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Case Style: Du-All Safety, LLC v. The Superior Court of Alameda County, Mark krien, Real Party in Interest
Case Number: A155119
Judge: Richmond, J
Court: California Court of Appeals First Appellate District, Division Two on appeal from the Superior Court, County of Alameda
Plaintiff's Attorney: Matthew Gregory Kleiner
Defendant's Attorney: Anthony Lawrence Label, Steven Aaron Kronenberg and Valerie Tallant McGinty
On March 2, 2017, plaintiffs Mark Krein and his wife Lori Krein (when referred to
collectively, plaintiffs) filed their first amended complaint, the operative complaint here
(complaint). It named 12 defendants: Du-All; Alricks Steel, Inc.; Tuolumne County
Engineering Consultants, Inc.; Darrhl I. Dentoni & Associates; Kjeldsen, Sinnock &
Neudeck, Inc.; V.J. Gretzinger, P.E.; Eugene Weatherby, P.E.; Gretzinger & Weatherby;
R.W. Siegfried & Associates; Siegfriend Engineering, Inc.; Schelin Associates, Inc.; and
Robert D. Moore Construction Co., Inc.
The complaint was based on an accident in November 2015, when Mark Krein, an
employee of Tuolomne Water District, fell from a bridge at his place of employment and
“sustained paraplegic injuries.” The thrust of the charging allegations were these:
— In 1974, defendant Robert D. Moore Construction Co. contracted to build a
wastewater treatment plant for Tuolumne County Water District No. 2, which plant
included two digester tanks that reduced the concentration of solids in wastewater. The
construction contract required the construction and installation of a galvanized steel foot
bridge (The Bridge) between the digester tanks pursuant to specifications, including
longitudinal supporting beams of trusses. And “Defendants, and each of them, designed,
approved, manufactured, and inspected The Bridge.”
— In February 2002, Du-All contracted to periodically inspect the wastewater
treatment plant, including The Bridge and its related equipment, and did not exercise
reasonable care to identify any violations or hazardous conditions of The Bridge or
recommend any corrective action for it, which omissions increased the risk of harm to
Mark Krein, other employees of the Tuolumne Utilities District, and the public.
— In November 2015, Mark Krein (who had worked for the district since 2007)
was walking on The Bridge when the floor gave way, and he fell “because The Bridge
including its related equipment, component parts, and constituents were defectively
designed, constructed, manufactured, and inspected. Neither the defendants nor The
Bridge provided any notice or warning to plaintiff Mark Krein of any risk of personal
The complaint alleged seven causes of action, only two of which included Du-All
as a defendant: the first, for general negligence, and the seventh, for loss of consortium.
The other five causes of action were product liability claims, all alleged against the other
Many of the defendants filed answers to the complaint, including, as pertinent
here, Du-All, whose answer was filed on March 17, 2017. That answer is not in the
record, and neither are any of the other pleadings filed in the next 12 months, and we
glean what occurred in the case from the register of actions, which, we note, does not
meaningfully describe most of the pleadings. As best we can tell, what occurred included
— A case management conference scheduled for May 18, 2017, apparently
continued to May 19, and then to May 24, at which the case was set for jury trial for May
14, 2018. The court also ordered the case to private mediation.
— Various dismissals were filed.
— A motion for good faith settlement was filed on February 14, 2018, which
motion was granted on March 15. Another such motion was filed on April 9, which was
granted on May 17. Thus, it appears that by May 2018 at least eight of the defendants
had been removed from the case, no fewer than six by dismissal and two by good faith
settlements. Whether any defendant beyond Du-All remained in the case is not apparent.
Meanwhile, on March 7, 2018, Du-All filed a motion to continue the trial, set for
hearing on March 15. According to a later-filed stipulation, the court heard the motion to
continue on March 15, but deferred ruling on it until the April 27 case management
conference. Then, on March 16, counsel for plaintiffs and Du-All filed a stipulation, with
an order signed by the court, continuing the trial to June 25.
We close our brief discussion of what occurred in the case with an observation of
what did not occur—discovery disputes. That is, review of the 28-page register of
actions shows that between November 2016, when the complaint was served, and
mid-May 2018, the only motion involving discovery was plaintiffs’ motion for relief
from waiver for failing to make objections to written discovery. No motion to compel
was filed by any party.2
Put otherwise, from all indications all parties, including Du-All,
fully complied without compulsion in any discovery in which it was involved,
demonstrating that at all times Du-All and its counsel apparently acted cooperatively and
appropriately. And without gamesmanship.
