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Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association


March 2005 Vol. 28, No. 1

 
 

MCLE Article:  Expert Declarations

Recent decisions have blurred the line between providing too much and too little information in expert witness declarations

By Robert Kahn

Robert Kahn is a litigator in Woodland Hills who specializes in professional malpractice, business litigation, personal injury, and insurance bad faith matters. He represented the plaintiff in Light v. Provident.

 
 


By reading this article and answering the accompanying test questions, you can earn one
MCLE credit. To apply for credit, please follow the instructions on the test.

 
 

Litigation attorneys are familiar with Code of Civil Procedure Section 2034, the expert witness designation statute. Under Section 2034(a), any party may demand the exchange of expert witness information prior to trial. The statute is fairly clear regarding what information must be exchanged. A party may provide either "[a] list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial" or "[a] statement that the party does not presently intend to offer the testimony of any expert witness."1 For retained expert witnesses, "the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney."2 This declaration must be under penalty of perjury and, according to Section 2034(f)(2), must contain the following:

(A) A brief narrative statement of the qualifications of each expert. (B) A brief narrative statement of the general substance of the testimony that the expert is expected to give. (C) A representation that the expert has agreed to testify at the trial. (D) 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. (E) A statement of the expert's hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.

By any standard, the requirement of Section 2034(f)(2)(B) to provide "[a] brief narrative statement of the general substance of the testimony that the expert is expected to give" is extremely vague. Many attorneys interpret these words to only require disclosure of the "issue" the expert will testify about, such as damages or causation or, in medical malpractice cases, the standard of care. Nevertheless, while the naming of an issue is brief, it certainly cannot be characterized as narrative. Indeed, providing a vague description of an expert's testimony in response to the mandate of Section 2034(f)(2)(B) can be a major and costly mistake.

Most litigation attorneys do not research or review Section 2034 when preparing an expert witness declaration--but they should. Section 2034(j) gives the trial court the power to exclude expert testimony if the party fails to "[s]ubmit an expert witness declaration." Although some practitioners might believe that they have complied with this requirement by submitting a document entitled "Expert Witness Declaration," this subsection has been interpreted by the California Supreme Court in Bonds v. Roy to require more than just the declaration itself. The declaration must provide all the information enumerated by Section 2034(f)(2), including the brief narrative statement.3 The Bonds court held that the exclusion sanction in subdivision (j) applies when "a party has submitted an expert witness declaration, but the narrative statement fails to disclose the general substance of the testimony the party later wishes to elicit from the expert at trial."4

Thus, with regard to the brief narrative statement, the devil is most definitely in the details. In Bonds, the defendant in a medical malpractice case tried to elicit testimony at trial from his damages expert on the standard of care. The expert, however, was designated as an expert on damages only and not the standard of care. Moreover, the expert's deposition testimony was limited to the issue of damages. The California Supreme Court affirmed the appellate court's affirmation of the trial court's decision to exclude the expert's testimony on the subject area that was not described in the expert declaration.

The Real Meaning of Bonds

It has been widely argued that Bonds requires more detailed disclosure than what is specified by Section 2034(f)(2). This debate misses the mark. What Bonds actually stands for is the proposition that an expert designation will be deemed inadequate and may result in the exclusion of expert testimony if the designation states that the expert will testify about a specific subject area--and in fact testifies at his or her deposition only about that subject area--but the designating party attempts at trial to have the expert testify concerning a completely different subject area without amending the designation to include that subject area.5

Furthermore, it is apparent from the discussion in Bonds that the party's failure to designate the expert as an expert on the standard of care was not the main reason for the problem with the expert's testimony. Indeed, it was the failure of the expert to testify at his deposition regarding the standard of care that was the primary justification for the exclusion of his testimony. If the expert had testified at his deposition that he intended to offer his opinion on the standard of care, there would have been no prejudice to the other party, assuming the other party had already designated its own expert on the standard of care or had time to designate one in response to the opposition expert's testimony. Nevertheless, Bonds is now being used to justify the exclusion of experts because a designation did not provide sufficient details regarding the expert's intended testimony, even if the expert's testimony will be limited to the same subject area as the one listed in the designation and if there is no prejudice to the other party.6

The possibility of having one's expert witness excluded under Section 2034(f) because of an allegedly insufficient expert witness declaration may lead an attorney to prepare the opposite of a brief narrative statement. However, providing a highly detailed statement of exactly what an expert will testify about is not really a solution. The problem is three-fold.

First, Section 2034 assumes that when experts are designated, they may not have fully prepared their opinions. According to Section 2034(f)(2)(D), an expert declaration must include "[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."7 The statute does not require a representation that the expert is sufficiently familiar with the pending action to submit to a meaningful oral deposition. Consequently, when an expert is not sufficiently familiar, it is difficult to provide details of the testimony that the expert will provide.

