Tuesday, June 3, 2014

Trial Courts Have Inherent Authority to Police Bad Conduct in Expert Disclosure

Cottini v. Enloe Med. Cntr., No. C068915 (D3 May 21, 2014)
The critical question we must resolve is whether or not the trial court, on the objection of a party who has made a complete but untimely compliance with the expert witness exchange requirements of Code of Civil Procedure section 2034.260, has the authority to exclude from evidence expert testimony offered by a party who has completely and unreasonably failed to comply with these same requirements prior to the discovery cutoff date.
 (footnote omitted).

The answer, according to the court, is yes.

Although the Civil Discovery Act is largely modeled on the federal rules, in a key area—the disclosure of expert testimony—California discovery differs quite significantly from federal practice. Unless the parties stipulate otherwise, there are no expert reports in California practice. Instead, no earlier than seventy days before trial, any party can demand a mutual exchange of expert witness information.  See § 2034.210–220.  If a demand is made, the parties are required to simultaneously exchange the information, generally twenty days later.  See § 2034.230.

The information that gets exchanged is limited. Just the expert’s name and address, and (for retained experts), an attorney declaration setting forth the expert’s rate, qualifications, availability for deposition, and the general subject matter of her intended testimony. See § 2034.260. There is then an opportunity to disclose information regarding “supplemental” experts—those who will testify on a topic for which the party did not originally designate an expert, but which was identified in an opponent’s disclosure. § 2034.280. Given the limited nature of these disclosures, the main event for discovery of expert testimony is the expert’s deposition, which often occurs right on the verge of trial.

The consequences of failing to follow the disclosure procedure can be severe. Under § 2034.300, “on objection of a party that has made a complete and timely compliance with [§] 2034.260,” the court must exclude an expert if the party proffering her testimony failed to make a complete and timely disclosure. A party can escape this result by getting the court’s leave to submit a late disclosure under § 2024.710, but that is not easy to do. And if the statutory discovery period, see § 2034.010, has already closed, the moving party must show exceptional circumstances justifying tardy disclosure of its experts. See § 2024.710(b). A tardy disclosure will be permitted only if a set of mandatory factors, including the lack of prejudice to the other party and the diligence of the party seeking late disclosure have been satisfied. See § 2034.720.

In this in med-mal case, the hospital defendant served the patient plaintiff with a proper demand under § 2034.210. On the due date for the exchange, plaintiff served an objection, refusing to disclose any expert information because plaintiff had filed a motion to disqualify defendant’s attorney. Because of plaintiff’s objection, defendant also declined to disclose on the due date. Instead, defendant proposed a simultaneous exchange three days after the DQ issues were resolved, to which plaintiff did not respond.

After the DQ motion was denied, without prejudice, defendant again proposed a simultaneous exchange, this time within four days. After plaintiff again declined to disclose, defendant unilaterally disclosed its one retained expert and thirty-seven non-retained ones. Plaintiff responded by serving another objection, claiming that disclosure was inappropriate while conflict of interest issues loomed in the case. Plaintiff renewed his DQ motion, which was again denied. Plaintiff then unsuccessfully appealed the denial, which burned up a year and a half. Only after the remittitur had issued—years after the demand had been made and just seven days before the new trial date—did Plaintiff finally disclose four retained experts and forty-nine non-retained ones. Defendant moved in limine to exclude the late-disclosed experts.

The trial court initially ruled that defendant lacked standing to move to exclude plaintiff’s experts under § 2034.300, because defendant had not itself made a timely disclosure under § 2034.260. But as the trial progressed, the court decided that, notwithstanding defendant’s lack of standing to seek mandatory exclusion under § 2034.300, it still retained an “equitable power” to exclude plaintiff’s experts due to discovery misconduct and gamesmanship. It exercised this discretion and refused to let plaintiff’s experts testify at trial. Given that this is a med-mal case where proof of the standard of care and causation almost invariably require expert testimony, unsurprisingly, plaintiff lost. He then appealed.

The court of appeal first notes that an “objection” is not a proper response to a demand for the exchange of expert information. If a party has issues with expert disclosure, it is incumbent on that party to seek a protective order under § 2034.250. Having failed to do that, plaintiff was required to participate in the simultaneous exchange under § 2034.260, or risk the consequences of failing to make a timely disclosure.

Nor did plaintiff’s years-late submission satisfy the exceptional circumstances under which § 2034.710 justifies tardy disclosure of experts. In particular, plaintiff sought to amend his disclosure long after expert discovery had closed and his reason for refusing to make a timely disclosure—the pending DQ motion and appeal—made no sense. What prejudice would result to the plaintiff from disclosing the limited required information about his experts to an opposing counsel who might ultimately be disqualified due to a conflict? Particularly since many of the mandatory factors in § 2034.720 were unsatisfied, the court didn
t abuse its discretion in denying leave to make a tardy disclosure.

Getting to the key issue, the court agrees that mandatory exclusion under § 2034.300 is unavailable to a party that has itself failed to make a timely disclosure under § 2034.260. That remedy was thus unavailable to defendant in this case. But that doesn
t end the analysis. The court finds that defendant’s late disclosure was largely the result of plaintiff’s gamesmanship. Moreover, while defendant did make a disclosure before expert discovery had closed, plaintiff did not. Under the circumstances, the court’s inherent equitable powers that permit it to control the evidence at trial gave it the discretion to exclude plaintiff’s experts for his failure to comply with the disclosure procedure. In the context of this case, that discretion was not abused.


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