Guzman v. SUPERIOR COURT OF LOS ANGELES CTY.

California Court of Appeal Oct 20, 1993 No. B075160Published

Before: Woods (Fred)

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Holding. When a trial court orders a new trial, the parties are entitled to designate new expert witnesses for the subsequent proceeding.

Issues

May a plaintiff designate new expert witnesses when a trial court orders a new trial on damages?

Disposition. Writ of mandate granted.

Quotations verified verbatim against the opinion

“When a trial court orders a new damages trial, may the plaintiff designate new expert witnesses? Our answer is yes.”

“the effect “left the case at large and the parties were placed in the same position as if it had never been tried, and plaintiff was afforded the right to introduce any additional or new evidence upon the issues raised.””

Opinion

WOODS (Fred), J.

When a trial court orders a new damages trial, may the plaintiff designate new expert witnesses? Our answer is yes. Accordingly we grant petitioner’s application for a writ of mandate.

Procedural Background

On March 20, 1989, petitioner, while detained by a Bargains Unlimited employee, was injured. He sued real parties in interest (RPI) for assault, battery, and negligence.

Prior to trial, pursuant to Code of Civil Procedure section 2034, the parties exchanged “information concerning each other’s expert trial witnesses.”

[707]

(Code Civ. Proc., § 2034, subd. (a).) Petitioner designated two experts, Drs. Mark Greenspan and Karl Epstein, both orthopedic surgeons. Thereafter, petitioner moved to augment his expert witness list but the trial court denied the motion.

Trial began September 18, 1992. Petitioner called his treating physician but did not call either designated expert, the orthopedic surgeons. The jury returned a verdict for petitioner: $650,000 reduced 10 percent by petitioner’s negligence to the sum of $585,000.

On December 4, 1992, the trial court conditionally granted RPI’s motion for a new trial. If petitioner accepted a reduction of compensatory damages to the sum of $250,000, the motion would be denied. If petitioner rejected the reduction, a new damages trial would be granted. Petitioner rejected the reduction and a new damages trial was set for June 7, 1993.

' Well before the new trial date, on April 23, 1993, petitioner filed a motion seeking to designate new expert witnesses. On May 5, 1993, after an unreported hearing, the trial court denied the motion. Petitioner applied for a writ of mandate and a stay of the trial. On May 14, 1993, this court issued an order denying the petition.

On June 24, 1993, our Supreme Court granted a petition for review and transferred the matter to this court with directions to vacate our May 14, 1993, order and to issue an alternative writ. We did so on July 6, 1993.

We heard argument from the parties on October 14, 1993.

Guzman v. SUPERIOR COURT OF LOS ANGELES CTY.

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