Second, if an attorney provides too much detail in the expert declaration, and the expert changes the rationale for reaching his or her opinion or changes an element or detail in his or her analysis, the expert may be impeached by the attorney's declaration. Attorneys' discussions with their experts are not privileged after an expert has been designated as a trial expert.8 Assuming the information provided in the attorney's declaration was provided by the expert, the expert could be impeached by what he or she said to the designating attorney. Likewise, the trial attorney's credibility will suffer if the expert testifies that what the attorney put in the declaration was incorrect.

Third, providing too much information about an expert's testimony in the designation declaration is at odds with the attorney work product doctrine.

Work Product Doctrine

The work of an expert consultant is protected by the attorney work product doctrine,9 which "insures that a party cannot substitute the wits of his adversary's expert for wits of his own in analyzing the case."10 However, under discovery rules, once it appears "reasonably certain that the consultant-expert will give his professional opinion as a witness on a material matter in dispute, the attorney work-product privilege terminates and the expert's knowledge and opinions are subject to discovery and disclosure."11 A party may withdraw a designated expert anytime before he or she is deposed and thereby reestablish the attorney work product privilege.12

Accordingly, designating an expert as a trial witness is a conditional, not absolute, waiver of the work product privilege.13 After an expert is designated there is a conditional waiver and, until an expert is deposed, the work product privilege can be reestablished by withdrawing the expert. Therefore, if an expert decides to change his opinion and becomes unhelpful to the designating attorney before the expert's deposition, the attorney can "undesignate" the expert.

To preserve a party's right to reestablish the work product privilege by withdrawing a expert after the party has designated the expert but before the expert has been deposed, a party should not be required to disclose in the expert witness designation everything the expert did to reach his or her opinions and conclusions in the case. Otherwise, there would be no work product left to protect after the designation, and the designation itself would, as a practical matter, destroy the right to reestablish the work product protection by withdrawing the expert before his or her deposition.

The requirement that a party give an adequate description of what the expert's testimony will be must be harmonized with a party's right to undesignate the expert witness before deposition and reestablish work product protection.14 The work product protection can be preserved if the designating party is required only to describe in the declaration the ultimate opinion the expert intends to render, and not what the expert did to reach his or her opinion. This conclusion is supported by Code of Civil Procedure Section 2034, which requires only that the designation contain a declaration that provides "[a] brief narrative statement of the general substance of the testimony that the expert is expected to give."15

In Bonds, the supreme court held that a party is merely required to disclose enough information to allow the other party to "assess whether to take the expert's deposition...and select its own expert who can respond with a competing opinion."16 If an attorney is required to disclose additional and more detailed information concerning the basis of the expert's opinion, the party will lose the right and option of withdrawing the expert and protecting undisclosed information prior to the expert's deposition.

The dilemma for practitioners is exacerbated when they have to counter-designate an expert pursuant to Section 2034(h), which allows a party to designate an expert on a subject that was not originally anticipated but on which the opposing party has designated an expert. If a counter-designation is necessary, an attorney has only 20 days to find a qualified expert and then must make the expert "available immediately for a deposition."17 The attorney must therefore act fast to find an appropriate expert and ensure that the expert can become sufficiently familiar with the facts of the case to provide effective testimony.

Prejudice and Exclusion

While the existence of prejudice is not required to exclude an opposing party's expert who testifies on matters outside the designation, the absence of prejudice is a strong argument against exclusion of the expert's testimony:

Although there is no statutory requirement that the objecting party has been prejudiced from the nondisclosure in order to object to the expert testimony at trial, absent some showing of prejudice, the court may be more likely to find that the failure to comply with §2034 was not "unreasonable."18

In Williams v. Volkswagenwerk Aktiengesellschaft, a case that predates Bonds, the court of appeal held that former Code of Civil Procedure Section 2037.3 (now Section 2034), as interpreted by California courts, required a party to "disclose the substance of the facts and the opinions to which the expert will testify, either in the witness exchange list, or in his deposition, or both."19 The court also held that a party did not have to disclose specific facts and opinions. Moreover, the court held that to exclude an expert's testimony based on a deficient designation, the complaining party must establish that the expert testimony was admitted contrary to the provisions of Section 2037 and that the admission of such testimony constituted an abuse of discretion that prejudiced the other party. The Williams court concluded that, in the case before it, there were no "new," "surprise," or "undisclosed" opinions and that, even if they were undisclosed, the trial court did not abuse its discretion in permitting the testimony.20 Unfortunately, the supreme court in Bonds did not address the decision in Williams and thus left open the possibility that an expert may be excluded despite the absence of prejudice to the other side.

Although the existence of prejudice to the other party is not mentioned specifically in Bonds or Section 2034 as a requirement for upholding an order excluding an expert's testimony, the supreme court did note that "[t]he trial court stated any expansion of the scope of [the expert's] testimony at that point would be unfair, prejudicial, and a surprise."21

Section 2034 mentions several times that lack of prejudice is a requirement for granting relief under Sections 2034(k) and 2034(l), which address circumstances in which a party may augment or amend a designation or serve a late designation. Therefore, prejudice is a basis for denying a Section 2034(k) or Section 2034(l) motion. Moreover, it follows that prejudice should be a specific requirement for exclusion of an expert when a party claims that the extent of the opposition expert's opinion has not been fully disclosed. Logically, there is no reason to exclude an expert under Section 2034(j) if the other party has not been prejudiced. This is a flaw in the supreme court's decision in Bonds, for without specifically stating that a showing of prejudice is required, the court appears to give trial courts the power to exclude experts for alleged deficiencies in a designation even in the absence of prejudice to the other party.