That gets us to May 2018, and the issue here.
On May 7, Du-All served its expert witness disclosure, identifying the two experts
it “expected” to call at trial: (1) a health and safety management consultant, and (2) a
On May 7, plaintiffs served their expert witness disclosure, also identifying a
safety consultant and a structural engineer. In addition, plaintiffs disclosed five other
experts to testify on various topics, as follows: (1) Tracy Albee, a registered nurse and
life care planner, to testify regarding past and future injury-related needs and costs; (2)
Digby Macdonald, a chemist, to testify to the effects of rust and corrosion; (3) Robert
Johnson, a forensic economist, to testify to past and future economic losses; (4) Dr. Ted
Scott, a physiatrist, to testify to damages and injuries and their cause and effects; and (5)
Scott Simon, a vocational rehabilitation consultant, to testify to functional limitations and
need for assistance. That same day, plaintiffs produced their life care plan.
Following receipt of plaintiffs’ expert disclosure and the life care plan, Du-All
determined that supplemental experts would be necessary, and it retained several
supplemental experts to rebut the anticipated testimony of the experts disclosed by
plaintiffs. And on May 25, pursuant to section 2034.280, Du-All served its supplemental
expert disclosure, listing the following five experts: (1) Darko Babic, a rust expert
engineer, to respond to plaintiffs’ expert MacDonald; (2) Carol Hyland, a life care
planner, to rebut the reasonableness of the life care plan created by plaintiffs’ expert
Albee; (3) Mark Newton, an economist, to rebut plaintiffs’ expert Johnson as to past and
2 The only motion to compel was filed after mid-May, filed by Du-All.
future economic losses; (4) Jill A. Moeller, a vocational rehabilitation consultant, to rebut
plaintiffs’ expert Simon on issues of functional limitations and need for assistance; and
(5) Dr. Maureen D. Miner, a physiatrist, to rebut plaintiffs’ expert Scott on the nature and
extent of Mark Krein’s damages and injuries, including the cause and effect of those
On June 4, pursuant to an order shortening time, plaintiffs filed a motion to strike
Du-All’s supplemental disclosure, setting the hearing for June 7. Plaintiffs argued that
Du-All should have disclosed the experts identified in the supplemental disclosure in its
original disclosure because these types of experts are commonly used in personal injury
cases. And, plaintiffs argued, Du-All engaged in “gamesmanship” and, moreover,
plaintiffs were prejudiced by the supplemental expert disclosure, but citing in claimed
support only Du-All’s “concern that it would be difficult to schedule the initiallydesignated
expert depositions before trial. . . .”
On June 4, the same day on which plaintiffs filed their motion to strike, Du-All
filed a motion to continue the trial date because discovery, both non-expert and expert,
had not been completed—indeed, that expert discovery had not even begun.
On June 6, Du-All filed its opposition to the motion to strike and a supporting
declaration, stating that the supplemental experts were just that, experts retained after
receipt of plaintiffs’ expert disclosure. And, counsel for Du-All declared, there was no
“gamesmanship” involved in its supplemental expert disclosure.
On June 7, three days after Du-All filed its motion to continue the trial—and the
day Du-All’s motion was set for hearing—the parties stipulated to continue the trial date
to October 29. The stipulation was entered into before the hearing on plaintiffs’ motion
to strike, and was based on the parties’ desire to accommodate a mutually convenient
date for the deposition of plaintiff, the orderly depositions of expert witnesses, and the
completion of certain expert testing. The stipulation further agreed that expert discovery
was to remain open until 30 days before the newly-agreed-to trial date.
The same day, June 7, the court held a hearing at which various matters were
discussed. The first was Du-All’s discovery motion (see fn. 2, ante), on which the court
ruled for Du-All. The court then granted the motion to continue the trial, resetting it to
October 29. The final item was the issue of “the experts,” the entirety of which is
reflected in fewer than three pages of the reporter’s transcript. It was as follows:
Following confirmation that counsel had nothing to add to their papers, this brief
“THE COURT: All right. It’s abundantly clear to me that the defendant failed to
comply with the simultaneous rule in disclosing experts . . . for life care or life planning,
for vocational rehab, and for someone that’s going to be talking about the nature and
extent of the Plaintiff’s injuries. Those three experts Carol Highland [sic], Jill Moeller,
and Dr. Minor may not be expert witnesses in this case because they are not
disclosed. . . . [¶] . . . [¶] Darko Babic may testify as it’s not necessary—even though the
case really does have the component where rust and corrosion is an important aspect and
everybody has known it for a long time, the fact that the—those kind of issues—one
might have presumed reasonably on the defense side that the structural engineer expert
on both sides would go into that and it might have—it’s certainly possible that it might
have been news that a chemist was going to be testifying for the other side on the issue of
rust and corrosion, and so I think that it is reasonable, although I see it as a close issue
frankly. It’s reasonable to have that expert testify and be named in the supplemental
declaration for experts. That would be my view after having read the paperwork.
