Appellate Court Affirms Trial Court Exclusion of Expert Testimony for Failure to Timely Disclose Expert Witness Information
Cottini v. Enloe Medical Center, C068915 – attached. (download below)
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Defense counsel made a motion in limine to preclude plaintiff from offering expert witness testimony based on the contention that plaintiff’s failure to disclose expert witness information was unreasonable. The trial court agreed, and that decision was upheld on appeal. The Third District reasoned that while C.C.P. §2034.300 did not mandate exclusion of plaintiff’s expert testimony because the defendant did not timely comply with the disclosure date, there is nothing in C.C.P. §2034.300 that would preclude the court from exercising its discretion to exclude the testimony based on the plaintiff’s “egregious violation” of the exchange requirements.
“As we explain, the trial court did not abuse its discretion in concluding Cottini failed to demonstrate “exceptional circumstances” (§ 2034.710, subd. (b)) warranting his disclosure of expert witness information after the discovery cutoff date. It was also within the trial court’s discretion to conclude Cottini’s failure to submit this information was not “the result of mistake, inadvertence, surprise, or excusable neglect.” (§ 2034.720, subd. (c)(1).) Nor did the trial court abuse its discretion in excluding from evidence the testimony of Cottini’s expert witnesses. While section 2034.300, by its terms, did not mandate the exclusion of this testimony because Enloe’s compliance with the expert witness exchange requirements was untimely, we do not read this section to preclude the trial court from excluding expert witness testimony for an egregious violation of the exchange requirements unless the objecting party’s compliance was flawless. We conclude that where the party objecting to expert testimony under section 2034.300 would be entitled to mandatory exclusion of such testimony but for his or her own failure to timely comply with the expert witness exchange requirements, exclusion of the expert testimony is not mandatory, but discretionary. Based on the facts of this case, there was no abuse of discretion.”
PRACTICE POINTER
Make sure your expert designations are on time, comply with the Code, and review this case to note the kinds of “egregious” failure to disclose experts later sought to be offered in order to avoid a similar outcome, which would be fatal to many if not most cases!
