Legal News

RECENT DECISION ON USE OF DECLARATIONS BY UNDISCLOSED EXPERT WITNESS IN SUPPORT OF MSJ

The California Supreme Court recently looked at the legal requirements of expert disclosure as they pertain to a motion for summary judgment in Perry v. Bakewell Hawthorne, LLC (Feb. 23, 2017) 17 C.D.O.S. 1641. Under the Code of Civil Procedure (“CCP”), parties may demand exchange of expert witness information once the initial trial date is set. A party’s “unreasonable failure to respond” to a demand for disclosure can render that “party’s expert opinion inadmissible, unless the court grants relief.” The question before the court in Perry was whether the exclusion of a party’s undisclosed experts applies to motions for summary judgement as well as trial; since the court could find no answer in the expert disclosure statutes, it looked to CCP section 437c—the statute authorizing summary judgments. Because that section requires that evidence submitted in support of a motion for summary judgment must be admissible at trial, the court held that if a 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 so holding, the Supreme Court affirmed the appellate court’s affirmation of the trial court’s entry of judgment in favor of moving party defendant. It also overruled the decision in Mann v. Cracchiolo (1985) 38 Cal.3d 18, and to the extent it is inconsistent with the Perry decision, disapproved of Kennedy v. Modesto City Hospital (1990) 221 Cal.App.3d 575.

Plaintiff Perry sued defendant and JP Morgan Chase Bank for personal injuries sustained on a property owned by Bakewell and leased out by Chase. After a trial date was set, Chase demanded exchange of expert information. Perry did not respond to the demand for disclosure, yet he offered the declarations of two experts in support of his opposition to Bakewell’s motion for summary judgment. Bakewell objected to the declarations on the grounds that Perry had not disclosed the experts as required by statute. The trial court sustained Bakewell’s objection to the declarations and granted the MSJ. After some post-trial motions, the trial court entered judgment for Bakewell and the judgement was affirmed by the appellate court.

The Supreme Court spent some time distinguishing the cases relied upon by Perry, namely, Kennedy and Mann cited above. In essence, the court focused on the requirements that evidence submitted in support of a MSJ must be admissible at trial, and that any suggestion in Kennedy that evidence contained in a MSJ “need not be admissible at trial” was error. Remedies available to parties who fail to timely disclose are available “before summary judgment, and should be invoked as soon as the party discovers the need to submit a declaration by a previously undisclosed expert.” Without relief from the court, a declaration by an undisclosed expert is inadmissible evidence—at trial and at summary judgement, in the opinion of the court.

Because CCP “section 437c has always required the evidence relied on in supporting or opposing papers to be admissible,” a declaration that is deemed inadmissible at trial because the declaring expert was not disclosed, will also be inadmissible for purposes of a MSJ. (Emphasis in original.) The court held: A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial (See section 437c, subd. (c).) When the time for exchanging expert witness information has expired before a summary judgment motion is made, and a party objects to a declaration from an undisclosed expert, the admissibility of the expert’s opinion can and must be determined before the summary judgment motion is resolved.” (Emphasis in original.)

On the face of it, this decision does not seem to impact MSJs filed before a trial date is set and disclosure of experts is demanded. However, given the vagaries of court calendars, party requests for continuance, and so on, it might be prudent to consider whether the expert declaration one intends to use in support of or opposition to a MSJ will be drafted by an expert the moving party or opponent plans to disclose. If one files a MSJ and uses the declaration of an expert that the attorney does not plan to disclose and call to testify at trial (whether because of cost, distance, jury appeal, etc.), one runs the risk of having the undisclosed expert’s declaration be excluded and losing on the MSJ if the motion ends up being continued until after the trial is set and demand for exchange of experts occurs. It goes without saying that if one receives a MSJ or an opposition to a MSJ that relies on declarations made by undisclosed experts (after demand for disclosure is exchanged, at least) one should object to the use of that declaration.

It is also worth mentioning that in footnote 7, the court observes Perry’s counsel did not rely on either the Kennedy or Mann decisions in the trial court and counsel’s application for “leave to designate experts” was not part of the appellate record, nor was there any evidence counsel tried to “persuade the trial court that Perry’s failure to disclose experts had been reasonable.” In footnote 6, the court observes that if the time to submit opposition to a MSJ prevents the party from getting a ruling on a motion for relief for failure to timely disclose, that party may (perhaps should) seek a continuance of the MSJ under section 437c(h).

For more information on this and other recent decisions, please reach out to Reneé A. Richards.