Expert — continued from Page 54
supplemental designation to add addition- al experts testifying on the same subject matters as previously designated experts, or as a means of substituting a new expert for a previously designated expert. By logical extension, a party also may
not use the supplemental designation to designate an expert on a subject that is not “covered by an expert designated by an adverse party to the exchange.” (C.C.P., § 2034.280(a).) This means the supplemental designation also cannot be employed to add new experts that could have been designated in the initial exchange of information, but may have been overlooked by the designating party at the time. Unless the adverse party had designated an expert in that specific area, such a nonresponsive supplemental desig- nation is violative of § 2034.280, will likely result in exclusion of such improperly designated expert(s). When in doubt, the most advisable
course of action is therefore to move as timely as the need is perceived, for leave to augment your initial designation, pur- suant to C.C.P., § 2034.620.
Deposing experts The most important tactical aspect of
expert depositions is expert preparation.
Failure of a party’s expert to disclose at deposition all of his opinions if asked, potentially subjects any undisclosed opin- ions to exclusion. (Jones v. Moore (2000) 80 Cal.App.4th 557 [95 Cal.Rptr.2d 216.]) It is not uncommon that the expert
may not have formed all of his or her opinions at the time of his or her expert deposition. In such event, it is important to make a record of the fact that there may be additional work to be performed or additional areas of opinions to be addressed. The adverse party should then be notified timely if such is the case and, if requested, be given the opportunity to re-depose the expert on such additional areas of opinions. If this is timely under- taken, unstated expert opinions at the expert’s initial deposition might still be admissible and not subject to exclusion under Jones. (See, also, Easterby, supra, 171 Cal.App.4th at 780.) The promptness of such subsequent
disclosure is the pivotal and decisive fac- tor. As the Court in Easterby observed, “a party’s expert may not offer testimony at trial that exceeds the scope of his deposi- tion testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time
when deposing the expert is unreasonably difficult.” (Easterby, supra, 171 Cal.App.4th at 780.)
Concluding thoughts As shown above, most of the com-
mon errors plaguing expert designations, and the resulting consequences, result from the absence of adequate planning and inattention to the detail called for under C.C.P., § 2034.010, et seq. As with any other area of civil litigation, adequate preparation and meticulous thoroughness in preparing expert designations and dec- larations remain key to avoiding inexpert expert designations. Brian Chase is a partner at Bisnar |
Chase, which specializes in auto products lia- bility and serious personal injury litigation. Brian Chase is a past-President of the Orange County Trial Lawyers Association and is cur- rently a Vice-President of Consumer Attorneys of California. He was recognized as Products Liability Trial Lawyer of the year by OCTLA in 2004. He personally argued the landmark non- retained expert witness case of Schreiber v. Estate of Kiser before the California Supreme Court in 1999.
56— The Advocate Magazine JULY 2011
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