2012-00117174-CU-PA

Patrick Widderburn vs. Gerald Daino

Nature of Proceeding: Motion to Augment Expert Witness List

Filed By: Fitzsimmons, Debra A.

Defendant’s Motion to Augment Expert Witness List is granted. CCP 2034.610,
2034.620.

This case concerns an automobile-pedestrian accident in which plaintiff’s knee was
injured. Defendant timely engaged in the expert exchange on September 16, 2013.
Defendant listed only plaintiff’s treating physicians. Plaintiff listed her treating
physicians and a retained expert, Dr. Duffy. Defendant determined that it was
necessary to name a retained expert, but defendant states it took time to get
authorization to hire the expert. As a result, the supplemental exchange, as permitted
by CCP 2034.280, occurred two days late, on October 9, 2013. Defendant seeks relief
under CCP 2034.610 and 2034.620 to name the retained expert who was listed in the
late-served supplemental designation, Dr. Peter Sfakianos.

The original trial date was November 5, 2013. On defendant’s motion, the trial date
was continued to December 2, 2013; however the parties agreed before Judge Hight
that all of the expert disclosure dates would remain as to the first trial date.
On September 23, 2013, at the MSC, defendant contends he was surprised to learn
that plaintiff contends that he will have premature arthritis with required cortisone
injections. Defendant determined it needed to retain an expert but due to the time it
took to receive authorization, and counsel’s confusion as to the due date for the
supplemental exchange, the supplemental designation was two days late.
Accompanying the supplemental designation was a request by defendant to plaintiff to
stipulate to the late added expert. (Ex. D of Moving papers)

Pursuant to CCP 2034.610, the court can grant leave to augment an expert witness list
if the motion is made in sufficient time in advance of the time limit for the completion of
discovery to permit the deposition of any expert to be taken within that time limit.
Under exceptional circumstances, the court may permit the deposition to be taken as a
later time. The expert discovery cut-off was 15 days before November 5, 2013, on
October 21, 2013. This motion is made on November 14, 2013, three weeks after the
discovery cut-off. However, defendant promptly notified plaintiff on October 9, 2013 of
her need to amend the expert list. The Court finds that exceptional circumstances
exist because plaintiff’s expert Dr. Duffy’s deposition has been cancelled two times and
has not yet been taken. Therefore, there is no prejudice to allow the depositions of
both experts between now and the trial date on December 2, 2013.

To obtain leave, the moving party must show that the failure to include the expert(s) or
additional topic of testimony was the result of “mistake, inadvertence, surprise or
excusable neglect.” (C.C.P., sec. 2034.620(c)(l)-(2).) Leave must be promptly
requested, (C.C.P., sec. 2034.620(c)(2)(A)), and the moving party must serve all of the
other parties with the proposed augmented expert witness disclosure. (C.C.P., sec.
2034.620(c)(2)(B).) Finally, the moving party must attempt to informally resolve the
issues presented by the motion to augment with the other parties. (C.C.P., sec.
2034.710(c).) These prerequisites apply in the instant application.

The court finds that the serving of the supplemental designation two days late (October
9 instead of October 7), was due to counsel’s excusable neglect. CCP 2034.620.
Leave was promptly requested, and the augmented list was served. Counsel
attempted to informally resolve the issue.

Although CCP 2034.630 imposes mandatory sanctions on the losing party, the court
finds that plaintiff acted with substantial justification in opposing the motion, and
moreover defendant did not request sanctions in compliance with CCP 2023.040.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or urther notice is required.