“MR. SHANAGHER [counsel for Du-All]: Couple of comments, your Honor?
“THE COURT: I already made my decision, I don’t know what you’re going to
comment for. You don’t get to try to talk me out of it at this point.
“MR. SHANAGHER: Okay. All right. Fair enough. The only thing that was
not clear, was there was one other expert. I think that you mentioned Miller, Minor, and
“THE COURT: Yes.
“MR. SHANAGHER: But not Mark Newton the economist?
“THE COURT: Oh, no, the economist has to go too. You knew—you had to
have known that—that, one, the other side was going to have an economist and that you
should have an economist, too. The statement opening the Fairfax
case applies in this
“MR. SHANAGHER: We respectfully disagree with, your Honor.
“THE COURT: All right.”
On July 5, Du-All filed a motion for reconsideration based on a new fact, the
four-month trial continuance. The motion argued that the trial did not take into
consideration its order granting the continuance, which eliminated any possible prejudice
plaintiffs may claim, and, further, that the parties still had not commenced expert
On July 25, plaintiffs filed their opposition, relying on Fairfax, supra, 138
Cal.App.4th 1019, to argue Du-All should have identified the supplemental expert
witnesses in its original disclosure. Plaintiffs did not identify any actual prejudice they
sustained, instead arguing that the supplemental designation was “inherently prejudicial.”
Du-All filed a reply, and on August 7, the trial court denied Du-All’s motion for
reconsideration in a one-line order, providing no reason for its denial.
Proceedings in This Court
On August 23, 2018, Du-All filed in this court a petition for peremptory writ. We
asked for opposition, and on September 4 plaintiffs filed it, 47 pages of opposition to be
On September 26, we issued an alternative writ of mandate, in an order that began
as follows: “The court has conducted a detailed review of the record and the parties’
briefing regarding this petition. It appears respondent superior court erred when it
granted, in part, real parties’ motion to strike petitioner’s supplemental expert witnesses
timely disclosed on May 25, 2018. [¶] Therefore, let an alternative writ of mandate issue
commanding respondent Alameda County Superior Court . . . to set aside and vacate its
June 22, 2018, order granting, in part, real parties’ motion to strike petitioner’s
supplemental expert witnesses, and, instead, to issue a new and different order denying
3 Fairfax v. Lords (2006) 138 Cal.App.4th 1019 (Fairfax).
that motion in its entirety, or, in the alternative, to appear and show cause before Division
Two of this court why a peremptory writ of mandate should not be granted.”
Despite our order, on October 12, plaintiffs filed their return to the writ.
On October 16, counsel for Du-All filed in this court “Notice of Respondent
Court’s Compliance” with our alternative writ, attaching a copy of an October 16 order
signed by the trial court denying the motion.
On November 9, counsel for plaintiffs filed in this court an order signed by the
trial court indicating that the court had granted plaintiffs’ motion for “reconsideration or
to vacate,” and had vacated its October 16 order denying the motion to strike and
reinstated the order granting the motion to strike.
On December 13, Du-All filed its traverse. We set the petition for oral argument,
which was held. And we now grant the petition for mandate.
The Standard of Review
We generally review a trial court’s ruling on a motion to exclude expert testimony
for abuse of discretion. (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936,
950.) But a trial court’s discretion is always delimited by the statutes governing the
particular issue, and “when the exclusion of expert testimony rests on a matter of
statutory interpretation, we apply de novo review.” (Mateel Environmental Justice
Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 25.)
