The Wrong Remedy

Pina v. Cnty of L.A., No. B285630 (D2d4 Aug. 7, 2019)

You can’t call expert witnesses at trial if you failed to designate them and offer them up for deposition. There’s one exception that rule. Code of Civil Procedure § 2034.310 permits a party to call an undesignated expert to “impeach the testimony of an expert witness” called by the other side. But in this context “impeach” means only to testify to the falsity or nonexistence of some fact on which impeached expert relied. The statute expressly prohibits an undisclosed expert from contradicting the impeached expert’s opinion. See § 2034.310(b).

Here, the trial court permitted an undisclosed expert to “impeach” the plaintiff’s expert by contradicting his opinion testimony on causation. The supposed justification for that was that the expert relied on discovery material Plaintiff produced too late in the game for Defendant’s disclosed expert to incorporate into his opinions. That was indeed probably a good excuse to let Defendant augment its disclosure with an additional expert or amend it to address additional topics. See §§ 2034.610, 2034.620. But it was not a justification for an undisclosed expert to give improper “impeachment” testimony that is expressly prohibited by § 2034.310(b). And since admitting the testimony was clearly prejudicial, a new trial is merited.

Reversed.