This med-mal case addresses the expert witness disclosure process under Code of Civil Procedure § 2034.010, et seq. Rather frustratingly, it creates a split of authority with another case from the same district. The two cases were decided within a day of each other, although this case was not ordered published until a month later. Worse, the justice who authored this decision joined the opinion in the previously published case. So we don’t just have an inter-district, an inter-division, or even an intra-division split. It’s a split between two opinions joined by the same justice over a two-day period. By publishing an opinion logically irreconcilable with its own prior published opinion, without so much as recognizing the conflict, the court does a disservice to litigants and trial judges throughout the state, who will be left to muddle through the inconsistent results.
The Setup.
Plaintiffs sued their doctor and hospital for medical malpractice over a misdiagnosis. Defendants demanded an exchange of expert witness information under § 2034.210(a). They did so seventy days before trial, which is generally the last date allowed by code. See § 2034.220. They served the demand by mail, setting the exchange date for twenty days after the date of service. Plaintiffs, however, did not mail their disclosures—of doctors testifying about the standard of care—till at least two weeks after the exchange date. (It might have been even longer; there were credible allegations that their proof of service was phony.) When plaintiffs offered their experts up for depos, defendants declined, citing the late disclosure. Plaintiffs then successfully moved in limine to exclude the experts under § 2034.300. Since med-mal can’t be proven without expert testimony about the standard of care, plaintiffs got nonsuited. After their lawyer quit on them, they appealed, pro se.
Cottini v. Enloe.
By way of background, on May 21, Cottini v. Enloe Medical Center, a well-reasoned unanimous thirty-five-page published opinion joined by the justice who authored the opinion here, held that:
(1) when served with an improper or unreasonable demand for expert disclosure, the receiving party cannot avoid disclosing its experts by simply objecting; it needs to move for a protective order under § 2034.250;This case was originally decided the day before Cottini in an unpublished opinion. On June 16, the court granted a Rule of Court 8.1120 request and published the opinion without alteration. The opinion touches on each of the points decided by Cottini. It asks: (1) whether the defendants lacked standing to object to a late disclosure; and (2) if so, whether the experts were properly excluded.
(2) in order to have standing to demand exclusion of an expert for failing to disclose under § 2034.300, the objecting party needs to have itself timely disclosed its own experts under § 2034.260;
(3) if the objector has standing, exclusion is mandatory; and
(4) even if the objector does not have standing, the court still has the inherent authority to exclude the objectionable experts “for an egregious violation of the exchange requirements[.]”
First Issue: Defendants’ Standing to Object.
Section 2034.230(a) says that a party demanding expert disclosure can set date for simultaneous exchange twenty days after service or fifty days before trial, whichever is later. When, like here, the demand is served seventy days before trial—the last day—both options fall on the same day. (Since 20 + 50 = 70.) But there’s a rub: Because because the twenty-day date is triggered on service, and defendants here served their demand by mail, plaintiff might get five additional days to respond under § 1013. Consequently, if § 1013 applies to the demand procedure, the demand should have set the date for exchange was five days later than it did.
Given that § 2016.050 specifically applies § 1013 to discovery, the court uncontroversially holds it does. The question, then, is: What’s the significance of the defendants’ setting the exchange date five days too early vis-a-vis their right to demand exclusion under § 2034.300 due to plaintiffs’ late disclosure?
There seem to be two ways to go here. First, following Cottini, a court could hold that if there was an issue with the form or substance of the demand, it was incumbent on the non-demanding party to move for a protective order to obtain relief. See Cottini, Slip Op. at 19 (noting that the legislature did not provide an avenue to avoid disclosure via objection, only protective order). Absent a protective order, the obligation to respond remains. Since plaintiffs didn’t do that, they would be out of luck.
Or the court could distinguish Cottini, because the defect here was on the face of the demand, while in Cottini, the objection was extrinsic to it. Because strict compliance with the expert disclosure procedure is generally required, one could say that a facially improper demand is no demand at all. Were that the case, the requirement to exchange was never validly triggered, so the witnesses can’t be excluded for failure to comply. That would effectively resolve this appeal in plaintiffs favor.
Following Cottini—which is consistent with the rules regarding facial defects in other discovery demands, see generally § 2025.410(c) (deposition notices)—is probably the better reasoned result. But it certainly wouldn’t be unreasonable to come out the other way.
The court here, however, comes out a third door. It holds that picking the wrong exchange date denies the demanding party standing to object to exclude the expert under § 2034.300. That section conditions the right to demand exclusion on the objecting party having “made a complete and timely compliance with [§] 2034.260[.]”
