Judge: Steven A. Ellis, Case: 20STCV34699, Date: 2023-08-21 Tentative Ruling

Case Number: 20STCV34699    Hearing Date: August 21, 2023    Dept: 29

TENTATIVE

The Court DENIES without prejudice Plaintiff Cujcuj Talva’s Motion to Strike Defendant Aidan Ahearn’s Supplemental Expert Witness Designation.

Legal Standard

“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.”  (Code Civ. Proc., § 2034.280, subd. (a).)  

Subject to certain exceptions for motions to augment and to make tardy designations, “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 ….”

(Code Civ. Proc., § 2034.300.)

Discussion

Plaintiff asks the Court to strike the supplemental designation of Defendant’s expert witnesses Brian Bashner, Alvin Lowi, and Christopher Johnk.

On June 5, 2023, the parties exchanged their initial expert witness list. (Best Decl. ¶¶ 3-4, Exhibs. 1-2.) Defendant designated an economist and biomedical engineer, while Plaintiff designated a pain management doctor and a life care planner. On June 23, 2023, Plaintiff served her supplemental designation of expert witnesses to include an economist and biomechanical engineer. (Id. ¶¶ 5-6, Exhib. 3.) On June 26, 2023, Defendant served his supplemental designation of expert witnesses, which included experts on what Plaintiff claims are new topics. (Id. ¶¶ 5, 7, Exhib. 4.) These include an orthopedic surgeon, and an expert on accident reconstruction.

It does appear that the three experts supplemented by Defendant are designated to offer opinions on subjects/topics that are not already covered by any of Plaintiff’s experts. Additionally, it is unclear why Defendant needs two experts (Mr. Lowi and Mr. Johnk) to provide one opinion on accident reconstruction.

The Court denies the motion, however, as Plaintiff’s remedy, expressly created by the Legislature, is a motion presented to the trial court to exclude the improperly designated expert witnesses under Code of Civil Procedure section 2034.300.  

Conclusion

The Court DENIES Plaintiff’s Motion to Strike without prejudice to Plaintiff filing a motion presented to the trial court to exclude the testimony at trial under section 2034.300.

Moving party is ordered to give notice.