BONDS v. ROY (1998)

Does it need to be said that the exchange of expert witness information is not supposed to be a vehicle for the publication of misinformation?   Apparently it does.

Here is what defendant sought to accomplish below:  Responding to a Code of Civil Procedure section 2034 demand for exchange of names of expert witnesses in a medical malpractice case, he designated one expert to testify on liability and causation and a second to testify concerning the extent of plaintiff's disabilities.   Not until the last day of trial did defendant reveal another intention, that the second expert would testify not only on damages but also on the standard of care - indeed, he was to be the “linchpin” for the defense, providing the “defining moment at trial.”   Without justification or excuse, defendant thus sought to spring expert testimony on liability for which plaintiff (justifiably relying on the expert witness declaration) was totally unprepared.

I

Charles Bonds sued Mohan Roy for negligently severing a major nerve on his right arm during vascular surgery.   Roy denied the nerve had been cut, contending it had sustained a diffuse stretch or tear-“an unexpected and unavoidable complication of this very delicate surgery․”

Bonds was a resident of Guam, where he was employed as a body-and-fender repair worker.   While on a stateside vacation to visit his mother, he consulted a local cardiologist concerning a “chronic problem” with his right arm.   The cardiologist referred him to Roy, a cardiovascular and thoracic surgeon, who recommended artery bypass surgery to remedy a blockage of the subclavian artery leading to his right arm and hand.   Roy told him it would be a simple surgery and he could return to Guam within five days.

Bonds awoke from the surgery unable to raise his arm.   Roy initially attributed this to grogginess from the anesthetic, but there was no improvement.   Defendant consulted a neurologist at first;  but by the time Roy referred plaintiff to a neurosurgeon, the arm was beyond repair.

Bonds was 45 years old at the time of the surgery.   He claimed the operation caused him to suffer from paralysis of his shoulder and arm and “virtually complete loss of use” of his right arm and hand.   He could not work as an automotive repairman.

The parties exchanged designations of experts.   Roy's attorney declared both Roy and Robert Shuman, a cardiovascular surgeon, would testify as defense experts on liability and causation.   The declaration also listed Jan Duncan, an orthopedic surgeon, as an expert on damages.

The limited scope of Duncan's expertise was reiterated during his deposition.   He testified he had been retained “to evaluate the disability of Mr. Bonds at the time I saw him.”

On the first day of trial, Roy's attorney again represented he would call only Shuman and Roy as liability experts.   He filed a motion in limine to preclude plaintiff from presenting more than one liability expert, arguing multiple experts would be cumulative.   The motion was denied.

Plaintiff presented his liability experts during trial, and the defense countered with Roy's testimony and Shuman's.   Shuman testified the nerve had not been cut and that Roy did not violate the standard of care.

Duncan was called as the last defense witness.   Roy's attorney revealed in an offer of proof that Duncan could testify beyond the subject of damages to cover liability issues as well, including whether the nerve had been cut and whether “it is within the standard of practice when there's a suspected nerve injury to call in a neurologist.”

Roy conceded Duncan's proposed testimony fell well beyond the matters described in his expert witness declaration and the topics covered in his deposition.   Since Duncan was the last defense witness, the court noted, “There's not enough time to adjourn and take the deposition.”   It ruled, “[I]t would be unfair and prejudicial ․ a ․ if he went beyond the scope of what he testified to at his deposition.”   Duncan did testify, however, regarding plaintiff's ability to work and his prospects for securing employment.

The jury found Roy's negligence was a legal cause of injury to Bonds.   Roy appealed from the judgment of $457,320;  Bonds cross-appealed from the court's refusal to award costs because his cost bill was untimely filed.

II

 Code of Civil Procedure section 2034 affords litigants the opportunity for a reciprocal disclosure of the identities and the opinions and reports of those expert witnesses they intend to call at trial.   It educates each side “ ‘to know which expert will testify for the other side and what they will have to say.’ ”  (Martinez v. City of Poway (1993) 12 Cal.App.4th 425, 428, 15 Cal.Rptr.2d 644.)   It is designed to encourage settlements, facilitate trial preparation, and prevent surprise and delay.  (Province v. Center for Women's Health & Family Birth (1993) 20 Cal.App.4th 1673, 1683-1684, 25 Cal.Rptr.2d 667, disapproved on other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 41, 32 Cal.Rptr.2d 200, 876 P.2d 999.)

The implementing mechanism is the “expert witness declaration.”   It must include “a brief narrative statement of the general substance” of the expert's expected testimony and “[a] representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial.” (§ 2034, subd. (f)(2).) ¹  Parties who have “unreasonably failed” to submit such a declaration will suffer exclusion of the expert's testimony at trial.  (§ 2034, subd. (j).) ²

 Roy says he did not “unreasonably fail” to file an expert witness declaration, because he designated Duncan as his expert on damages.   Having so complied with the form of the statute, Roy claims he was free to elicit testimony from Duncan on any subject.   According to Roy, “[a]n inaccurate or incomplete description of an expert's proposed opinions in an expert designation form is not a statutory ground[ ] for exclusion.” ³  Roy relies upon Martinez v. City of Poway, supra, 12 Cal.App.4th 425, 15 Cal.Rptr.2d 644 and Castaneda v. Bornstein (1995) 36 Cal.App.4th 1818, 43 Cal.Rptr.2d 10.

