Du-All Safety, LLC v Superior Court – Case Study

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CASE STUDY PREPARED FROM ORIGINAL PUBLISHED
OPINION
ERNEST A. LONG
Alternative Dispute Resolution
Resolution Arts Building
2630 J Street, Sacramento, CA 95816
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Du-All Safety, LLC v Superior Court 4/18/19
Supplemental Expert Witness Disclosure; as a right
On March 2, 2017, plaintiffs Mark Krein and his wife Lori Krein
(when referred to collectively, plaintiffs) filed their first amended
complaint, based on an accident in November 2015, when Mark Krein, an
employee of Tuolomne Water District, fell from a bridge at his place of
employment and “sustained paraplegic injuries.”
The complaint alleged seven causes of action, only two of which
included Du-All as a defendant: the first, for general negligence, and the
seventh, for loss of consortium. The other five causes of action were
product liability claims, all alleged against the other eleven defendants. It
appears that by May 2018 at least eight of the defendants had been
removed from the case, no fewer than six by dismissal and two by good
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faith settlements. Whether any defendant beyond Du-All remained in the
case is not apparent.
Meanwhile, on March 7, 2018, Du-All filed a motion to continue the
trial, and on March 16, counsel for plaintiffs and Du-All filed a stipulation,
with an order signed by the court, continuing the trial to June 25. The
record reflects that from all indications all parties, including Du-All, fully
complied without compulsion in any discovery in which it was involved,
demonstrating that at all times Du-All and its counsel apparently acted
cooperatively and appropriately. And without gamesmanship.
On May 7, Du-All served its expert witness disclosure, identifying
the two experts it “expected” to call at trial: (1) a health and safety
management consultant, and (2) a structural engineer.
On May 7, plaintiffs served their expert witness disclosure, also
identifying a safety consultant and a structural engineer. In addition,
plaintiffs disclosed five other experts to testify on various topics, as
follows: (1) Tracy Albee, a registered nurse and life care planner, to testify
regarding past and future injury-related needs and costs; (2) Digby
Macdonald, a chemist, to testify to the effects of rust and corrosion;
(3) Robert Johnson, a forensic economist, to testify to past and future
economic losses; (4) Dr. Ted Scott, a physiatrist, to testify to damages and
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injuries and their cause and effects; and (5) Scott Simon, a vocational
rehabilitation consultant, to testify to functional limitations and need for
assistance. That same day, plaintiffs produced their life care plan.
Following receipt of plaintiffs’ expert disclosure and the life care
plan, Du-All determined that supplemental experts would be necessary,
and it retained several supplemental experts to rebut the anticipated
testimony of the experts disclosed by plaintiffs. And on May 25, pursuant
to CCP section 2034.280, Du-All served its supplemental expert disclosure,
listing the following five experts: (1) Darko Babic, a rust expert engineer, to
respond to plaintiffs’ expert MacDonald; (2) Carol Hyland, a life care
planner, to rebut the reasonableness of the life care plan created by
plaintiffs’ expert Albee; (3) Mark Newton, an economist, to rebut plaintiffs’
expert Johnson as to past and future economic losses; (4) Jill A. Moeller, a
vocational rehabilitation consultant, to rebut plaintiffs’ expert Simon on
issues of functional limitations and need for assistance; and (5) Dr.
Maureen D. Miner, a physiatrist, to rebut plaintiffs’ expert Scott on the
nature and extent of Mark Krein’s damages and injuries, including the
cause and effect of those injuries.
On June 4, pursuant to an order shortening time, plaintiffs filed a
motion to strike Du-All’s supplemental disclosure, setting the hearing for
June 7. Plaintiffs argued that Du-All should have disclosed the experts
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identified in the supplemental disclosure in its original disclosure because
these types of experts are commonly used in personal injury cases. And,
plaintiffs argued, Du-All engaged in “gamesmanship” and, moreover,
plaintiffs were prejudiced by the supplemental expert disclosure, but citing
in claimed support only Du-All’s “concern that it would be difficult to
schedule the initially-designated expert depositions before trial. . . .”