The problem with this reading is that § 2034.260 deals with the actual exchange of expert information. The date on which an exchange can be demanded is in § 2034.230(b), a wholly separate statute. The court simply assumes that a technical defect in failing to comply with § 2034.230(b) is a failure to make “a complete and timely compliance with [§] 2034.260[.]” (emphasis added). That doesn’t make sense.
How does a mistake under one statute constitute a failure to comply an entirely different, specifically enumerated statute? Presumably if the legislature wanted to condition a party’s standing to move to exclude experts on its compliance with the letter of every part of the code dealing with expert disclosure, § 2034.300 could have required the party to have “satisfied all of its obligations under this article.” Or something like that.
Notably, the only authorities the court cites for these points are: (1) a provision in California Civil Procedure Before Trial (i.e., the Rutter Guide) addressing defects in demands that notes a lack of clarity on whether there is an obligation to seek court intervention or whether the demand is automatically invalid; and (2) a “cf.” cite to West Hills Hospital v. Superior Court, 98 Cal. App. 3d 656 (1979), which—as specifically examined in Cottini—read a prior version of the Civil Discovery Act to require condition seeking to exclude expert testimony on the moving party’s having made its own timely disclosure. Neither sheds much light on the question faced by the court.
Second Issue: Assuming Defendants Had Standing, Was Exclusion Reasonable?
I’ll just quote the case here:
Even if defendants did have standing to bring a section 2034.300 motion, plaintiffs cannot be said to have unreasonably failed to comply with defendants’ expert witness demand, so as to justify excluding plaintiffs’ experts’ testimony. Although section 2034.300 does not provide explicit guidance as to how a court should decide if the party’s failure was reasonable or unreasonable, the record does not support the trial court’s implicit conclusion that plaintiffs behaved so unreasonably as to warrant exclusion of their experts’ opinion testimony.(emphasis added).
On this one, the court could well be right. Textually, under § 2034.300 a failure of timely disclose must be “unreasonable” to merit exclusion. So presumably a party with standing to object is not entitled per se to exclusion for a late, but not unreasonable disclosure.
The problem is that Cottini holds otherwise. According to Cottini, § 2034.300 provides for a “rule of mandatory exclusion of expert testimony” in the event of late disclosures. Cottini, Slip. Op. at 25. “Where the objecting party has made a complete and timely compliance with section 2034.260, exclusion is mandatory,” if no disclosure is made by the exchange date. Id.
Despite the seemingly problematic statutory text, Cottini is not unreasonable in coming to this result. As the opinion explains, the Discovery Act includes a specific statutory scheme to excuse late disclosures of expert information (§§ 2034.710–730). It requires the court to consider an enumerated list of factors in allowing late discosure. § 2034.720. It further requires a showing of “exceptional circumstances” if tardy disclosure is sought after the close of discovery. § 2034.710(b). Although Cottini’s analysis isn’t pellucid, by treating compliance with § 2034.710–730 as an “exception” to a “rule of mandatory exclusion,” it is effectively saying that a late disclosure that goes unforgiven by invoking the statutory procedures to cure late disclosure is unreasonable as a matter of law.
That squares with Boston v. Penny Lane Centers, Inc., 170 Cal. App. 4th 936, 951 (2009), which applied a more general measure of reasonableness to late disclosure of expert reports and writings under § 2034.270. Penny Lane explained that, unlike the late disclosure of expert identities, late disclosure of reports and writings were not subject to “detailed procedures to be followed” for late disclosure of expert identities. Other cases have reached similar results. See Richaud v. Jennings, 16 Cal. App. 4th 81, 91 (1993) (holding that a party who failed to move under the prior codification of § 2034.710 to disclose an additional expert cannot claim that the exchange was “not ‘unreasonable’”); Bonds v. Roy, 20 Cal. 4th 140, 149 (holding that the “exclusion sanction [now codified at§ 2034.300] applies when a party unreasonably fails to submit an expert witness declaration that fully complies with the content requirements [now codified at § 2034.260] 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.’”).
Notably, none the cases cited here as authority for the application of a reasonableness standard came in the context of a complete failure to timely disclose the very identities of the party’s experts. See Stanchfield v. Hamer Toyota, Inc., 37 Cal. App. 4th 1495, 1504 (1995) (gamesmanship in deposition scheduling); Zellerino v. Brown, 235 Cal. App. 3d 1097 (1991) (incomplete declaration and refusal to make experts available for deposition). Consequently, while the precedent can be harmonized with either Contini or the result here, the rationales of the two cases can’t be squared with each other.
