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.

Designate or Die

Perry v. Bakewell Hawthorne, LLC, No B264027 (D2d2 Feb. 3, 2016).

In opposition to one Defendant's motion for summary judgment in a premises liability case, Plaintiff submitted some expert declarations on the standard of care. Problem is that another Defendant had previously served a timely demand for exchange of expert information under Code of Civil Procedure § 2034.210 on all parties, but Plaintiff didn’t timely designate any experts. Which led the trial court to exclude them under § 2034.300, resulting in the SJ motion being granted.

The Court of Appeal rejects two arguments that the exclusion of the experts was error. First, the fact that the demand was served by a different defendant was of no moment. As the current version of § 2034.210 makes clear, once any party serves a demand, all parties have an obligation to exchange expert information, regardless of who made the demand. 

Second, the court rejects the argument that § 2034.300 does not merit the exclusion of expert testimony submitted in connection with summary judgment, as opposed to trial. Although, most of the time the designation date will fall after summary judgment has been briefed, that does not mean that § 2034.300’s rule of exclusion does not apply in those instances where the designation date comes first. Section § 2034.300 is generally addressed in terms of exclusion of expert evidence, not just at trial.

Affirmed.