We discussed the subject of discretion at length in People v. Jacobs (2007) 156
Cal.App.4th 728, in the setting where the court had denied defendant’s request for a twoday
continuance so he could be sentenced by the trial judge. Finding an abuse, we
described what it meant, a description that included a quotation from City of
Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 (Drew). This is what we said:
“Elaborating, the Court of Appeal further explained: ‘Very little of general
significance can be said about discretion. “ ‘The discretion of a trial judge is not a
whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations
of legal principles governing the subject of its action, and to reversal on appeal where no
reasonable basis for the action is shown. [Citation.]’ ” (Westside Community for
Independent Living, Inc. v. Obledo (198) 33 Cal.3d 348, 355, citing to 6 Witkin, Cal.
Procedure (2d ed. 1971) Appeal, § 244.) The scope of discretion always resides in the
particular law being applied, i.e., in the “legal principles governing the subject of [the]
action . . . .” Action that transgresses the confines of the applicable principles of law is
outside the scope of discretion and we call such action an “abuse” of discretion.
[Citation.]’ (Drew, supra, 207 Cal.App.3d at p. 1297.) Finally, as Drew noted, the ‘legal
principles that govern the subject of discretionary action vary greatly with context.
[Citation.] They are derived from the common law or statutes under which discretion is
conferred.’ (Id. at p. 1298.)” (People v. Jacobs, supra, 156 Cal.App.4th at p. 737.)
And we continued: “Various other cases are to the same effect, including
Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813,
831, fn. 3 (‘[a]lthough an act exceeding the bounds of reason manifestly constitutes an
abuse of discretion, abuse is not limited to such an extreme case’); County of Yolo v.
Garcia (1993) 20 Cal.App.4th 1771, 1778 (‘range of judicial discretion is determined by
analogy to the rules contained in the general law and in the specific body or system of
law in which the discretionary authority is granted’); see generally Hurtado v. Statewide
Home Loan Co. (1985) 167 Cal.App.3d 1019, 1021–1026, overruled on other grounds in
Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.
“In Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407, 1417
our colleagues in Division Four of this court observed that ‘Abuse of discretion has at
least two components: a factual component . . . and a legal component. [Citation.] This
legal component of discretion was best explained long ago in Bailey v. Taaffe (1866)
29 Cal. 422, 424: “The discretion intended, however, is not a capricious or arbitrary
discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal
principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion,
to be exercised in conformity with the spirit of the law and in a manner to subserve and
not to impede or defeat the ends of substantial justice. . . .” ’
“All this is well described in Witkin where, likewise citing the still vital Bailey v.
Taaffe, supra, 29 Cal. 422, 424, the author distills the principle as follows: ‘Limits of
Legal Discretion. [¶] The discretion of a trial judge is not a whimsical, uncontrolled
power, but a legal discretion, which is subject to the limitations of legal principles
governing the subject of its action, and to reversal on appeal where no reasonable basis
for the action is shown. (See 5 Am.Jur.2d, Appellate Review § 695.) . . .’ (9 Witkin, Cal.
Procedure (4th ed. 1997) Appeal, § 358, pp. 406–407.)
“Applying these concepts here leads us to conclude that Judge Kroyer’s refusal to
continue the sentencing for two court days was an abuse of discretion.” (People v.
Jacobs, supra, 156 Cal.App.4th at pp. 737–738.)
Likewise the trial court’s ruling here.
Striking the Experts on the Supplemental Disclosure Was Error: Du-All
Complied With the Discovery Statutes
Under section 2034.210, subdivision (a), a party may demand a mutual and
simultaneous exchange of each expert witness that any party “expects to offer in evidence
at . . . trial.” And section 2034.260, subdivision (b)(1), requires an expert witness
disclosure to list every expert “that the party expects to offer” in evidence at trial. Du-All
did that, identifying the two experts it intended to call, a health and safety management
consultant safety and a structural engineer.
The statutory scheme provides that following review of the experts the other side
has disclosed, a party may file a supplemental expert witness disclosure. This is under
section 2034.280, which provides that “[w]ithin 20 days after the exchange described in
Section 2034.260, any party who engaged in the exchange may submit a supplemental
expert witness list containing the name and address of any experts who will express an
opinion on a subject to be covered by an expert designated by an adverse party to the
exchange, if the party supplementing an expert witness list has not previously retained an
expert to testify on that subject.”
There is no dispute that Du-All timely and simultaneously designated its initial
experts. And also no dispute it timely designated its rebuttal experts in the same fields as
plaintiffs’ initially designated experts. In short, Du-All complied with the express
language of the expert designation statutes. That ends it.
