Bring on the Sandbag

Du-All Safety, LLC v. Superior Court, No. A155119 (D1d2 Apr. 18, 2019)

The Code of Civil Procedure anticipates two rounds of expert disclosure: an initial round and then a supplemental round. In the supplemental round, parties can designate experts on topics that other parties designated in their initial rounds. But there’s an important caveat set out in a case called Fairfax v. Lords: No sandbagging. On a topic that the parties have “every reason to anticipate” will require expert testimony, the parties don’t get to hold back and wait to disclose only as a supplemental. 

The case involves an alleged engineering defect at a wastewater treatment plant, resulting in Plaintiff allegedly falling from a high height, rendering him paraplegic. Defendant initially disclosed two experts. Plaintiff, seven—two on the topics disclosed by Defendant plus five more. Defendant disclosed five more supplemental experts on Plaintiff’s topics. Plaintiff moved to strike, which the trial court granted, finding that Defendant sandbagged on topics where it knew experts would be required.

The Court of Appeal grants a writ. In doing so, it takes a pretty narrow reading of Fairfax, based on the idea that the expert disclosure provisions of the discovery act literally permitted Defendant to do what it did. According to the Court, Fairfax is distinguishable because: (1) In Fairfax, the defendant made no designations in its initial designation, whereas here, Defendant designated two, suggesting that there was no “wait and see” game at play. (2) There was prejudice in Fairfax, because the expert’s testimony led to a defense verdict. Here, the court had just granted a continuance, so there was plenty of time for depositions. (3) While the record in Fairfax showed the Defendant intentionally sandbagged, here, there was no evidence of that. In particular, the court relies on the fact that discovery in the case seems to have otherwise gone pretty smoothly, so the record didn’t support a finding of gamesmanship. And (4) Fairfax was a one-issue case where the contested issue was obvious. Here, the claims were complex and there was broad potential for expert discovery on any number of topics.

The Court ultimately holds that “the mere fact that [Defendant] may have known, expected, or even anticipated that plaintiffs would designate damages experts does not, under the requirements set forth in the Code of Civil Procedure, place any responsibility on [Defendant] to anticipate what experts plaintiffs might designate and in anticipation of that designation designate rebuttal experts in its initial disclosure.” Which, to me, goes past distinguishing Fairfax, and actually rejects its core holding or limits it to circumstances of subjective bad faith.

Writ granted.

Practically speaking, I always thought Fairfax made sense. Expert discovery in California tends to happen super late. It is not unusual for some experts to be deposed right before or even during trial. Permitting a party to disclose experts on obvious topics only in a supplemental only makes that worse. 

That said, I also appreciate that the Fairfax rule is not really tethered to the text of the Discovery Act. Read literally, Code of Civil Procedure § 2034.280—the statute addressed to supplemental disclosure—does not prevent a party from waiting to see the other side’s initial disclosure before deciding to disclose an expert of its own on that topic. 

It is also worth noting that the Court here seems to be pretty put off by Plaintiff’s briefing on the writ. Lots of adjectives and hysteria. Also some pretty misleading quoting of the record. This is a very bad thing for a court to say about your brief: “Plaintiffs are less than candid.” So it seems like maybe the Court of Appeal thought Plaintiff had put one over on the trial judge. Which is further supported by the lengthy discussion on the nature of discretion and its abuse, and how a finding of abuse of discretion on appeal does not necessarily mean that the trial judge is out of his or her mind. 

Finally, I have a mild issue with some of the nomenclature used in this opinion. The Court interchangeably refers to “supplemental” and “rebuttal” experts. For someone steeped in federal practice, that might be a distinction without a difference. But it state court, a “rebuttal” expert is is a special thing: An expert, who does not need to be disclosed, who testifies to impeach an opposing expert at trial. See § 2034.310(b); Tesoro del Valle Master Homeowners Assn. v. Griffin, 200 Cal. App. 4th 619, 641 (2011). The impeachment generally takes the form of contesting a foundational fact that was integral to the opposing expert’s opinion. A rebuttal expert, however, is expressly prohibited from contradicting the opposing expert’s opinion. § 2034.310(b). And “trial courts are to strictly construe the term ‘foundational fact’ so as to ‘prevent a party from offering a contrary opinion of his expert under the guise of impeachment.’” Mizel v. City of Santa Monica, 93 Cal. App. 4th 1059, 1068 (2001).