SJ Experts Must Be Disclosed by Statutory Deadline

Perry v. Bakewell Hawthorne, LLC, No. S233096 (Cal. Feb. 23, 2017)

Based on the statutory deadlines, California’s somewhat unique method of expert discovery—a mutual exchange of expert information—ordinarily happens after summary judgment briefing is completed. Prior cases have thus held that when the expert exchange deadlines haven’t run, the failure to pre-disclose an expert whose testimony is used in connection with a summary judgment motion does not merit preclusion under Code of Civil Procedure § 2034.300, which applies to undisclosed trial experts.

What happens, however, when the circumstances of the schedule wind up with the expert exchange date occurring before summary judgment? Some older cases held that the disclosure deadline applied only to trial experts, so the failure to exchange information didn’t preclude an expert’s use on summary judgment, even if the exchange date had passed. But the Supreme Court, in an unanimous opinion by Justice Corrigan, disagrees and disapproves those cases in a pretty straightforward analysis. 

Section 437c(d) says that summary judgment affidavits must “set forth admissible evidence.” And § 2034.300 says that the testimony of expert witnesses whose information has not been exchanged as of the exchange date is inadmissible. So unless the party offering the testimony SJ can show one of the exceptions to § 2034.300—such as good cause for a tardy disclosure, see § 2034.710—the undisclosed expert’s testimony is inadmissible and can’t be used at summary judgment.

Court of Appeal affirmed.