Expert — continued from Page 44
The primary, definitional distinction
between a retained an nonretained expert is statutorily established in C.C.P., § 2034.210(b): if an expert is a party or employee, or “has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trail of the action” (also referred to as “specially retained,” the expert is a retained expert. For “party related” and “retained”
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experts, the designating party must include his counsel’s expert declaration which must include the information set out in C.C.P., § 2034.260(c)(1-5). One of the most common errors
our offices encounter is a relatively fre- quent failure by counsel to recognize that their clients and/or client’s employ- ees are always considered retained experts if they intend to offer any testi- mony at trial which may include expert opinions. (C.C.P., § 2034.210(b).) This means that, in a medical-malpractice case, for example, if a defendant physi- cian intends to defend his standard of care or deny causation of injury on the stand at trial, an expert declaration is required for him and he is required to be produced for an expert deposition upon service of proper notice by any adverse party. (C.C.P., § 2034.460(a).) The same is also true of any employee of a party who may offer any expert
opinion testimony, even if that employee was not retained to form and express expert opinions at trial. The obvious rationale for applying
the same rules applicable to retained third-party experts to parties and their employees lies in the fact that the attor- ney-client privilege encompasses all such experts. Procedural fairness dictates that an adverse party who may not ethically communicate with that expert party and/or party employee represented by counsel, be properly placed on notice of those areas of expert opinion evidence the party or in-house employee may offer, so any appropriate supplement designation can be undertaken. As a result, an attorney contemplat-
ing calling his client or an employee of his client as an expert at trial balance the pros and cons of introducing potentially critical in-house expert testimony needed for a prima facie showing at trial against the waiver of the attorney client and work product privileges. Consideration also needs to be given that experts are fre- quently permitted to be more extensively cross-examined than lay witnesses. This decision must be made sufficiently well in advance of trial to comply with the declaration requirements. A natural person otherwise qualified
under Evidence Code section 801 to offer “expert” opinions at trial, who may have
See Expert, Page 48
46— The Advocate Magazine JULY 2011
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