On June 4, the same day on which plaintiffs filed their motion to
strike, Du-All filed a motion to continue the trial date because discovery,
both non-expert and expert, had not been completed—indeed, that expert
discovery had not even begun.
On June 6, Du-All filed its opposition to the motion to strike and a
supporting declaration, stating that the supplemental experts were just
that, experts retained after receipt of plaintiffs’ expert disclosure. And,
counsel for Du-All declared, there was no “gamesmanship” involved in its
supplemental expert disclosure.
On June 7, three days after Du-All filed its motion to continue the
trial—and the day Du-All’s motion was set for hearing—the parties
stipulated to continue the trial date to October 29. The stipulation was
entered into before the hearing on plaintiffs’ motion to strike, and was
based on the parties’ desire to accommodate a mutually convenient date
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for the deposition of plaintiff, the orderly depositions of expert witnesses,
and the completion of certain expert testing. The stipulation further agreed
that expert discovery was to remain open until 30 days before the newlyagreed-to trial date.
The same day, June 7, the court granted the motion to continue the
trial, resetting it to October 29. The final item on calendar was the issue of
“the experts,” the entirety of which is reflected in fewer than three pages of
the reporter’s transcript. In part, it was as follows:
“THE COURT: All right. It’s abundantly clear to me that the
defendant failed to comply with the simultaneous rule in disclosing experts
. . . for life care or life planning, for vocational rehab, and for someone
that’s going to be talking about the nature and extent of the Plaintiff’s
injuries. Those three experts Carol Highland [sic], Jill Moeller, and
Dr. Minor may not be expert witnesses in this case because they are not
disclosed. . . . Darko Babic may testify as it’s not necessary—even though
the case really does have the component where rust and corrosion is an
important aspect and everybody has known it for a long time, the fact that
the—those kind of issues—one might have presumed reasonably on the
defense side that the structural engineer expert on both sides would go into
that and it might have—it’s certainly possible that it might have been news
that a chemist was going to be testifying for the other side on the issue of
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rust and corrosion, and so I think that it is reasonable, although I see it as a
close issue frankly. It’s reasonable to have that expert testify and be named
in the supplemental declaration for experts. That would be my view after
having read the paperwork.
“MR. SHANAGHER [counsel for Du-All]: Couple of comments,
your Honor?
“THE COURT: I already made my decision, I don’t know what
you’re going to comment for. You don’t get to try to talk me out of it at this
point.
“MR. SHANAGHER: Okay. All right. Fair enough. The only thing
that was not clear, was there was one other expert. I think that you
mentioned Miller, Minor, and Highland [sic].
“THE COURT: Yes.
“MR. SHANAGHER: But not Mark Newton the economist?
“THE COURT: Oh, no, the economist has to go too. You knew—
you had to have known that—that, one, the other side was going to have
an economist and that you should have an economist, too. The statement
opening the Fairfax case applies in this case.
“MR. SHANAGHER: We respectfully disagree with, your Honor.
“THE COURT: All right.”
On July 5, Du-All filed a motion for reconsideration based on a new
fact, the four-month trial continuance. The motion argued that the trial did
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not take into consideration its order granting the continuance, which
eliminated any possible prejudice plaintiffs may claim, and, further, that
the parties still had not commenced expert discovery.
On July 25, plaintiffs filed their opposition, relying on Fairfax v. Lords
(2006) 138 Cal.App.4th 1019, to argue Du-All should have identified the
supplemental expert witnesses in its original disclosure. Plaintiffs did not
identify any actual prejudice they sustained, instead arguing that the
supplemental designation was “inherently prejudicial.” Du-All filed a
reply, and on August 7, the trial court denied Du-All’s motion for
reconsideration in a one-line order, providing no reason for its denial.