The California Judges Discovery Benchbook is one of the four benchbooks that
provides “practical working tools to enable a judge to conduct civil proceedings fairly,
correctly, and efficiently. They are written from the judge’s point of view, giving the
judge concrete advice on what to look for and how to respond.” (California Judges
Benchbook: Civil Proceedings—Discovery (CJER 2d ed. 2012) p. v.) This is what that
practical guide says about the “Supplemental Exchange”:
“A party that has participated in the exchange of expert witness lists may
supplement its list without a court order, provided that (CCP § 2034.280)
“● It submits its supplemental list to the other parties within 20 days after the
“● Any newly designated expert will express an opinion only on a subject to be
covered by an expert designated by an adverse party.
“● It has not previously listed any expert witness on that subject.
“● The supplemental list is accompanied by an expert witness declaration . . . .
“● It makes each newly designated expert immediately available for a
deposition.” (California Judges Benchbook: Civil Proceedings—Discovery (CJER 2d
ed. 2012) § 23.23, pp. 473–474.)
Du-All met those criteria here.
A leading California treatise on discovery describes “Supplementing Expert
Witness Information” this way: “Second Thoughts: As the trial date draws near, the
litigants sometimes will change their minds about the need for expert testimony. One
party may initially decide that a particular aspect of the case does not require expert
testimony. Then, the initial exchange of expert witness information reveals that another
party has designated one or more experts to testify in this area. This may cause the party
who has not listed an expert to decide that the safer course is to retain one. Section
2034.280 offers a way to effectuate this change of mind. It provides a window of
opportunity after the initial exchange during which a party may have a right to make a
supplemental expert witness designation. In this respect supplementation of an expert
witness under Section 2034.280 is different both from augmenting an expert witness list
and from making a tardy submission of one. These latter steps are not a matter of right;
they require leave of court.” (1 Hogan & Weber, Cal. Civil Discovery (2d ed. 2005)
Expert Witness Disclosure, § 10:11, pp. 10-32 to 10-33, footnotes omitted.)
The leading practice treatise puts it similarly: “Supplemental expert witness
lists: Sometimes, the exchange reveals that one party plans to call experts on subjects the
opposing party assumed would not require expert testimony. In such cases, the opposing
party has the right to supplement its expert witness exchange by adding experts to cover
subjects on which the other party indicates it plans to offer expert testimony, and on
which the opposing party had not previously retained an expert to testify.” (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018)
¶ 8:1686, p. 8J-18.)
In short, Du-All had a right to do what it did. And the trial court’s order was
error, especially as Du-All complied with its disclosure obligations, there is no indication
it acted unreasonably or engaged in gamesmanship, and there was no prejudice to
The trial court’s ruling here reads into the statute obligations that do not exist: that
a party must not only initially disclose every expert witness it expects to call at trial, but
also every expert witness it anticipates using to rebut the experts the other side might
designate as an expert. This interpretation is not supported by the plain language of
section 2034.210, which requires only that a party designate the experts it expects to call
at trial. Indeed, if plaintiffs’ interpretation were correct, there would be no need for
section 2034.280. In short, the Legislature contemplated that when a party designates an
expert, it is possible the other side might want to designate a rebuttal expert on the same
Staub v. Kiley (2014) 226 Cal.App.4th 1437 (Staub) is persuasive. There, in a
medical malpractice case, the trial court granted defendants’ in limine motion precluding
plaintiffs’ expert witnesses from testifying, on the ground plaintiffs unreasonably failed
to timely disclose their designated experts, and then entered judgment for defendants
following their successful motion for nonsuit. (Id. at pp. 1442–1444.) The Court of
Appeal reversed, first concluding that defendants lacked standing to seek to exclude the
testimony because they themselves failed to comply with section 2034.260. The Court
then went on with the following observations:
“Even if defendants did have standing to bring a section 2034.300 motion,
plaintiffs cannot be said to have unreasonably failed to comply with defendants’ expert
witness demand, so as to justify excluding plaintiffs’ experts’ testimony. Although
section 2034.300 does not provide explicit guidance as to how a court should decide if
the party’s failure was reasonable or unreasonable, the record does not support the trial
court’s implicit conclusion that plaintiffs behaved so unreasonably as to warrant
exclusion of their experts’ opinion testimony.
