, other than the week of February 20, 2023, and to extend the expert discovery cutoff for Defendants to allow Defendants to conduct the depositions of plaintiffs’ retained experts prior to trial. Defendants argue good cause exists because plaintiffs have repeatedly refused to allow defendants to depose plaintiffs’ experts by refusing to provide dates of availability, refusing to appear for properly noticed depositions, failing to appear for depositions on agreed times and dates, and in one case terminating a deposition before its completion. Proceeding to trial without allowing defendants to conduct the depositions of plaintiffs’ retained experts will prejudice defendants and will reward plaintiffs with an unfair advantage at trial. Second, Defendants argue, due to the ongoing discovery dispute with plaintiffs regarding the refusal to produce their retained expert witnesses for deposition, defendants were required to schedule an Informal Discovery Conference. Defendants contacted the Court on July 13, 2022, to schedule the IDC. At that time, the earliest date available from the Court was October 24, 2022, two weeks after the scheduled trial date.

Plaintiffs argue in opposition to continue trial that trial has already been continued and defendants have failed to show good cause for asking for another continuance. Plaintiffs argue that Defendants request for an Informal Discovery Conference is an effort to get the trial continued. In addition, Plaintiffs argue that a continuance of trial to January or February of 2023 is prejudicial. Continuing the trial would be to the extreme financial hardship of the plaintiffs. This action was filed on July 20, 2020, with an original trial date on January 18, 2022. Key witnesses and experts are getting ready to testify on the week of October 14, 2022. They may not be available in January or February of 2023.

The Court finds there is good cause to continue trial as Defendants have not yet completed their expert depositions of Plaintiffs’ experts. The parties are clearly at a standstill in their discovery disputes and the IDC, which is set two weeks after the trial date, may be beneficial to them. Moreover, while Plaintiffs argue they will suffer prejudice, the Court notes that Plaintiffs will still have their day in court. Further, Plaintiffs have not explained why they would suffer extreme financial hardship by a trial continuance. Lastly, the mere possibility that Plaintiffs’ witnesses may not be available in January or February of 2023 is not sufficient to defeat Defendants’ good cause. Thus, the motion is granted.

Conclusion

Accordingly, Plaintiffs’ motion to strike Defendants’ supplemental expert designation and to exclude defendants’ expert Edmond Provder from testifying at trial is DENIED.

Defendants’ motion to continue trial and extend their expert discovery cutoff date is GRANTED. Trial is continued to January 9, 2023.

Moving party is ordered to give notice.