Expert Witness Exchange: Service by Mail A Trap for Unwary

   The statutes governing expert witness discovery are part of the Civil Discovery Act at Code of Civil Procedure section 2016.010 et seq. The purposes of the discovery statutes are to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.

  Under the Act, so that the parties can prepare their cases for trial, a party may demand an exchange of expert witnesses. The exchange of expert witness information is governed by Code of Civil Procedure sections 2034.210-2034.310. An expert witness exchange is triggered by a timely written demand made by any party after the initial trial date is set pursuant to section 2034.220.

  Section 2034.260 sets forth the general requirements for the exchange and the information to be provided, which includes a list of the names and addresses of the experts and a declaration by the party’s attorney setting forth the expert’s qualifications, the expected nature of the testimony, and a representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial.

  A party demanding an expert witness exchange may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert in the course of preparing that expert’s opinion. When a demand for documents is made, all parties shall produce and exchange, at the place and on the date specified in the demand, all discoverable reports and writings, if any, made by any designated expert.

  Failure to comply with these requirements can have drastic consequences. Section 2034.300 provides that on objection of any party who has made a complete and timely compliance with Section 2034.260, 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 writings of expert witnesses under Section 2034.270; or, (d) Make that expert available for a deposition.

  Section 2034.230, subdivision (b), states the date on which an expert witness demand may require the information to be exchanged: The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the trial court has found good cause to modify the exchange date. The five-day extension allowed by Code of Civil Procedure section 1013 applies to all discovery methods—section 1013, subdivision (a) provides that the time for performing any act is extended by five days when the demand or notice is served by mail within the state.

  Thus, if an expert witness demand is served by mail, the exchange date must be extended accordingly, i.e, 5 days for mail within California, 10 days outside the state of California, etc. Therefore, the exchange date may be closer to trial than 50 days, leaving less time to complete expert discovery. A demand that failed to extend the exchange date by operation of section 1013 might make the exchange date premature and may invalidate the demand.

  In Staub v. Kiley defendants’ demand failed to extend the exchange date by five days by operation of section 1013; the exchange date should have been January 2, 2012. Defendants’ exchange date was December 27, 2011 and therefore premature under section 2034.260.

  The court held that under these circumstances, defendants lacked standing to bring a motion under section 2034.300 to seek to preclude plaintiffs’ expert witnesses from testifying at trial. Only a party that has itself “made a complete and timely compliance with Section 2034.260” may seek to exclude his opponent’s experts for the opponent’s unreasonable failure to comply with expert discovery.

   Mr. Daymude consults with clients and accepts cases where expert witnesses are required to prove allegations in the complaint, such as in professional malpractice cases. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

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