“Failure to comply with expert designation rules may be found to be
‘unreasonable’ when a party’s conduct gives the appearance of gamesmanship, such as
undue rigidity in responding to expert scheduling issues. (Stanchfield v. Hamer Toyota,
Inc. (1995) 37 Cal.App.4th 1495, 1504.) The operative inquiry is whether the conduct
being evaluated will compromise these evident purposes of the discovery statutes: ‘ “to
assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by
educating the parties as to the strengths of their claims and defenses; to expedite and
facilitate preparation and trial; to prevent delay; and to safeguard against surprise.” ’ (Id.
at p. 1504 [holding that the court did not abuse its discretion in allowing expert
testimony].)” (Staub, supra, 226 Cal.App.4th 1446–1447.)
Then, following discussion of Zellerino v. Brown (1991) 235 Cal.App.3d 1097
(Zellerino), which disallowed the experts because the conduct amounted to “ ‘a
comprehensive attempt to thwart the opposition from legitimate and necessary
discovery’ ” (Staub, supra, 226 Cal.App.4th at p. 1447), the court continued: “The
record here does not support a determination that plaintiffs so unreasonably failed to
timely disclose their experts that exclusion of all expert testimony was warranted.
Neither plaintiffs nor their counsel engaged in actions that can be characterized as
gamesmanship, nor did they engage in a ‘comprehensive attempt to thwart the opposition
from legitimate and necessary discovery,’ justifying exclusion of evidence. (Zellerino,
supra, 235 Cal.App.3d at p. 1117.)” (Ibid.)
After all that, the Staub court added this: “Our conclusion in this regard is
bolstered by the fact that the order excluding plaintiffs’ experts from testifying at trial
was in effect a terminating sanction, as it eviscerated plaintiffs’ case. The ‘general rule
[is] that a terminating sanction may be imposed only after a party fails to obey an order
compelling discovery . . . .’ (New Albertsons, Inc. v. Superior Court (2008) 168
Cal.App.4th 1403, 1426.) Here, there was no history of discovery abuse by plaintiffs
which would warrant the imposition of a terminating sanction. This case is not remotely
on a par with the type of case in which a sanction of this type is warranted. (Cf.
Zellerino, supra, 235 Cal.App.3d at p. 1117 [‘near-total failure’ to comply with
requirements of expert disclosure statute].)” (Staub, supra, 226 Cal.App.4th at p. 1448.)
While the effect here might not be a nonsuit, to force Du-All to defend against the
testimony of plaintiffs’ four experts without experts of its own could be said to
“eviscerate” its defense, at least to the extent of the issues on which the experts would
Fairfax, supra, 138 Cal.App.4th 1019, the case primarily relied on by plaintiffs—
and the one case cited by the court in its brief holding—is easily distinguishable. Fairfax
was a medical malpractice case against a podiatrist. Defendant served a demand for the
exchange of expert witness information, and plaintiff timely designated a retained expert,
also stating he reserved his right to call any treating physicians as witnesses. On the
same date, defendant served a document that purported to be a designation of expert
witnesses, but contained no such information, stating instead that defendant “ ‘hereby
gives notice that he is not designating any retained experts for the first exchange of expert
witness information,’ ” going on to state that he “ ‘expressly reserves the right to
designate experts in rebuttal to [plaintiff’s] designations.’ ” (Id. at p. 1022.) Several
weeks later, defendant issued a second designation of expert witnesses, naming two
witnesses designed to counter plaintiff’s expert, also purporting to reserve the right “ ‘to
provide a supplemental designation of experts regarding all issues for which plaintiff
designates an expert.’ ” (Id. at p. 1023.) Over plaintiff’s objection, the court allowed
defendant’s experts to testify (id. at pp. 1024–1025), and the jury returned a defense
The Court of Appeal reversed, beginning its opinion with the observation that the
statute governing the exchange of expert information “required a ‘simultaneous’
exchange of information, in which each side must either identify any expert witnesses it
expects to call at trial, or state that it does not intend to rely upon expert testimony.
When it comes to issues that both sides anticipate will be disputed at trial, a party cannot
merely ‘reserve its right’ to designate experts in the initial exchange, wait to see what
experts are designated by the opposition, and then name its experts only as purported
‘rebuttal’ witnesses.” (Fairfax, supra, 138 Cal.App.4th at p. 1021.) “The effect of
[defendant’s] expert designation was to delay his own list of ‘expected’ witnesses until
after he had seen the list put forth by [plaintiff].” (Id. at p. 1026.) “[Plaintiff] designated
only one retained expert, to address the only real disputed issue in this case . . . . Because
[defendant] had every reason to anticipate such a designation, he had a corresponding
obligation to designate whatever expert he expected to have testify on the issue at the
same time.” (Id. at p. 1027.) Defendant “had no right to simply delay his designation of
retained experts until after he had the opportunity to view the designation timely served
by [plaintiff],” and the trial court erred by refusing to strike his designation. (Ibid.)
