Du-All Safety, LLC v. Superior Court

Summary

Mark Krein, an employee of Tuolomne Water District, fell from a bridge at his place of employment and "sustained paraplegic injuries." Mark Krein and his wife Lori Krein filed their first amended complaint against Du-All Safety, LLC (Du-All), among others, alleging two causes of action for general negligence, and loss of consortium. Du-All served its expert witness disclosure, identifying the two experts it "expected" to call at trial. Then plaintiffs served their expert witness disclosure, also identifying a safety consultant and a structural engineer. In addition, plaintiffs disclosed five other experts to testify on various topics. Following receipt of plaintiffs' expert disclosure, Du-All determined that supplemental experts would be necessary, and it retained several supplemental experts to rebut the anticipated testimony of the experts disclosed by plaintiffs. Pursuant to Code of Civil Procedure Section 2034.280, Du-All served its supplemental expert disclosure. Plaintiffs filed a motion to strike Du-All's supplemental disclosure, which the court granted. Du-All filed a petition for a writ of mandate directing the superior court to vacate its order, arguing that the court abused its discretion in granting the motion.

Petition granted. The statutory scheme provides that following review of the experts the other side has disclosed, a party may file a supplemental expert witness disclosure. Section 2034.280. There 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. The leading practice treatise puts it similarly: "Sometimes, the exchange reveals that one party plans to call experts on subjects the opposing party assumed would not require expert testimony. In such cases, the opposing party has the right to supplement its expert witness exchange by adding experts to cover subjects on which the other party indicates it plans to offer expert testimony, and on which the opposing party had not previously retained an expert to testify." Weil & Brown, Cal. Practice Guide. Thus, the trial court's order was error. Du-All complied with its disclosure obligations, there was no indication it engaged in gamesmanship, and there was no prejudice to plaintiffs.

— Silva Demirjian