34 Cal. App. 5th 485
Cal. Ct. App. 5th2019Background
- Plaintiffs (Mark and Lori Krein) sued multiple defendants after Mark Krein fell through a bridge floor in Nov 2015; Du‑All Safety, LLC was named on negligence and loss of consortium claims.
- Du‑All timely served its initial simultaneous expert disclosure (May 7, 2018), listing two expected experts: a health/safety consultant and a structural engineer.
- Plaintiffs simultaneously disclosed two experts on similar topics plus five additional experts (life care planner, chemist, economist, physiatrist, vocational rehab), and produced a life care plan.
- Du‑All timely served a supplemental disclosure (May 25, 2018) under CCP §2034.280, naming five rebuttal experts to address plaintiffs’ newly disclosed experts.
- Plaintiffs moved to strike Du‑All’s supplemental disclosure; the trial court struck four of the five supplemental experts. Du‑All sought writ relief; the Court of Appeal granted the writ and ordered the trial court to deny the motion to strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Du‑All properly served supplemental expert disclosures under CCP §2034.280 | Du‑All should have disclosed the rebuttal experts in the initial simultaneous exchange; the supplemental designations are inherently prejudicial and indicative of gamesmanship | Du‑All complied with the statutes: it timely disclosed expected experts and timely served supplemental rebuttal experts after plaintiffs’ disclosures | Court: Du‑All complied with the statutory scheme; supplemental rebuttal disclosures were permissible and the trial court abused its discretion in striking them |
| Whether exclusion was justified by prejudice or misconduct | Plaintiffs claimed prejudice from late disclosure and argued Du‑All ‘‘had to have known’’ plaintiffs would designate certain experts | Du‑All showed no gamesmanship, no discovery abuse, and that the trial was continued and expert discovery remained open | Court: Plaintiffs failed to show actual prejudice or discovery abuse; exclusion was unwarranted |
| Applicability of Fairfax v. Lords to bar supplemental rebuttal experts | Plaintiffs relied on Fairfax to argue parties cannot ‘‘wait to see’’ and then identify experts | Du‑All argued Fairfax is distinguishable because it involved deliberate withholding and a one‑issue case; here Du‑All made an initial simultaneous disclosure and later used the statutory supplemental window | Court: Fairfax is distinguishable and not controlling; statutory supplemental disclosure right applies |
| Whether striking rebuttal experts amounted to an impermissible terminating sanction | Plaintiffs argued the strike was proper to enforce disclosure rules | Du‑All argued striking essential rebuttal experts would eviscerate its defense on damages and other contested issues | Court: Striking rebuttal experts without evidence of gamesmanship or prejudice improperly deprived Du‑All of statutory rights and could unduly impair its defense |
Key Cases Cited
- People v. Jacobs, 156 Cal.App.4th 728 (legal principles limiting exercise of discretion)
- Fairfax v. Lords, 138 Cal.App.4th 1019 (plaintiff relied on limitation on ‘‘wait and see’’ expert designations)
- Staub v. Kiley, 226 Cal.App.4th 1437 (exclusion of experts requires unreasonable conduct or gamesmanship; terminating sanctions disfavored)
- Zellerino v. Brown, 235 Cal.App.3d 1097 (example of discovery misconduct justifying exclusion)
- Mateel Environmental Justice Foundation v. Edmund A. Gray Co., 115 Cal.App.4th 8 (statutory interpretation standard when excluding experts)
- Boston v. Penny Lane Centers, Inc., 170 Cal.App.4th 936 (abuse of discretion standard for excluding expert testimony)