 We believe Martinez and Castaneda, to the extent they support Roy's argument, used unnecessarily broad language and misread the letter and spirit of Civil Procedure section 2034 and its pertinent legislative history.   Our task in interpreting the statute is to construe its provisions reasonably to give effect to its apparent purpose;  if amenable to two alternative interpretations, we adopt the reasonable meaning and reject that which would lead to an unjust and absurd result.  (City of Oakland v. Superior Court (1996) 45 Cal.App.4th 740, 757, 53 Cal.Rptr.2d 120.)

 We decline to construe section 2034 so that litigants may submit wholly inadequate and misleading expert witness declarations with impunity.   Notwithstanding Martinez and Castaneda, courts should limit or exclude under section 2034, subdivision (j) expert testimony offered by parties who do not provide sufficient notice of the subject areas of their designated experts.

The commentators support our commonsense interpretation of section 2034.   According to DeMeo, the expansive language in Martinez is “contrary to the spirit and intent of the statutory scheme set forth in Code Civ. Proc. § 2034 and should be overturned.”  (DeMeo and DeMeo, Cal. Deposition and Discovery Practice (1997) ¶ 64.50[1] at p. 64-32.2, italics added.)   Weil and Brown fault the confusion Martinez caused in ignoring the provisions of section 2034, subdivision (k)(2) “which provides an elaborate procedure for amending expert witness declarations as to the ‘general substance’ of a designated expert's testimony.”  (Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 1997) ¶ 8:1677.)   The authors ask, “[I]f inadequate disclosure is not ground for exclusion of the expert's testimony, why is an amendment necessary?  [¶] The missing information could no doubt be ascertained by deposing the expert.   But that is no excuse:  The whole purpose of an expert witness declaration is to enable opposing parties to determine whether to incur the effort and expense of depositions!”  (Ibid.) Pending further legislative action, they suggest “courts might invoke the testimony exclusion sanction for flagrant disregard of the statutory requirements re expert witness declarations:  i.e., courts might treat wholly inadequate disclosures the same as failure to submit any declaration at all.”   (Id. at [¶] 8:1679.) ⁴

Martinez and Castaneda placed great weight on the Legislature's decision, in subsequent clean-up amendments to the Civil Discovery Act of 1986, to jettison a previous version of section 2034, subdivision (j), which had expressly listed inadequate expert witness declarations as a reason to exclude expert testimony.  (Compare Stats.1986, ch. 1336, § 2, p. 4756 with Stats.1987, ch. 86, § 17, p. 351.)   According to Martinez, “[a]lthough the earlier expert exchange statute contained an express provision permitting exclusion where the ‘general substance’ of an expert's testimony was not disclosed, in enacting section 2034, the Legislature rejected a proposal that such power be provided under section 2034.”  (Martinez v. City of Poway, supra, 12 Cal.App.4th at p. 430, 15 Cal.Rptr.2d 644.)

But we have a more benign view of the clean-up amendments:  The Legislature was concerned that litigants would use “a narrow, technical interpretation” of the content requirement for expert witness declarations to hobble their adversaries' expert witness at trial.   As contemporaneously explained by Professor Hogan, “This change should prevent the exclusion of an expert's trial testimony on the basis of minor shortcomings in the declaration's description of the expected testimony of the expert.   However, it certainly should not be read to countenance a document that is an ‘expert witness declaration’ in name only, that is, one that does not evidence at least a good faith effort to furnish the ‘general substance’ of the expert's expected testimony.”  (1 Hogan, Modern Cal. Discovery (4th ed.   1988) § 10.14 at p. 645, italics added.) ⁵

This is precisely the point subsequently made in Castaneda v. Bornstein, supra, 36 Cal.App.4th at p. 1828, 43 Cal.Rptr.2d 10, which, relying on Martinez, refused to exclude expert testimony on causation where it was only disclosed that he would testify on matters “leading to” an infant's death.   Castaneda held the declaration, though not written in “strict legal terms,” was sufficient to put the opposing party on notice the expert would testify as he did.   Likewise, we do not believe the Legislature intended for “parties [to] argu[e] over the technical legal sufficiency of the expert witness declaration prior to the admission of each expert's testimony.   Rather, these ‘brief narrative statements' were intended to give the opposing party fair notice of the subject areas the expert would address in trial testimony in order for the opposing party to prepare cross-examination and rebuttal.”   (Ibid., italics added.) ⁶

Following Professor Hogan's advice, we read the statute to allow designated experts to testify notwithstanding minor variations between the expert witness declaration and the expected trial testimony.   As the “clean-up” amendments make clear, the statute is not intended to create procedural traps for the unwary.   But we decline to read any broader purpose into the amendments.   Harmonizing the holdings in Martinez and Castaneda with the express statutory purpose underlying expert witness exchanges, we hold that trial courts have the power to exclude testimony from experts whose grossly defective declarations fail to provide “fair notice of the subject areas the expert [will] address in trial testimony, [sufficient] for the opposing party to prepare cross-examination and rebuttal.”  (Castaneda v. Bornstein, supra, 36 Cal.App.4th at p. 1828, 43 Cal.Rptr.2d 10.)

