Expert — continued from Page 52
Some practitioners, particularly in medical-negligence cases, have reacted to Bonds by offering as little information as possible in their “narrative statement of the general substance the expert is expected to give.” These types of designa- tions typically state that “this expert is expected to testify as to liability, causation and damages.” No case has yet addressed whether such any abridged narrative state- ment constitutes a sufficient disclosure under section 2034.260(c)(2). Such a deliberately and nonspecific abbreviated narrative, particularly in a factually com- plex case, can make it very difficult, if not impossible, for an adverse party to decide whether (s)he requires additional expert testimony in a supplemental designation. Furthermore, exclusion of cumulative experts also becomes potentially problem- atic, when the only subject matter narra- tive description of the anticipated testimo- ny from numerous specialists in differing fields is “liability, causation and damages.” My office prefers to describe the
areas of opinion testimony in far more detail, inclusive of every conceivable sub- ject matter area and subarea of possible opinion evidence in addition to the abbreviated descriptions above. Where the adverse parties have designated numerous retained experts, all of whom will purportedly testify to “liability, causa- tion and damages,” we recommend meet- ing and conferring to insist on further information and a more detailed descrip- tion of testimonial subject matter areas of these experts. Also to be discussed is whether the number of retained and non- retained experts should be pared down to avoid the cost of deposing redundant experts unnecessarily. We have also found that certain
adversaries will sometimes proliferate redundant expert designations for rea- sons of tactical attrition as well as to audi- tion their cadre of experts, reserving for the time of trial a final decision on which will be called to testify. If voluntary coop- eration of counsel is not forthcoming thereafter, a motion for a protective order is worth pursuing on shortened time, if necessary. We find that cost of such a motion usually proves far less than the
54— The Advocate Magazine JULY 2011
cost of deposing numerous redundant adverse experts and retaining others to respond in kind.
Properly disclosing nonretained experts
Despite the simplicity of disclosure
requirements, the frequency of improper mis-designations of nonretained experts abounds. All the Discovery Act requires for proper disclosure of any nonretained expert, is that the party intending to call a nonretained expert simply list each such nonretained expert’s name and address. (C.C.P., § 2034.260(b)(1); Kalaba v. Gray, supra.) The obvious reason for minimum mandatory disclosure of at least the name and address of nonretained experts is necessary so that they can be located and deposed by adverse parties. This follows because a party has no duty to undertake to produce a nonretained expert for dep- osition by an adverse party. Rather, that nonretained expert must be subpoenaed by the deposing party. (Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198, 1203 [272 Cal.Rptr. 324].) It is improper and insufficient to mere-
ly list an entire, nameless class of types of nonretained experts. (Kalaba, supra, 95 Cal.App.4th at 1422-1423.) In that case, the plaintiff listed not a single name or address of any nonretained expert. Instead, Plaintiff merely identified her nonretained experts intended to be called as: “all past or present examining and/or treating physicians.” The trial court’s grant of Defendant’s motion in limine at trial was upheld by the court of appeal as proper under C.C.P., § 2034(j)(1). The court observed that it is not sufficient identification to group witnesses as “all past or present examining and/or treating physi- cians”, but the proponent must identify treating physicians by, at a minimum, her name and address to comply with the letter and spirit of C.C.P., §2034. Failure to specifically list a nonre-
tained expert as an intended expert to be called at trial (as the plaintiff in Kalaba did) deprives the adversary of the oppor- tunity to locate and depose these nonre- tained experts in advance of trial since nonretained experts are not required to be produced by the listing party for
deposition, nor is an expert declaration required setting forth the anticipated areas of trial testimony. (Schrieber, supra, 22 Cal.4th at 37, citing, Hurtado, supra. 222 Cal.App.3d at 1203.) To avoid exclusion of expert testimo-
ny at trial, particular caution should be employed in designating nonretained experts to make sure that accurate name and address information is furnished for each and every such proffered nonre- tained expert.
Proper versus improper supplemental expert designations Another frequent mistake made by
practitioners arises out of a fundamental misunderstanding of the nature and pur- pose for supplemental expert designa- tions under C.C.P., § 2034.280. The two most common mistakes made
in supplementally designating experts, are: (1) improperly attempting to use the Supplemental Designation mechanism as a vehicle for further initial designation (including substituting initially-designated experts); and (2) supplementally designat- ing an expert witness whose area of opin- ion is not responsive to an area of expert- ise initially designated by an adverse party. Basham v. Babcock, supra, 44
Cal.App.4th at p. 1723, held that the restrictions set forth in C.C.P., § 2034(h) (since renumbered C.C.P., § 2034.280(a)), are mandatory and are narrowly construed given the importance of early and simulta- neous exchange of expert witness disclo- sures. (Accord, Bonds, supra, 20 Cal.4th at 146-147.) The facts in Basham were as follows:
The Defendant in a malpractice case ini- tially designated an IME/orthopedist to offer opinions on causation. He later sup- plementally designated a radiologist, also on causation. In holding the radiologist’s opinion properly excluded, the Court held “the plain language of § 2034.280(a) thus holds that a party may only use a sup- plemental expert designation if the party supplementing the expert witness list has not previously retained an expert to testify on that subject.” (Basham, at 1723-1724.) Thus, it is improper for a party to use a
See Expert, Page 56
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