2016-00200095-CU-PA

Geraldine Butler vs. Francisco Velasquez

Nature of Proceeding: Motion to Exclude Defendant’s Supplemental Expert Witness

Filed By: Tarasenko, Kirill

Plaintiff Geraldine Butler’s unopposed motion for an order excluding Defendant Francisco Velasquez’s supplemental expert declaration is granted.

This matter was set for today’s calendar after Plaintiff’s ex parte application for an OST was granted on January 15, 2019. Trial is set for February 4, 2019. Opposition was due on January 22, 2019. No opposition was received.

In this personal injury action, the parties served their initial expert witness disclosures on December 17, 2018. Defendant only disclosed Dr. Mikaelian to provide testimony regarding the nature and extent of Plaintiff’s injuries. Plaintiff disclosed an expert witness to provide testimony regarding her medical bills, including the reasonableness and necessity of those bills and future medical care. On January 7, 2019, 21 days later, Defendant served a supplemental expert designation naming Tracey Albee as a

retained expert for purposes of testifying on the subject of Plaintiff’s medical bills and future medical care. Plaintiff now moves to strike Defendant’s supplemental expert witness designation.

CCP § 2034.260 requires each party to simultaneously indicate by a set date either any expert witnesses it “expects to offer in evidence” at trial or that it does not intend to “offer the testimony of any expert witness.” (CCP § 2034.260.) Pursuant to CCP § 2034.280 “[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.” (CCP § 2034.280(a).) With respect to issues that both sides “anticipate will be disputed at trial,” a party may not “reserve its right” to designate experts in the initial exchange, wait to see what experts are designated by the adversary, and then name its experts as purported “rebuttal” witnesses. (Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1021 [emphasis added].)

“[O]n objection of any party who has made a complete and timely compliance with Section 2034.270, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: (a) List that witness as an expert under Section 2034.260. (b) Submit an expert witness declaration. (c) Produce reports and writing of expert witnesses under Section 2034.270. (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).” (CCP § 2034.300.)

Here, issues regarding Plaintiff’s medical billing and potential future medical care were ones which Defendant should reasonably have anticipated given Plaintiff’s billing and future medical expenses were the focus of this case in which liability has been admitted. In fact, Defendant’s MSC statement indicated that “[t]here is a dispute as to some, but not all, of the alleged injuries of each plaintiff, along with a dispute as to the necessity of specific medical treatment, as well as related costs.” (Tarasenko Decl. Exh. E at 2:12-14.) Defendant was on notice of these issues and should have expected to offer an expert on the subject at the time of the initial exchange. Defendant should have named the expert on his initial disclosure and his attempt to designate an expert on the topic by way of a supplemental designation is improper.

Moreover, even if Defendant could properly supplement the disclosure, which he could not, the supplemental disclosure was served on January 7, 2019, 21 days after the initial expert disclosure on December 17, 2018. CCP § 2034.280 requires supplemental disclosures to be made within 20 days of the original exchange. (CCP § 2034.280(a).)

The decision to grant relief from the failure to designate an expert witness is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of that discretion. (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950; Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.)

Here, not only was the supplemental expert designation improper, but also untimely. For each of these reasons, the motion must be granted. Saliently, Defendant has not opposed the motion. Separate from the foregoing, the Court views Defendant’s lack of

opposition as tantamount to a concession that the motion to exclude should be granted. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].)

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