Evidence – Expert Witness Testimony – Disclosure Requirements

by Low, Ball & Lynch

Patrick Cottini v. Enloe Medical Center
Court of Appeal, Third District (May 21, 2014)

Under the Code of Civil Procedure, parties in a civil case may be asked to provide disclosures of expert witness testimony they intend to offer in trial.  This case considered whether one party who had not filed any disclosure of witnesses could be prevented from calling expert witnesses at all, where the other party’s disclosure was complete, but was not timely. 
Patrick Cottini (“Cottini”) was a wheelchair athlete with incomplete quadriplegia who was hospitalized at Enloe Medical Center (“Enloe”) after sustaining a shoulder injury while training for the Paralympics.  He subsequently sued Enloe for injuries he claimed were sustained based on the negligence and abuse of a dependent adult by Enloe’s employees.
Enloe sent out a demand for exchange of expert witness information pursuant to Code of Civil Procedure § 2034.210, specifying a disclosure date of June 29, 2009.  In the meantime, plaintiff’s counsel sent an objection to the disclosure, claiming that Enloe’s counsel had a conflict with the case, and that none of the actions taken by the defense counsel had any validity.  On June 29, 2009, Cottini’s counsel filed a motion to disqualify Enloe’s counsel.  Enloe’s counsel held off on disclosing experts based on plaintiff’s objection, and suggested that they agree to disclose three days after the hearing on the motion to disqualify.  The disqualification motion was heard and denied.  Subsequently, Enloe’s counsel wrote to plaintiff’s counsel and again indicated that experts should be disclosed.  Given the proximity to trial, Enloe’s counsel suggested a disclosure date four days out, and indicated that if plaintiff did not disclose experts, Enloe would file a motion to exclude plaintiff’s experts from testifying at trial.  Plaintiff did not provide a disclosure, but objected again.  Despite this, Enloe disclosed experts five days later.  Plaintiff’s counsel again objected to the demand “based upon the conflict of interest.”  Two weeks later, when the cutoff date for expert witness discovery had passed, plaintiff had still not disclosed experts, nor had plaintiff made any attempt to depose Enloe’s experts. 
Plaintiff again brought a motion to disqualify, which was again denied.  Plaintiff appealed this ruling, and the court stayed the proceedings pending the appeal.  A year and a half later, after the appeal was denied, trial was rescheduled.  Approximately 50 days prior to the new trial date, plaintiff disclosed experts.  Enloe successfully brought a motion in limine to exclude plaintiff from offering expert witnesses at trial.  The trial court ruled that although neither side had disclosed their experts on time, plaintiff’s refusal to do so was unreasonable, and that the court had the power from an equitable standpoint to exclude the plaintiff’s experts from testifying.  Trial proceeded, and with only defendant’s experts to question regarding causation, plaintiff failed to recover anything.  Plaintiff appealed. 
The Court of Appeal upheld the trial court’s ruling.  The Court noted that Enloe made a timely demand for exchange of expert witness information.  Plaintiff had objected to the same, but there is nothing in the statutes providing for an “objection.”  Instead, plaintiff should have filed a motion for a protective order.  Having failed to do so, plaintiff was obligated to provide the expert information in a timely fashion.  The Court noted that Enloe had made several attempts to meet and confer to secure a mutual exchange date with plaintiff, but without success.  Thereafter, Enloe produced a disclosure that was complete, albeit not timely.  At the time Enloe disclosed, plaintiff still had the opportunity to depose the experts, as well as to make a disclosure himself. 
As such, the Court of Appeal first noted that the trial court had found that plaintiff’s failure to submit expert witness information back in 2009 was not the result of “mistake, inadvertence, surprise or excusable neglect,” as required by statute.  Rather, it was the result of gamesmanship. 

Plaintiff could have filed an expert disclosure on a timely basis, or certainly before the close of expert discovery.  Hence, the trial court had not abused discretion in refusing to continue the trial and allow a late submission of expert witness designation by plaintiff.
Secondly, the Court of Appeal held that the trial court did not abuse discretion in refusing to let plaintiff’s expert testify.  Plaintiff’s argument had been that the statute provides that expert testimony must be excluded only when the objecting party has filed a complete and timelydisclosure themselves.  The Court of Appeal held that although the language of the statute did provide for mandatory exclusion under those circumstances, there was nothing in the statute which prohibited a court from excluding expert testimony where a party had otherwise unreasonably failed to comply with a disclosure.  Since the Court felt that there was ample evidence of the unreasonableness of plaintiff’s position on his late disclosure, the Court held that discretionary exclusion by the trial court was appropriate under the circumstances. 
This case makes clear that where one party has unreasonably failed to comply with an expert witness demand, it is still subject to exclusion of its experts, even if the other side’s response was untimely, but presumably otherwise complete and reasonable, as the court found Enloe’s disclosure here. 
For a copy of the complete decision, see:


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