In sum, Fairfax held that what defendant did was improper because its effect “was
to delay his own list of ‘expected’ witnesses until after he had seen the list put forth by
[plaintiff]. [Defendant] does not deny that this was his express intent . . . .” (Fairfax,
supra, 138 Cal.App.4th at p. 1026.) And such “wait to see” approach would not be
allowed. Fairfax, and its limited holding, is not applicable here. For several reasons.
First, unlike the defendant in Fairfax, Du-All complied with the statute in its
initial disclosure, naming the two experts it “expect[ed]” to call.4
Second, there was prejudice in Fairfax, the improper expert testimony the court
allowed that resulted in the defense verdict. Here, there was no prejudice found, indeed,
even meaningfully attempted to be shown by plaintiffs, whose fundamental contention on
the issue below is that there was “inherent prejudice.” The fact is that at the time the
supplemental disclosure was served, neither party had deposed any expert witnesses.
Beyond that, before the trial court ruled on plaintiffs’ motion to strike, the court had
continued trial to October 29, with expert discovery to remain open until 30 days before
Third, and again unlike the defendant in Fairfax, whose wait to see approach was
“his express intent” (Fairfax, supra, 138 Cal.App.4th at p. 1026), indicating what could
be considered gamesmanship, we see no gamesmanship here. To the contrary, and as
noted, there is no indication Du-All and its counsel were anything but professional, civil,
and cooperative in all they did, necessitating not one motion to compel to be filed by
plaintiffs. In sum, neither Du-All “nor [its] counsel engaged in actions that can be
characterized as gamesmanship, nor did they engage in a ‘comprehensive attempt to
thwart the opposition from legitimate and necessary discovery,’ justifying exclusion of
evidence.” (Staub, supra, 226 Cal.App.4th at p. 1447, quoting Zellerino, supra, 235
Cal.App.3d at p. 1117.)
4 We have found only one published opinion that has applied Fairfax: Osborne v.
Todd Farm Service (2016) 247 Cal.App.4th 43. There, the trial court dismissed with
prejudice appellant’s complaint for personal injuries during a jury trial as a sanction for
her counsel’s repeated violations of the trial court’s orders excluding hearsay and opinion
testimony. The appellate court easily affirmed, saying this as to the expert witness issue:
“During discovery, appellant failed to make a timely designation of expert witnesses.
Instead, after respondents served their designations of expert witnesses, appellant served
a ‘supplemental’ designation naming hers. The trial court granted Berrington’s motion to
strike appellant’s supplemental designation,” an order appellant did “not challenge . . . on
appeal.” (Id. at p. 46.)
In fact, the most recent information from the parties is that the trial date has been
“vacated,” and that depositions of experts still have not begun.
Attempting to make a case to the contrary, plaintiffs assert in their return that
Du-All “Engaged in a Pattern of Unreasonable Conduct,” a statement purportedly
supported by the various items set forth in bullet-point fashion for three pages in the
return. Passing over whether the items in fact demonstrate any “unreasonable conduct,”
the fact is that every single item on those pages deals with scheduling issues, all in or
around May and June 2018. This is hardly a “pattern of misconduct.” Not only that,
most of these items were brought to the trial court’s attention in the context of the motion
to continue trial, to which plaintiffs stipulated.
On several occasions plaintiffs refer to the experience and expertise of Du-All’s
counsel, describing them as partners in the “nation’s most respected firms. Mr. Scully, a
named partner in the 800-attorney Gordon, Rees, Scully & Mansukhani firm, is one of
the ‘25 foremost trial attorneys’ in the U.S. [Citation.] [¶] Mr. Shanagher, a partner at
Duane Morris, ‘has handled jury trials, court trials, mediations and arbitrations for more
than 30 years. [Citation.] Mr. Fields, also a partner, has lectured about ‘Lessons Learned
from First Chair Experience.’ [Citation.].” And, plaintiffs’ argument seemingly runs,
even inexperienced attorneys would have known to do something these “world class
attorneys” did not do—exercise “reasonable diligence.” We fail to see the connection. If
anything, based on the claimed experience of counsel, we would infer just the opposite,
that they did just what their experience had taught them, not because of any claimed
“gamesmanship.” Why would experienced counsel gamble on such gamesmanship that,
should it not succeed, would result in their defending a case without experts on issues
they “had to know” would be involved, and thus risk a possible devastating effect on their
client—not to mention a possible legal malpractice claim based on such gamesmanship?