On August 23, 2018, Du-All filed a petition for peremptory writ. The
First District Court of Appeal asked for opposition, which was filed on
September 4. On September 26, the DCA issued an alternative writ of
mandate. Oral argument then followed.
The 1st DCA began its opinion by pointing out that under CCP
section 2034.210, subdivision (a), a party may demand a mutual and
simultaneous exchange of each expert witness that any party “expects to
offer in evidence at . . . trial.” And section 2034.260, subdivision (b)(1),
requires an expert witness disclosure to list every expert “that the party
expects to offer” in evidence at trial. Du-All did that, identifying the two
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experts it intended to call, a health and safety management consultant
safety and a structural engineer.
The statutory scheme provides that following review of the experts
the other side has disclosed, a party may file a supplemental expert
witness disclosure. This is under section 2034.280, which provides that
“within 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.”
There is no dispute that Du-All timely and simultaneously
designated its initial experts. And also no dispute it timely designated its
rebuttal experts in the same fields as plaintiffs’ initially designated experts.
The California Judges Discovery Benchbook provides:
“A party that has participated in the exchange of expert witness lists
may supplement its list without a court order, provided that (CCP §
2034.280)
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“● It submits its supplemental list to the other parties within 20 days
after the exchange.
“● Any newly designated expert will express an opinion only on a
subject to be covered by an expert designated by an adverse party.
“● It has not previously listed any expert witness on that subject.
“● The supplemental list is accompanied by an expert witness
declaration . . . .
“● It makes each newly designated expert immediately available for
a deposition.” (California Judges Benchbook: Civil Proceedings—
Discovery (CJER 2d ed. 2012) § 23.23, pp. 473–474.)
A leading California treatise on discovery describes “Supplementing
Expert Witness Information” this way: “Second Thoughts: As the trial
date draws near, the litigants sometimes will change their minds about the
need for expert testimony. One party may initially decide that a particular
aspect of the case does not require expert testimony. Then, the initial
exchange of expert witness information reveals that another party has
designated one or more experts to testify in this area. This may cause the
party who has not listed an expert to decide that the safer course is to
retain one. Section 2034.280 offers a way to effectuate this change of mind.
It provides a window of opportunity after the initial exchange during
which a party may have a right to make a supplemental expert witness
designation. In this respect supplementation of an expert witness under
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Section 2034.280 is different both from augmenting an expert witness list
and from making a tardy submission of one. These latter steps are not a
matter of right; they require leave of court.” (1 Hogan & Weber, Cal. Civil
Discovery (2d ed. 2005) Expert Witness Disclosure, § 10:11, pp. 10-32 to 10-
33, footnotes omitted.)
The leading practice treatise puts it similarly: “Supplemental expert
witness lists: Sometimes, the exchange reveals that one party plans to call
experts on subjects the opposing party assumed would not require expert
testimony. In such cases, the opposing party has the right to supplement
its expert witness exchange by adding experts to cover subjects on which the
other party indicates it plans to offer expert testimony, and on which the
opposing party had not previously retained an expert to testify.” (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2018) ¶ 8:1686, p. 8J-18.)
The trial court’s ruling here reads into the statute obligations that do
not exist: that a party must not only initially disclose every expert witness
it expects to call at trial, but also every expert witness it anticipates using to
rebut the experts the other side might designate as an expert. This
interpretation is not supported by the plain language of section 2034.210,
which requires only that a party designate the experts it expects to call at
trial. Indeed, if plaintiffs’ interpretation were correct, there would be no
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need for section 2034.280. In short, the Legislature contemplated that when
a party designates an expert, it is possible the other side might want to
designate a rebuttal expert on the same topic.