In any event, applying its rule, the court determines that plaintiffs' late disclosure was not unreasonable. Plaintiffs disclosed with enough time to let defendants conduct expert discovery, including by making their experts available for depositions in advance of trial. So the trial court abused its discretion in excluding them. And since the exclusion was the basis of the nonsuit, that gets reversed too.
Reversed and remanded.
Some Thoughts on the Administration of Justice.
As I said, the court’s opinion here does not reach an unreasonable result. But there were numerous avenues the court could have taken to get to a result that reverses the trial court for excluding the plaintiffs’ experts while staying consistent with Cottini. Its failure to do so leaves yet another unrecognized split of authority in California procedure law that will prove problematic to litigants and trial courts.
Policy-wise, the differences between the rules espoused in Cottini (which are somewhat harder on the late-disclosing party) and those applied in this case (which are more forgiving) are not particularly significant. But when it comes to procedural matters, certainty and uniformity often trump substance. The most important considerations are that everyone can understand the rules, and that they are consistently applied. Having conflicting opinions hurts those values and leads to arbitrary results. A win or loss should not turn on conflicting rules regarding expert disclosure.
Indeed, consistency in published procedural law is particularly crucial in a state like California, where all appellate precedent, from any appellate court is binding on every trial court in the state. See Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 455 (1962). In the case of a conflict, “[s]uperior courts . . . may pick and choose between conflicting lines of authority. This dilemma will endure until the Supreme Court resolves the conflict, or the Legislature clears up the uncertainty by legislation.” McCallum v. McCallum, 190 Cal. App. 3d 308, 315 n.4 (1987). (Or as a superior court judge once put it, “when there’s an argument that there’s a conflict between the Court of Appeal and the Court of Appeal, it’s some lonesome trial judge somewhere who’s supposed to say: Oh, yes, I’m appointed [to] the Supreme Court for temporary purposes here and I will make the call on this.”) Of course—given that our Supreme Court is often preoccupied with its Sisyphean obligation to decide every single issue in every decades-old direct appeal of the capital convictions that “The People” keep seeking even though nobody ever gets executed—grants of review to resolve splits of authority on prosaic matters of civil procedure are few and far between.
I don’t want to be too harsh on the court here. The parties’ briefing was—errrr—less than comprehensive. The defendants’ 3,000-word brief cites all of two cases, both of which were decided long before the passage of the Civil Discovery Act. I can’t find Plaintiffs’ briefs online, but, given their pro se status, it would be unsurprising if they weren’t equally or more spotty when it came to citing authority. That said, when an appellate court decides to publish—something it should do often—it transcends its role as a mere arbiter of the parties’ dispute. It takes on a law-declaring function with potential statewide significance. So if the briefs stink and there isn’t time to do your own exhaustive research, please don’t publish.
Unfortunately, it would appear that, in making publication decisions, some of our intermediate appellate courts do not feel obliged to keep abreast of the recent work product of their brethren. After-the-fact publication of originally unpublished cases is a big culprit. Presumably, once these erstwhile bench memos get issued as published decisions, someone doesn’t always go back and check for statewide consistency when a publication request under Rule of Court 8.1120 is granted. That needs to be fixed. But that’s not the only reason. Something needs to needs to be done to prevent and fix inadvertent splits that will otherwise evade review.
So maybe it’s time for California to re-think stare decisis. Many of the inconsistency issues could be addressed if it worked more like federal practice—i.e., making stare decisis geographically based and instituting a district en banc procedure. In courts with discretionary final review, en banc procedures incentivize intermediate courts to police their own precedent. And geographic stare decisis would make it easier for court of appeal justices to do so by limiting the amount of reading a justice is required to do to keep abreast of the case law of his or her court. (For reference, at the time this case was published, the appellate district that decided this case had published only seven opinions since May 1.) If California wanted to maintain its unique lack of horizontal stare decisis within districts—it does gives appellate justices some latitude to rethink prior precedent—that would be fine. But if we’re going to do that, it would be helpful to adopt a rule like Seventh Circuit Rule 40(e), which lets a three-judge panel overrule circuit precedent by giving notice to the rest of the court and an opportunity to call the case en banc.
A state court task force considered some of these ideas back in 2000. Here’s their report. They rejected any stare decisis changes because “a convincing case has not yet been made that the number of conflicts or the degree of uncertainty is so high that horizontal stare decisis, statewide or intra-district, has become necessary as an antidote.” And they declined to recommend instituting en bancs because they were “not convinced that there are enough important, unresolved conflicts among districts and divisions to justify the expense and additional bureaucratization required by an en banc procedure.”
I would posit that the case is now being made, every day, in the published decisions of the Court of Appeal. Just some food for thought.
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