Motion to Strike Defense Expert and Exclude Testimony filed by Plaintiff Danielle Paz

TENTATIVE

Plaintiff Danielle Paz’s motion to strike defense expert and exclude defense expert’s testimony is DENIED without prejudice.

Legal Standard

C.C.P. section 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).

Failure to comply with expert designation rules may be found to be “unreasonable” when a party's conduct gives the appearance of gamesmanship. (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447, citing Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504.) The operative inquiry is whether the conduct being evaluated will compromise these evident purposes of the discovery statutes: “to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.” (Id. at p. 1504.) 

Discussion

Plaintiff moves to strike the expert designation and exclude expert testimony offered by Defendants because they have refused to produce Richard Rosenberg, M.D. for deposition prior to the discovery cut-off date. Plaintiff agreed to proceed with the expert's deposition after the cut-off and according to the doctor's stated availability on September 22, 2022. Defense counsel declined to stipulate to complete expert discovery after the statutory cut off. As a result, Plaintiff argues that Defendants have refused to permit their expert to be deposed as required by California's expert discovery framework.

The Court finds the motion is premature. This matter was originally set for trial on September 29, 2022. On September 14, 2022, the Court continued the trial date to March 29, 2022, and specifically noted that the discovery and motion cutoff dates are to correlate with the new trial date. (See Court’s 9/14/22 Minute Order.)

Moreover, the court finds that any ruling excluding Defendants’ expert witnesses are evidentiary in nature and must be addressed by the trial court. C.C.P. § 2034.300 specifically and appropriately designates that the trial court should hear motions pursuant to this section. Therefore, the motion to exclude the testimony of expert witness is DENIED without prejudice.

Conclusion

Based on the foregoing, Plaintiff’s motion to exclude defense experts is DENIED without prejudice.

Moving party is ordered to give notice.