Plaintiffs also assert that Du-All could have retained and identified various
experts, apparently with little to no expense. We do not understand the assertion, as we
would expect that before any expert would agree to be identified as such, he or she would
have to review the material on which they would opine, with, of course, its concomitant
Fourth, and perhaps most importantly, Fairfax, supra, 138 Cal.App.4th 1019 was
essentially a one-issue case—whether defendant committed malpractice; this was “the
only real disputed issue in the case.” (Id. at p. 1027.) This necessarily meant that
defendant had to know what the issue was, and thus what expert he “expect[ed]” to call.
This is not so here, and plaintiffs have not demonstrated that Du-All always expected to
retain experts in the various fields of expertise set forth in the plaintiffs’ initial disclosure.
Or, as the trial court put it, citing nothing, Du-All “had to have known” that plaintiffs
were going to call certain experts.
Focusing solely on the issue of damages, plaintiffs assert that Du-All apparently
had to “expect” to retain damages experts for three reasons: (1) Du-All had notice of
Mark Krein’s injuries since the date the complaint was filed; (2) Du-All had notice that
Mark Krein’s past special damages would be in the millions of dollars; and (3) plaintiffs’
response to some written interrogatories—propounded, we note, by another defendant—
made reference to experts. We are not impressed.
To begin with, the expert disclosure statute merely requires a party to designate an
expert whose opinion the party “expects to offer in evidence at . . . trial.” (§ 2034.210,
subd. (a).) So, the mere fact that Du-All may have known, expected, or even anticipated
that plaintiffs would designate damages experts does not, under the requirements set forth
in the Code of Civil Procedure, place any responsibility on Du-All to anticipate what
experts plaintiffs might designate and in anticipation of that designation designate
rebuttal experts in its initial disclosure.
Arguing to the contrary, plaintiffs assert in the “Introduction” to their return that
“Du-All also judicially admitted it cannot properly ‘defend a paraplegic case with no
experts to rebut Plaintiffs’ damages experts’ (Reply 6 [emphasis added]; Pet. ¶ 11.)”
Twelve pages later, in their “Overview” of their argument, plaintiffs assert that “Du-All’s
judicial admission that it cannot ‘defend a paraplegic case with no experts’ (Reply 6
[emphasis added]) concedes Petitioner ‘expect[ed]’ to retain standard damages experts
long before the initial disclosure date.” And to top it off, plaintiffs conclude with this:
“No wonder that Petitioner now judicially admits what it knew all along—that it cannot
properly ‘defend a paraplegic case with no experts to rebut Plaintiffs’ damages experts.’
(Reply 6 [emphasis added].)” Plaintiffs are less than candid.
As Du-All aptly notes, the complete quote by Du-All in its context is as follows:
“In other words, since Du-All participated in the initial expert exchange, it had the right
to then ‘choose experts to target plaintiffs’ timely-disclosed experts.’ It is neither
prejudicial nor inherently prejudicial for a party to comply with section 2034.280 and
designate supplemental experts. In sharp contrast, it is prejudicial that Du-All, which
complied with the expert designation statutes, now has to defend a paraplegic case with
no experts to rebut Plaintiffs’ damages experts.”
As to the interrogatory responses, they are, as noted, responses to interrogatories
propounded by a different defendant. Moreover, the responses were hardly all that
plaintiffs crack them up to be, plaintiffs themselves saying only that “many” of their
responses referred to possible expert testimony. On top of all that, we do not understand
how the issue of damages necessarily implicates experts that include a vocational
rehabilitation consultant, a life care planner, or a physiatrist, a doctor who specializes in
Here, Du-All disclosed the experts it expected to call at trial. Then, when
plaintiffs disclosed five other experts, and, it must be emphasized, also produced a life
care plan, Du-All retained and designated experts to rebut plaintiffs’ position, including
its own expert on a life care plan. This is the precise reason why the Legislature codified
the right to designate rebuttal experts. The trial court’s denial of this enumerated right by
placing limitations not found in the Code of Civil Procedure was an abuse of discretion.
Outcome: A peremptory writ of mandate shall issue directing respondent superior court to