A new case came down this week from the California Second District Court of Appeals.  In it, the Court strictly interprets the law on designation of experts and timely disclosure.  In Perry v. Bakewell Hawthorne LLC, defendants served a demand to exchange expert witnesses, to which plaintiff objected as untimely.  The defendants proceeded to exchange expert information and reports in compliance with the demand; plaintiff did not exchange expert information.  When plaintiff tried to introduce an expert declaration at trial, the court excluded it because plaintiff failed to timely exchange expert information.  The court went farther to hold that the Code of Civil Procedure does not provide for an objection to an untimely demand; the recourse is to seek a protective order, not merely object.

This case underscores the courts’ trend to strictly enforce code requirements when it comes to expert designations.  Of note, many adjusters prefer to defer retaining and designating experts to the last minute before trial, thinking that experts will not be necessary.  However, it just takes one case…  Most of our experts will work with us to accept retentions and allow their designations without performing work until absolutely necessary.  We strongly recommend this over “reserving rights” to designate experts later, as is still common in CD cases, at it appears the courts likely will not honor the reservation and could preclude introduction of expert testimony at trial, if the case proceeds that far.

McCathern attorneys will provide your examiners with timely recommendations for expert retentions and designations to protect from this occurring.

Perry v. Bakewell Hawthorne LLC  B264027

Feb. 3, 2016
Plaintiff’s expert declarations properly excluded where plaintiff unreasonably failed to disclose expert witness information with defendants.
D.J. cite:   2016 DJDAR 1161
California Courts of Appeal – 2nd District

DAILY JOURNAL SUMMARY

Wilson Perry Bakewell Hawthorne LLC and JP Morgan Chase Bank NA, for premises liability in connection with a 2013 fall from a stairway. The trial was set for July 14, 2014. On May 5, 2014, Chase served a demand for exchange of expert witnesses pursuant to Code of Civil Procedure Section 2034.210, which Perry opposed as untimely. Chase and Bakewell exchanged expert witness information. Perry neither participated in the exchange nor designated any expert witness. Bakewell moved for summary judgment. In opposition, Perry submitted, among other things, expert declarations opining that the stairway was in a state of disrepair. Bakewell objected, claiming Perry’s nonparticipation precluded him from using those declarations. The trial court sustained Bakewell’s evidentiary objections and granted summary judgment in its favor. Affirmed. Section 2034.300 allows the trial court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to disclose expert witness information. The trial court, here, presumably determined that Perry had unreasonably failed to disclose his expert witnesses. This determination is reviewed for abuse of discretion. In this case, it was undisputed that Perry chose not to participate in the exchange of witness information. Even if Perry objected to its alleged untimeliness, this court noted that “the Legislature did not provide for objections to demands for exchange of experts.” Rather than filing an objection, Perry should have instead moved for a protective order, which he neither sought nor obtained. Section 2034.260 also required Perry to participate in the exchange. There being ample evidence of Perry’s unreasonable conduct, the trial court properly excluded the expert declarations under Section 2034.300. Partial publication. Opinion by Justice Chavez.