Staub v. Kiley (2014) 226 Cal.App.4th 1437 is persuasive. There, in a
medical malpractice case, the trial court granted defendants’ in limine
motion precluding plaintiffs’ expert witnesses from testifying, on the
ground plaintiffs unreasonably failed to timely disclose their designated
experts, and then entered judgment for defendants following their
successful motion for nonsuit. The Court of Appeal reversed, with the
following observations:
“… plaintiffs cannot be said to have unreasonably failed to comply
with defendants’ expert witness demand, so as to justify excluding
plaintiffs’ experts’ testimony. Although section 2034.300 does not provide
explicit guidance as to how a court should decide if the party’s failure was
reasonable or unreasonable, the record does not support the trial court’s
implicit conclusion that plaintiffs behaved so unreasonably as to warrant
exclusion of their experts’ opinion testimony.”
“Failure to comply with expert designation rules may be found to be
‘unreasonable’ when a party’s conduct gives the appearance of
gamesmanship, such as undue rigidity in responding to expert scheduling
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issues. (Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504.)
The operative inquiry is whether the conduct being evaluated will
compromise these evident purposes of the discovery statutes: ‘ “to assist
the parties and the trier of fact in ascertaining the truth; to encourage
settlement by educating the parties as to the strengths of their claims and
defenses; to expedite and facilitate preparation and trial; to prevent delay;
and to safeguard against surprise.” ’ ” (Staub, at 1446–1447.)
The Staub court added this: “Our conclusion is bolstered by the fact
that the order excluding plaintiffs’ experts from testifying at trial was in
effect a terminating sanction, as it eviscerated plaintiffs’ case. The ‘general
rule is that a terminating sanction may be imposed only after a party fails
to obey an order compelling discovery . . . .’ (New Albertsons, Inc. v.
Superior Court (2008) 168 Cal.App.4th 1403, 1426.) Here, there was no
history of discovery abuse by plaintiffs which would warrant the
imposition of a terminating sanction. This case is not remotely on a par
with the type of case in which a sanction of this type is warranted. (Cf.
Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1117)” (Staub, at p. 1448.)
While the effect here might not be a nonsuit, to force Du-All to
defend against the testimony of plaintiffs’ four experts without experts of
its own could be said to “eviscerate” its defense, at least to the extent of the
issues on which the experts would testify.
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Fairfax, 138 Cal.App.4th 1019, the case primarily relied on by
plaintiffs—and the one case cited by the trial court in its brief holding—is
easily distinguishable. Fairfax was a medical malpractice case against a
podiatrist. Defendant served a demand for the exchange of expert witness
information, and plaintiff timely designated a retained expert, also stating
he reserved his right to call any treating physicians as witnesses. On the
same date, defendant served a document that purported to be a
designation of expert witnesses, but contained no such information, stating
instead that defendant “ ‘hereby gives notice that he is not designating any
retained experts for the first exchange of expert witness information,’ ”
going on to state that he “ ‘expressly reserves the right to designate experts
in rebuttal to plaintiff’s designations.’ ” Several weeks later, defendant
issued a second designation of expert witnesses, naming two witnesses
designed to counter plaintiff’s expert, also purporting to reserve the right “
‘to provide a supplemental designation of experts regarding all issues for
which plaintiff designates an expert.’ ” Over plaintiff’s objection, the court
allowed defendant’s experts to testify, and the jury returned a defense
verdict.
The Court of Appeal reversed, beginning its opinion with the
observation that the statute governing the exchange of expert information
“required a ‘simultaneous’ exchange of information, in which each side
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must either identify any expert witnesses it expects to call at trial, or state
that it does not intend to rely upon expert testimony. When it comes to
issues that both sides anticipate will be disputed at trial, a party cannot
merely ‘reserve its right’ to designate experts in the initial exchange, wait
to see what experts are designated by the opposition, and then name its
experts only as purported ‘rebuttal’ witnesses.” (Fairfax, at p. 1021.) “The
effect of defendant’s expert designation was to delay his own list of
‘expected’ witnesses until after he had seen the list put forth by plaintiff.”
