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. ...The trial court erred by acquiescing in it.
Section 2034.260 of the Code of Civil Procedure requires that all parties exchange information concerning expert witnesses on or before the date set for the exchange.
Except for certain exceptions, the Code states that the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to list that witness as an expert under Section 2034.260.
In Fairfax v. Lords , the Court of Appeal expressly rejected the idea of a party gaming the system' by not identifying any expert witnesses in the first go around, waiting to see who the other party designates, and then identifying supplemental' rebuttal witnesses.
The Court of Appeal opened its opinion by stating In this case, we conclude that simultaneous' means occurring at the same time.' In this case the defendant (Lords) exchanged a First Designation of Expert Witnesses in which he did not designate any experts but stated that he reserved the right to designate rebuttal experts.
After receiving the plaintiff's designation, the defendant submitted a Second Designation of Expert Witnesses in which he now designated purported rebuttal' witnesses.
The Plaintiff moved for an order striking the supplemental designation, which the trial court denied. Plaintiff thereafter brought a motion in limine on the same issue. Defense counsel argued that since he had made the original exchange, he was guaranteed the right to identify any retained experts he chose to hire as rebuttal' experts.
Defense counsel also argued it is simply prudent litigation defense practice to minimize the cost of litigation by allowing plaintiff to declare the issues he intends to retain experts for, and for the defense to then offer appropriate rebuttal experts. It would also be poor litigation strategy for the defendant to designate an expert prior to knowing what type of expert plaintiff has chosen. The Court of Appeal rejected this approach.
There are two significant problems with Lords' reasoning. First, he seems to be assuming there is no way for defendant to determine what claims are at issue in a particular case until plaintiff reveals his expert witness list. That is simply untrue. The complaint itself is a rich source for determining what claims are at issue. Moreover, ordinary discovery is also available.
The second, and more fundamental problem with Lords' argument is that it is simply inconsistent with the clear statutory requirement of a simultaneous' exchange. Even if we agreed that defendants' interests would be better served by a system which allowed them to designate experts only after seeing plaintiffs' list (and it would be difficult to dispute the point), that is simply not an appropriate basis for ignoring the requirements of the statute.
Our system requires that defendants participate in the litigation essentially simultaneously with plaintiff. Section 2034 expressly requires it with respect to expert designations. If Lords would like to see that requirement changed, his remedy is with the Legislature, not the courts.
We therefore conclude the court erred in denying Fairfax's motion to strike Lords' second designation' of expert witnesses. The motion should have been granted, as Lords had no right to simply delay his designation of retained experts until after he had the opportunity to view the designation timely served by Fairfax.
As the California Supreme Court noted, Late disclosure of experts ... frustrates the very purposes of the discovery statutes.