The Use of Experts in Opposition Summary Judgment – Make Sure you Designate!

Whenever a trial date is set, a party may demand simultaneous exchange of expert witness information (Code of Civil Procedure § 2034.210).

If a party fails to comply with the exchange of expert witness information, and the other side objects, “the trial court shall exclude from evidence the expert opinion” of said witness. (Code of Civil Procedure § 2034.300)

The recent case of Perry v. Bakewell Hawthorne, LLC, (2017) Cal. Lexis 1351, raised a novel issue as it relates to the above sections. Perry was a personal injury matter wherein the plaintiff fell on defendant’s property. Defendant moved for summary judgment, which was set to be heard after the exchange of expert witness information.

In his opposition, plaintiff used the declarations of two experts to demonstrate that the stairs he fell on were in disrepair and did not comply with building code and industry standards. The problem was that neither of these two declarants had been identified in the expert witness information exchange.

The issue became whether the exclusionary rule of CCP § 2034.300 applied only to the use of those experts at trial or whether it also applied at the summary judgment stage.

Ultimately, the Supreme Court of California held looked to the Section governing motions for summary judgment – CCP § 437c. They held, Section 437c(d) requires that affidavits and declarations submitted in summary judgment proceedings “set forth admissible evidence.” They held that when the court determines an expert opinion is inadmissible because disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised.

In this matter, because the declarations attached to the opposition to motion for summary judgment were by two experts whom would be excluded from testifying at trial, their declarations were similarly inadmissible to refute the defendant’s motion for summary judgment.

Published By: Jean-Simon Serrano


Photo Credit: https://www.flickr.com/photos/surreynews/

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