As is the nature of litigation, plaintiffs and defendants often
view a case differently. Whether an issue does or does not require
expert testimony is no exception. A plaintiff may think that expert
testimony is required on an issue that defendant thinks requires no
expert testimony at all. So, not surprisingly, the plaintiff may
disclose an expert on an issue that the defendant does not disclose
an expert on. What happens if the defendant (or plaintiff if the
tables were turned) now wants to supplement their expert
disclosure?
California Code of Civil Procedure Section 2034.280 allows for the
supplemental exchange of experts. Subsection (a) provides that
"[w]ithin 20 days after the exchange described in Section
2034.260, any party who engaged in the exchange may submit a
supplemental expert witness list containing the name and address of
any experts who will express an opinion on a subject to be covered
by an expert designated by an adverse party to the exchange, if the
party supplementing an expert witness list has not previously
retained an expert to testify on that subject."
Section 2034.260(a) provides that "[a]ll parties who have
appeared in the action shall exchange information concerning expert
witnesses in writing on or before the date of exchange specified in
the demand" and subsection (b) describes the exchange as
either "(1) [a] list setting forth the name and address of any
person whose expert opinion that party expects to offer in evidence
at the trial" or "(2) [a] statement that the party does
not presently intend to offer the testimony of any expert
witness."
Thus, the plain language of the statutes allow a party to submit a
supplemental expert witness list within 20 days of the initial list
exchange if three criteria are met: (1) the party participated in
the initial exchange by either (a) providing a list setting forth
the name and address of any person whose expert opinion the party
expects to offer in evidence at trial or (b) providing a statement
that the party does not presently intend to offer the testimony of
any expert witness; (2) the supplemental expert will opine on an
issue "covered by an expert designated by an adverse party to
the exchange"; and (3) the party listing the supplemental
expert "has not previously retained an expert to testify on
that subject." When these criteria are met, you should be home
free and able to supplement your expert disclosures.
Even if you satisfied these statutory requirements, your opponent
may still argue that you should have anticipated their expert and
thus you are barred from supplementing.
Your opponent will cite Fairfax v. Lords, 138 Cal. App.
4th 1019 (2006), but your case will likely be
distinguishable.
First, in Fairfax, the court's finding that the
defendant had violated the statute governing witness designations
relied on the fact that the defendant had violated the
"requirement of a 'simultaneous' exchange" (i.e.,
CCP Section 2034.260(a)): "[Defendant's initial] list
includes not a single name of any witness Lords 'expected'
to call." Defendant also did not provide a statement that it
did not intend to offer the testimony of any expert witness. Point
out your compliance with Section 2034.260(a).
Second, the defendant's counsel admitted it was his intent to
hold back expert designations until he saw the plaintiff's
expert list: "The effect of Lords' expert designation was
to delay his own list of 'expected' witnesses until after
he had seen the list put forth by Fairfax. Lords does not deny that
this was his express intent, and instead argues it is only
'prudent' for a defendant to do so." Of course, you
should not intend to sandbag your opponent, and you should make
that clear to the court. More importantly, you should explain how
you could not have planned the alleged sandbagging.
Regardless, some courts will rely on Fairfax and deny the
supplementation even when the code of procedure has been diligently
met. Therefore, when you are preparing for expert discovery, you
should consider very carefully not just which expert you need to
prove your case, but who you think the other side might want to
prove their case. If there is even a chance that the other side
will disclose an expert that you have no interest in disclosing,
but you would want the chance to respond (with your own expert) to
their expert, then think very hard about whether you will disclose
someone instead of taking your chances and waiting to supplement.
You may be worried about opening the door to their supplemental
expert disclosure. That is a genuine risk to consider. But, you
should also be concerned about a judge slamming the door on your
expert.
This article was also published in the Daily Journal on March 4, 2015.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.