Powell v. Superior Court

Opinion

WHITE, P. J.

The Civil Discovery Act of 1986, Code of Civil Procedure section 2016 et seq. (Stats. 1986, ch. 1334, § 2 and ch. 1336, § 2) rewrote the statutes governing pretrial disclosure of expert witnesses. We consider a portion of the new statute. Under former law (Code Civ. Proc., §§ 2037-2037.9; Stats. 1978, ch. 1069, § 1, p. 3285, amended by Stats. 1980, ch. 552, § 1, p. 1535; Stats. 1982, ch. 1400, §§ 1-5, pp. 5336-5338), a party who had not designated the same expert had no right to call an expert designated by another party. The new law, Code of Civil Procedure section 2034, added a provision designed to solve this perceived problem. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 1989) § 8:1723, p. 8J-22, rev. #2, 1987.) We address here a trial court ruling which failed to apply this solution. We conclude that the court erred in barring petitioner from calling an expert disclosed by real parties in interest.

Code of Civil Procedure section 2034 provides for a mutual and simultaneous exchange by all parties of a list of those witnesses expected to give

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testimony in the form of expert opinion. The section sets forth procedures for exchanging information about the experts and their expected testimony, procedures for deposing the listed experts, procedures for augmenting the lists or submitting tardy information, and procedures for sanctioning parties who do not properly disclose their experts.

Following these procedures, real parties in interest disclosed two witnesses, including Dr. Maurice P. Carlin, who had performed a defense medical examination of petitioner Pamela Jo Powell. Petitioner disclosed some nine expert witnesses and stated that she would also subpoena and call Dr. Carlin, but she did not formally disclose him as an expert witness. She then deposed Dr. Carlin under the procedures set forth in Code of Civil Procedure section 2034, subdivision (i).

Real parties in interest moved for a protective order to prevent petitioner from calling Dr. Carlin as a witness. They argued that petitioner had not properly listed him as her expert and that it would seriously inconvenience Dr. Carlin to require him to make two appearances at trial. Petitioner opposed the motion, claiming a right to subpoena Dr. Carlin as a percipient witness because of his examination of petitioner. After hearing, the court granted the protective order ruling that, because of failure to comply with the disclosure requirements of Code of Civil Procedure section 2034, petitioner was barred from presenting Dr. Carlin’s expert opinion. This petition followed. It meets the standards set by