2015-00180152-CU-PA

Katherine Calhoun vs. American River Raft Rentals, Inc.

Nature of Proceeding: Motion for Leave to Augment or Amend Expert Witness Information

Filed By: Curtis, Lance J.

Plaintiff’s motion for leave to augment or amend her expert witness disclosure to include Craig Enos, an economist, is ruled on as follows.

Moving counsel failed to comply with CRC Rule 3.1110(b)(3).

Factual Background

This is a personal injury action arising from a motor vehicle accident on 8/17/2013. The lawsuit was commenced on 6/5/2015 and trial was originally set for 9/5/2017. However, at plaintiff’s request, the trial date was continued and is currently set for 1/30/2018.

Pursuant to Code of Civil Procedure §2034.610 et seq., plaintiff seeks to augment or amend her expert witness disclosure by adding Mr. Enos, an economist who can testify to the present cash value of the course of future care recommended by plaintiff’s other retained experts.

Defendants oppose, arguing that the present motion was not timely brought because

(1) there will not be sufficient time for Mr. Enos to get up to speed and have his deposition completed by the statutory expert deposition cutoff on the 15th day before the 1/30/2018 trial date and (2) defendants will not have sufficient time to locate and retain their own economist in the few remaining days prior to commencement of trial. The opposition further asserts that plaintiff has known from the inception of this case she was in need of future medical care and thus, knew or should have known of the need for an economist to testify to the present value of the costs of such future treatment but despite having two recent opportunities to disclose experts, plaintiff unreasonably failed to disclose the necessary economist. Finally, defendants maintain they will be prejudiced by the granting of such belated relief since they will lose critical time from their final trial preparation by having not only to depose another expert but also to locate and retain their own economist who will, in turn, need to be immediately readied for both deposition and trial.

Applicable Statutes

Code of Civil Procedure §2034.610 provides in pertinent part:

(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the

following:

(1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.

(2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.
(b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time. (Underline added for emphasis.)

Code of Civil Procedure §2034.620 provides in its entirety:

The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.
(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.
(c) The court has determined either of the following:
(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.
(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.
(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.

(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

(Underline added for emphasis.)

Analysis

First, pursuant to Code of Civil Procedure §2034.620(a), this Court has taken into account the extent to which defendants have relied on plaintiff’s list of expert witnesses but here, plaintiff is not making any significant change to her lineup of experts but merely seeks to add an economist who can provide limited testimony related to the

present value of future medical treatment recommended by other previously disclosed experts. Thus, the belated addition of one expert whose testimony will be limited in scope will as a result of defendants’ reliance on plaintiff’s earlier expert disclosure cause little more than scheduling difficulties for the parties.

Second, the opposition has not demonstrated how the addition of this one limited expert might somehow hinder defendants’ ability to maintain their defense on the merits and the Court cannot discern any reason why it might limit their defenses at trial, especially if defendants are given an opportunity to not only depose plaintiff’s new expert but also to retain their own to rebut the new expert’s anticipated testimony.

Third, although the Court is inclined to agree that plaintiff should have known of the need for the proposed new expert long ago and should have included him in the two previous disclosures, this alone does not mandate denial of this motion since §2034.620(c)(2) permits relief where the moving party shows the proposed expert was not disclosed “as a result of mistake, inadvertence, surprise, or excusable neglect” and not only promptly sought leave to amend but also promptly served a copy of the proposed expert disclosure. Plaintiff has satisfied all these requirements here and defendants do not appear to argue otherwise.

Conclusion

In light of the foregoing, this Court finds that plaintiff has established entitlement to relief under Code of Civil Procedure §2034.610 et seq. and therefore, the present motion to augment plaintiff’s expert witness disclosure shall be GRANTED.

Pursuant to Code of Civil Procedure §2034.620(d), plaintiff’s new expert must be promptly made available for deposition regardless of the statutory expert discovery deadlines and defendants may, if they wish, promptly retain and disclose their own expert to respond to the new expert’s anticipated testimony. Additionally, this ruling shall be without prejudice to defendants’ right under subsection (d) to seek a brief continuance of the current trial date in order to conduct the expert discovery contemplated herein.