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Expert — continued from Page 48


Handling “hybrid” expert issues Notwithstanding the guidance in


Schreiber, little authority exists concerning how to designate “hybrid” experts, i.e., experts who may have formed initial “per- cipient” expert opinions unrelated to the litigation, but who are later requested by a party to offer further or additional opin- ions at trial based on additional evidence not initially available to the nonretained expert. Obviously, where any such expert is requested by a party to “form and express opinions” at trial beyond those percipient opinions previously reached independently, the expert might be con- sidered “converted” to “retained” status. An appropriate expert declaration must then be prepared, and the expert must be


furnished for deposition. (C.C.P., §§ 2034.260(b).) The recent case Easterby v. Clark


AFFORDABLE, RESULT-DRIVEN DISPUTE RESOLUTION


(2009) 171 Cal.App.4th 772 [90 Cal.Rptr.3d 81] offers some instruction on this issue. The treating surgeon, identified as a nonretained expert, was shown some medical records by the defense while on the stand during trial and was asked for opinion on those records. The trial court granted the defense’s motion to exclude that, and all of, his testimony. On appeal, the defense argued that the surgeon had been morphed into a “retained” expert. The court of appeal, at pages 782-783, rejected that argument. The Court noted that the opinions formed by the surgeon were primarily based upon what he learned during treatment of the patient, and not based solely on information pro- vided by a litigant in preparation for or at the trial. Because the additional informa- tion was nothing more than an attempt to change the convincing weight of the opin- ions, it did not “morph” the surgeon into a retained expert. However, there are instances where


Fred Rucker, Esq.


Mediations, Arbitrations and Discovery References


100’s of Successful Mediations


32 Years of Trial Experience in Complex Disputes Representing Both Plaintiff s and Defendants


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opinion testimony from nonretained experts which goes beyond the percipient opinions formed is essential to proof of a critical issue at trial, but the nonretained expert cannot be “retained” by the party seeking to produce the evidence. Our firm has encountered this dilemma with forensic pathologists and building inspec- tors, for example, who by virtue of their public job duties and exposure to fresh evidence, were uniquely qualified to form opinions on one or more expert issues critical to the case, but did not possess all of the evidence supportive of their opin- ions. In these instances, we have identi- fied these experts as “retained,” and com- plied with the declaration requirements, even though the expert has not actually been retained. Upon receipt of a notice of deposition of the retained expert, we serve a subpoena on the expert to appear and the date and time set for his or her expert deposition to ensure compliance with C.C.P., § 2034.460. No provision of section 2034.260 (c)


precludes properly handling hybrid experts in this fashion. C.C.P., §


2034.260(c)(3) does not require the attor- ney’s declaration to state that the expert has agreed to be “retained,” but only that (s)he “has agreed to testify at trial.”


The narrative statement Once an expert has been designated


as retained (mandatorily inclusive of parties and their employees), an expert declaration fully compliant with section 2034.260(c)(1-5) is mandatory. It is an understatement that such dec-


larations must be prepared meticulously and with due care. The most common, and potentially most damaging, errors in expert declarations lie in counsel’s failure to properly provide a “narrative statement of the general substance the expert is expected to give.” The second most com- mon error is the failure to list both of the expert’s hourly rates for deposition and for consultation. Of these, mishandling of the “narra-


tive statement of the general substance the expert is expected to give” can be cat- astrophic to the case. A retained expert’s opinion testimony at trial is not permitted to exceed the scope of the description of the “narrative statement of the general substance the expert is expected to give,” and is properly excluded on the motion of an adverse party. (Bonds v. Roy, supra.) Prior to Bonds, courts permitted par-


ties’ experts to testify at trial broadly, fre- quently beyond the subject matter areas set forth in the expert witness declara- tions, regardless of their incompleteness and/or inaccuracies. (See, e.g., Castaneda v. Bornstein (1995) 36 Cal.App.4th 1818 [43 Cal.Rptr.2d 10], Martinez v. City of Poway (1993) 12 Cal.App.4th 425 [15 Cal.Rptr.2d 644.]) In Bonds, however, the Supreme Court overruled these prior decisions and expressly held that an expert witness may not offer expert opin- ion testimony at trial in subject matter areas which were not adequately disclosed within the “narrative statement of the general substance of the testimony that the expert is expected to give” portion of the expert wit- ness declaration required by section 2034(f)(2)(B). (Bonds, supra, 20 Cal.4th at 148-149.)


See Expert, Page 54


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