November 2006

Don't Miss the Date When Designating an Expert

Holland & Knight Newsletter
Alan J. Watson

Many construction cases live and die by the lawyer’s ability to use experts. In California state court cases, like most venues, the lawyer will retain the needed professionals – structural engineers, construction managers, accountants and the like – during the litigation on a consulting basis. Doing so allows the attorney and client the opportunity to gather the necessary evidence, perform the necessary evaluations, and assess the strengths and weaknesses of the case and various case theories under the protection of the attorney-client privilege and the attorney work product doctrine.

Very late in California cases, 70 days before trial, each party must decide if it wants to disclose its testifying trial experts and if it wants to know who the other parties will use. The disclosure of expert witnesses in a California case is optional in the sense that the rules do not require any party to disclose information before trial. The disclosure is required only if requested. However, the rules on disclosure are an all or nothing proposition for all parties. If any party demands the disclosure of expert witness information, all parties, including the demanding party, must disclose who they will use at trial as a testifying expert. As a practical matter, it is the rare construction case that does not require disclosure of experts before trial. As such, demands typically are made 70 days before trial and exchanges are due 50 days before trial, unless the parties can agree to modify these very late statutory dates.

A Strategy for Designating Experts

Until recently, the disclosure of expert witnesses was a bit of a cat-and-mouse game and one that required a certain amount of consideration as each party decided who it wanted to designate. While the easy response would be to designate everyone being used as a consultant that could possibly help your case, that equates to significant costs, a time crunch because of the very late disclosure date and the waiver of the attorney-client privilege for each person designated – neither of which is an attractive option. Furthermore, it is not always necessary. For example, assume there is a significant structural defect case and at the outset it appears there are design, fabrication and installation problems. At the outset, an attorney might retain a structural engineer, structural steel shop fabricator and structural steel installer, in addition to a general contractor. As the case evolves, it may become fairly clear that there was nothing wrong with the design and manufacture: i.e., liability lies exclusively with the field assembly. Because the evidence is very strong, a decision can be made not to designate the structural engineer or shop fabricator at the designation due 50 days before trial. In prior years that was a safe decision because California allows the later designation of supplemental or rebuttal experts after the initial disclosure date.

The California statute dealing with supplemental or rebuttal experts (Code of Civil Procedure Section 2034.280) allows a party to supplement its initial expert designation. There are two conditions associated with the supplemental designation: (1) it must be for an issue on which an adverse party has designated an expert; and (2) the supplemental designation is allowed only if there was not a prior subject matter designation by the party seeking to add an expert. In the above scenario, there was a level of safety in not designating a structural engineer at the outset. If an opponent did not designate a structural engineer, you could not later add that witness, but that was known at the time the initial designation was due. Also, since the other party did not designate that specific type of expert, at least the field was level since neither you nor your opposition would have an expert on this issue. On the other hand, if the opposing party did designate a structural engineer, you could simply make the supplemental designation. It was a fairly simply thought process: i.e., if you do not think a certain expert was necessary do not designate the expert, knowing that if the other side decides to pursue a certain theory you could always designate later. However, recent case significantly undercuts this process.

The Expert Disclosure Process

In Fairfax v. Lords, 138 Cal. App. 4th 1019 (2006), the defendant did not designate an expert at the time of the initial disclosure. The plaintiff did timely designate one expert. The defendant then timely prepared a supplemental designation to rebut the plaintiff’s expert. This seems to have been proper within the context of the statute and was allowed by the trial court. The Court of Appeal decided that the defendant’s actions were improper. The Court of Appeal determined that the defendant had misused the expert disclosure process. The defendant knew the issues in the case and what issues likely would require expert testimony. By not designating any expert at the time of the initial designation, the defendant abused the discovery process. The remedy for the defendant’s action was the inability to use any expert.

The defendant argued that it had no duty to disclose an expert in the initial disclosure. It further argued that forcing a the defendant to disclose experts at the time of the initial disclosure was, in effect, requiring defendant to spend money unnecessarily: i.e. it would force a defendant to engage an expert and have that expert get ready to give opinions and testify when that work might not be necessary if the plaintiff did not designate an expert. The Court of Appeal responded to these arguments by saying, basically, too bad. Because the defendant had a reason to anticipate the plaintiff’s expert designation, the defendant had an “obligation” to designate an expert on all of the anticipated issues at the time of the initial exchange. The failure to do so terminated the defendant’s right to use an expert on any “anticipated” issue.

Fairfax is a case of first impression in California. Further, it cites to no other cases in reaching its decision. Nonetheless, it represents the state of the law in California and creates many problems in preparing a case for trial. Using the above structural steel scenario, it is quite possible that the failure to designate a structural engineer at the outset will mean there is no ability to use a structural engineer. While Fairfax leaves open the possibility that a trial court would allow a later designation because there was no anticipation that a structural expert would be needed, it is just as likely that a court would say that the issues were known and that the failure to designate initially leads to a waiver of the right to have that expert. One also can envision the Court saying: “if you thought enough to hire a consultant on an issue, you certainly anticipated the issue,” or “if your opponent thought of it, you should have as well.”

Better Safe Than Sorry

Since Fairfax, the safe way to handle an issue on which a party thinks the other side might designate an expert is to retain and designate its own expert. If the prophylactic designation turns out to be unnecessary, all is not lost. California allows the withdrawal of a designated expert after the designation. And, so long as opinions have not been disclosed, and the party retains the expert as a consultant after withdrawal, there is no waiver of the attorney-client privilege or work product doctrine. While the consequence of designating and withdrawing means increased complexities for what is perhaps nothing more than the equivalent of a “just in case” designation, there is no resulting disadvantage to the party’s case.

Fairfax increases the burden on the attorney and client to make sure that all possible issues are covered in the initial designation, and that possible issues left open are done knowing possible consequences. More than ever, the attorney and client must work together to determine the scope of experts designation, and resulting costs, necessary to succeed in complex construction cases.

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