“Plaintiff designated only one retained expert, to address the only real
disputed issue in this case . . . . Because defendant had every reason to
anticipate such a designation, he had a corresponding obligation to
designate whatever expert he expected to have testify on the issue at the
same time.” Defendant “had no right to simply delay his designation of
retained experts until after he had the opportunity to view the designation
timely served by plaintiff,” and the trial court erred by refusing to strike his
designation. The Court in that case concluded the “wait to see” approach
would not be allowed.
First, unlike the defendant in Fairfax, Du-All complied with the
statute in its initial disclosure, naming the two experts it “expected” to call.
Second, there was prejudice in Fairfax, the improper expert testimony
the court allowed that resulted in the defense verdict. Here, there was no
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prejudice found, indeed, even meaningfully attempted to be shown by
plaintiffs, whose fundamental contention on the issue below is that there
was “inherent prejudice.” Importantly, the court had continued trial to
October 29, with expert discovery to remain open until 30 days before trial.
Third, and again unlike the defendant in Fairfax, whose wait to see
approach was “his express intent” (Fairfax, at p. 1026), indicating what
could be considered gamesmanship, there is no gamesmanship here.
Neither Du-All “nor its counsel engaged in actions that can be
characterized as gamesmanship, nor did they engage in a ‘comprehensive
attempt to thwart the opposition from legitimate and necessary discovery,’
justifying exclusion of evidence.” (Staub, at p. 1447, quoting Zellerino, at
p. 1117.)
Attempting to make a case to the contrary, plaintiffs assert that
Du-All “Engaged in a Pattern of Unreasonable Conduct,” a statement
purportedly supported by the various items set forth in bullet-point
fashion for three pages in the return. Passing over whether the items in
fact demonstrate any “unreasonable conduct,” the fact is that every single
item on those pages deals with scheduling issues, all in or around May and
June 2018. This is hardly a “pattern of misconduct.” Not only that, most of
these items were brought to the trial court’s attention in the context of the
motion to continue trial, to which plaintiffs stipulated.
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Finally, and perhaps most importantly, Fairfax, at p. 1019 was
essentially a one-issue case—whether defendant committed malpractice;
this was “the only real disputed issue in the case.” This necessarily meant
that defendant had to know what the issue was, and thus what expert he
“expected” to call. This is not so here, and plaintiffs have not
demonstrated that Du-All always expected to retain experts in the various
fields of expertise set forth in the plaintiffs’ initial disclosure, and therefore
“had to have known” that plaintiffs were going to call certain experts. The
Justices note that the expert disclosure statute merely requires a party to
designate an expert whose opinion the party “expects to offer in evidence
at . . . trial.” (§ 2034.210, subd. (a).) So, the mere fact that Du-All may have
known, expected, or even anticipated that plaintiffs would designate
damages experts does not, under the requirements set forth in the Code of
Civil Procedure, place any responsibility on Du-All to anticipate what
experts plaintiffs might designate and in anticipation of that designation
designate rebuttal experts in its initial disclosure.
Here, Du-All disclosed the experts it expected to call at trial. Then,
when plaintiffs disclosed five other experts, and, it must be emphasized,
also produced a life care plan, Du-All retained and designated experts to
rebut plaintiffs’ position, including its own expert on a life care plan. This
is the precise reason why the Legislature codified the right to designate
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rebuttal experts. The trial court’s denial of this enumerated right by
placing limitations not found in the Code of Civil Procedure was an abuse
of discretion.
In short, Du-All had a right to do what it did. And the trial court’s
order was error, especially as Du-All complied with its disclosure
obligations, there is no indication it acted unreasonably or engaged in
gamesmanship, and there was no prejudice to plaintiffs.
A peremptory writ of mandate shall issue directing respondent
superior court to vacate its order granting in part plaintiffs’ motion to
strike Du-All’s supplemental disclosure of expert witnesses and to enter a
new and different order denying the motion in its entirety. Du-All shall
recover the costs incurred in this writ proceeding.
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