Under what circumstances may a party ‘supplement’ its experts?

Years ago I recommended to a client that we hire a construction defect expert in a case. The client, a thrifty fellow, responded, "But I thought you were the construction expert. Why would I need to hire another expert? A fair question and one that caught me flat footed.

I explained to the client that while I was an attorney whose practice focused on construction law, I was not someone who he would want to take the stand and testify about the engineering design and seismic stability of pilings. For that, he needed an expert.

In construction litigation it's not uncommon for parties and their attorneys to hire "experts." There are even special rules set forth in the California Code of Civil Procedure for disclosing, supplementing and deposing experts, which basically provide as follows:

1. Demand for Exchange of Expert Information: After the court sets a trial date in a case, any party may demand that each party exchange information concerning the experts they intend to have testify at trial;

2. Supplemental Experts: Upon receipt of a party's expert information, a party may supplement their experts (if any) by serving a supplemental expert disclosure identifying experts who will express an opinion on a subject matter covered by an expert designated by an adverse party, if an expert in that subject matter has not been previously retained by that party. The idea here is to give each party a fair shot of proving their case at trial.

3. Deposing Experts: Experts, like other witnesses, may be deposed. However, unlike party witnesses, experts are entitled to be paid for their time by the party deposing the expert. Also, unlike other witnesses, experts may be asked to testify about their "opinions" as opposed to information within their personal knowledge.

In Du-All Safety, LLC v. Superior Court of Alameda County, 34 Cal. App. 5th 485 (2019), the 2nd District Court of Appeal addressed under what circumstances a party may "supplement" its experts by identifying additional experts to testify on subject matters in which the party had not previously designated an expert.

The Du-All Safety Case

In 2015, Mark Krein, an employee of the Tuolumne Water District, fell from a bridge at his place of employment when the floor gave way. He sustained serious injuries and became a paraplegic. Krein and his wife later filed a lawsuit against several engineers, construction contractors and inspectors alleging that defects in the design and construction of the bridge led to his fall.

After the case was set for trial, defendant Du-All Safety, LLC, a safety inspection company named in the lawsuit, disclosed that it was planning on having two experts testify at trial: (1) a health a safety consultant; and (2) a structural engineer.

At the same time, the plaintiffs disclosed that they were having seven experts testify at trial:

1. A health and safety consultant;

2. A structural engineer;

3. A registered nurse who would testify about Krein's past and future injury-related needs and costs;

4. A chemist who would testify about the effects of rust and corrosion leading to the floor giving way;

5. A forensic economist who would testify about Krein's past and future economic losses as a result of being unable to work;

6. A physiatrist who would testify about Krein's medical conditions; and

7. A vocational rehabilitation consultant who would testify about Krein's functional limitations and assistance needs.

After receipt of plaintiff's expert disclosure, Du-All served a supplemental expert disclosure identifying an additional five experts:

1. An engineer who would testify about rust;

2. A life care planner who would testify about Krein's past and future injury-related needs and costs;

3. An economist who would testify about Krein's past and future economic losses as a result of being unable to work;

4. A physiatrist who would testify about Krein's medical conditions; and

5. A vocational rehabilitation consultant who would testify about Krein's functional limitations and assistance needs.

In response, Krein's attorney filed a motion to strike Du-All's supplemental experts, arguing that Du-All should have disclosed these experts in its original disclosure and complaining that Du-All's supplemental disclosure was an act of "gamesmanship." The trial court agreed, basically finding that Du-All "knew or should have known" that the plaintiff would call experts in the five subject areas and that, by failing to designate experts in those areas in its original disclosure, Du-All had waived its right to name its additional experts in its supplemental disclosure.

For those of you who have practiced for an appreciable amount of time, if this seems like an odd result, it was. It also seemed odd to Du-All's counsel, who filed a petition for peremptory writ to challenge the decision.

The Court of Appeal Decision

On Appeal, the 2nd District noted that, while "[w]e generally review a trial court's ruling on a motion to exclude expert testimony for abuse of discretion," "when the exclusion of expert testimony rests on a matter of statutory interpretation, we apply de novo review." In other words, the court would review the case on its face without deference to the decision of the trial court.

The Court of Appeal made short work of the case.

Citing Code of Civil Procedure Sections 2034.210 (which provides that a party may demand a mutual and simultaneous exchange of each expert that any party "expects to offer in evidence ... at trial") and 2034.280 (which provides that "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"), the Court of Appeal stated that "[t]here is no dispute that Du-All timely and simultaneously designated its initial experts. And also no dispute it timely designated its rebuttal experts in the same fields as plaintiffs' initially designated experts." And that, held the court, "ends it":

"The trial court's ruling here reads into the statute obligations that do not exist: that a party must not only initially disclose every expert witness it expects to call at trial, but also every expert witness it anticipates using to rebut the experts the other side might designate as an expert. This interpretation is not supported by the plain language of Section 2034.210, which requires only that a party designate the experts it expects to call at trial. Indeed, if plaintiffs' interpretation were correct, there would be no need for Section 2034.280. In short, the Legislature contemplated that when a party designates an expert, it is possible the other side might want to designate a rebuttal expert on the same topic."

Conclusion

So there you have it. Code of Civil Procedure Section 2034.280 means what it says. The case also underscores the idea underlying California's Discovery Act, that discovery in California is intended to discourage trials by ambush. 