Junction Of Civil Procedure Statutes In Expert Exchange Context.

The trial court precluded plaintiff’s use of expert witnesses in a medical malpractice case on the ground plaintiffs unreasonably failed to timely disclose their designated trial experts after receiving a statutory demand from defendants. The initial trial date was February 14, 2012. Defendants served their demand for expert exchange on December 6, 2011 [70 days before trial].  Defendants set the disclosure date for, and served their own expert information on, December 27, 2011 [49 days prior to trial]. While not clear, it appears plaintiff responded with expert information somewhere between January 9 and January 14, 2012.

• Code of Civil Procedure section 2034.230 (b) states the date on which an expert witness demand may require the information to be exchanged: “The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date” unless the trial court has found good cause to modify the exchange date.
• Code of Civil Procedure section 2034.220 says the expert exchange is triggered by a timely written demand made by any party after the initial trial date is set.
• Code of Civil Procedure section 2016.050, states the Civil Discovery Act expressly provides that the five-day extension allowed by § 1013 applies to all discovery methods.
• Code of Civil Procedure section 1013 (a) provides that the time for performing any act is extended by five days when the demand or notice is served by mail within the state, as here.
• Code of Civil Procedure section 2034.260 sets forth the general requirements for the exchange and the information to be provided.
• Code of Civil Procedure section 2034.300 provides that on objection of any party who has made a complete and timely compliance with section 2034.260, the trial court shall exclude the expert opinion of any witness offered by a party who has unreasonably failed to comply with the requirements.

The appellate court reversed, concluding defendants lacked standing to bring their motion under Code of Civil Procedure section 2034.300 to preclude plaintiff’s experts from testifying because defendants did not completely and timely comply with Code of Civil Procedure section 2034.260 themselves and “failed to extend the exchange date by five days by operation of [Code of Civil Procedure] section 1013.” The appellate court also found the trial court abused its discretion when it sustained defendants’ objection to plaintiff’s expert disclosure, particularly noting plaintiff offered his experts to be deposed, to which offer defendants declined.  (Staub v. Kiley (Cal. App. Third Dist.; June 16, 2014) 226 Cal.App.4th 1437, [173 Cal.Rptr.3d 104].)