The unpublished case of Light v. Provident22 is instructive regarding how a miscarriage of justice can occur as a result of the supreme court's failure to make prejudice a specific requirement to justify exclusion of an expert's testimony following an alleged incomplete designation. In Light, a disability bad faith case, the plaintiff timely designated an expert in neuropsychology. The plaintiff's counsel provided an expert witness declaration that stated "said expert will testify as to the medications plaintiff takes and how those medications effect his ability to perform the substantial and material duties of his occupation." After the designation, the expert had the plaintiff undergo neuropsychiatric testing. The test materials were produced, and the plaintiff's expert was deposed regarding the testing. Although there was clearly no prejudice, the court of appeal used Bonds to justify exclusion of the expert's opinion, finding that the expert witness declaration was "insufficient" because it did not describe the testing the expert performed to arrive at his opinion. Notably, Bonds does not address whether it is proper to exclude an expert based on an inadequate declaration even if the expert fully discloses his or her additional opinions at a deposition.

Although an expert is not required to be prepared to give a meaningful deposition at the designation stage, attorneys are well advised to make sure that their experts are fully prepared regarding their opinions and the bases for them before the expert is designated and substantive information is disclosed in the designation. The expert's involvement in drafting or at least reviewing the designation before it is served is an eminently prudent method of decreasing the likelihood that the designation will later be deemed inadequate. However, the extent of the disclosure regarding the expert may result in a waiver of the attorney work product privilege and render meaningless the right to later withdraw the expert before his or her deposition. Until this issue is clarified by the legislature or the courts, an attorney must confront the risk of having an expert excluded. The wise attorney should disclose in the designation all pertinent information about the scope of the expert's testimony and confirm with the expert that the designation accurately reflects the testimony that the expert expects to provide.

If the expert at his or her deposition provides testimony that could be considered outside the description given in the designation, the designating attorney should ask the other side to stipulate that the designation is sufficient. If the opposing counsel refuses, the designating attorney should consider making a prompt motion to augment and/or amend the designation pursuant to Section 2034(k) to include the additional information.

 
 

Endnotes:

1 Code Civ. Proc. §§2034(f)(1)(A), (B).
2 Code Civ. Proc. §2034(f)(2).
3 Bonds v. Roy, 20 Cal. 4th 140, 142 (1999).
4 Id. at 149.
5 Id. at 142, 149.
6 Light v. Provident, 2003 WL 22718206 (Cal. App. 2d Dist. Nov. 19, 2003) (Nos. B158361, B161832) (unpublished), petition for review denied, Feb. 24, 2004. See also Crooks v. Sammons Trucking, Inc., 2001 WL 1654986, *17 (Cal. App. 3d Dist. Dec. 21, 2001) (unpublished).
7 Code Civ. Proc. §2034(f)(2)(D) (emphasis added).
8 County of Los Angeles v. Superior Court, 222 Cal. App. 3d 647 (1990).
9 Code Civ. Proc. §2018.
10 County of Los Angeles, 222 Cal. App. 3d 647.
11 Id. at 654-55.
12 Id. at 655-56.
13 Shooker v. Superior Court, 111 Cal. App. 4th 923 (2003).
14 Kennedy v. Modesto City Hosp., 221 Cal. App. 3d 575, 581 (1990) ("The cardinal rule in construing a statutory scheme is to discover and give effect to the intent of the Legislature. We do not review the particular statute in isolation but in the context of the 'whole system of law of which it is a part so that all may be harmonized and have effect.'") (citing Morrison v. Unemployment Ins. Appeals Bd., 65 Cal. App. 3d 245, 250 (1976)).
15 Code Civ. Proc. §2034(f)(2)(B) (emphasis added).
16 Bonds v. Roy, 20 Cal. 4th 140, 146-47 (1999).
17 Code Civ. Proc. §2034(h).
18 California Practice Guide: Civil Procedure Before Trial ch. 8-13, 8:1713 (The Rutter Group 2003). See Code Civ. Proc. §2034(j).
19 Williams v. Volkswagenwerk Aktiengesellschaft, 180 Cal. App. 3d 1244, 1257-58 (1986).
20 Id.
21 Bonds, 20 Cal. 4th at 143.
22 Light v. Provident, 2003 WL 22718206 (Cal. App. 2d Dist. Nov. 19, 2003) (Nos. B158361, B161832) (unpublished), petition for review denied, Feb. 24, 2004.

 
 
By reading this article and answering the accompanying test questions, you can earn one MCLE credit.
 
 

 
   
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