III

The court had ample cause under our construction of section 2034, subdivision (j) to preclude Duncan from testifying as an expert on the standard of care.   Roy “unreasonably failed” to file an expert witness declaration because of the substantial discrepancy between the substance of his pretrial declaration regarding Duncan (as an expert on damages) and his actual proffer at trial (as an expert on liability).

At oral argument Roy's appellate counsel (who did not represent Roy at trial)‘explained’ that trial counsel's reference in the narrative statement to “damages” actually meant “damages” to the brachial plexus nerve, not damages sustained by the plaintiff.  (He magnanimously conceded, however, the statement was “perhaps not as clear as it could have been.”) We do not know if this was trial counsel's intent, but if it was, any such pettifoggery by a lawyer during discovery or trial suggests we should count the silverware.   At his deposition, Duncan flatly denied he would provide any expert testimony or opinion except on damages-which he defined to mean the extent of plaintiff's disability.⁷  We see no reason why plaintiff's counsel possibly would have deemed it necessary to question Duncan about his supposed expertise on liability issues related to the brachial plexus

If Roy's trial counsel actually intended to spring Duncan as the surprise ‘capstone’ witness on liability (a contention that itself is open to question because Shuman already had testified on the same subject), then plaintiff would have been better served had he received no expert witness declaration at all.   It affirmatively misled him from questioning Duncan concerning his opinions regarding the standard of care issues, particularly when Duncan himself confirmed during his deposition that he would not testify regarding the standard of care.   The court was well within its discretion in declining a continuance and applying the exclusion sanction in section 2034, subdivision (j).

If Duncan's opinion was so critical on the subject of brachial plexus nerve injuries, we ask the obvious:  Why was he not designated as an expert on liability?   And why did Roy's lawyer not mention Duncan as a potential witness when he moved in limine to exclude plaintiff's “cumulative” experts on liability?   There was no surprise regarding the issues to be litigated.   Defendant cannot be heard to complain on appeal for the failure of any high-risk attempt to ambush the plaintiff.

IV**

V

 On plaintiff's cross-appeal, we rely on recent Supreme Court authority to find his cost bill to have been timely filed.  (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 61 Cal.Rptr.2d 166, 931 P.2d 344.)   Following oral argument, the parties submitted supplemental briefs on the impact of Van Beurden.

The trial court struck Bonds' memorandum of costs as untimely filed because it was lodged more than 15 days after the clerk served a copy of the judgment on the parties.  (Cal. Rules of Court, rule 870(a).)   Bonds contends the time for filing his cost bill did not commence to run until September 15, when the clerk served and filed a document entitled, “Notice of Entry of [ ] Judgment on Special Verdict, Finding & Periodic Payments Pursuant to CCP 667.7.”   His memorandum of costs was timely if September 15 was the trigger date.

Van Beurden resolves this issue adversely to Roy. To avoid “guesswork” and “uncertainty” concerning whether the trial court actually ordered the clerk to mail notice of entry of judgment, Van Beurden held the clerk's mailed notice “must affirmatively state that it was given ‘upon order by the court’ or ‘under [Code of Civil Procedure] section 664.5,’ and a certificate of mailing the notice must be executed and placed in the file.”   (Id. at p. 64, 61 Cal.Rptr.2d 166, 931 P.2d 344.)   The September 9 mailing contains no such notation.

Roy says Van Beurden is a “narrow” decision applying “only to cases involving the timeliness of a notice of appeal,” not to cost bills, which are governed by a different rule (Cal. Rules of Court, rule 870(a)).   Roy contends that rule 870 “only requires service of written notice that a judgment was entered,” and does not compel the clerk to comply with Code of Civil Procedure section 664.5 to trigger the filing deadline for costs.¹²

But rule 870(a) expressly refers to notice by the clerk pursuant to section 664.5.  Van Beurden itself made this point:  “Despite these amendments to the Code of Civil Procedure, the timing provisions regarding motions for a new trial [citations] continued to reference the date of mailing of notice by the clerk of the court ‘pursuant to Section 664.5.’   So, too, did several California Rules of Court․  (See also Cal. Rules of Court, rule 870(a) [claiming prejudgment costs].)”  (Van Beurden, supra, 15 Cal.4th at p. 60, 61 Cal.Rptr.2d 166, 931 P.2d 344.)   We refuse to read this provision out of the rule, and hold the same “mechanism” triggers filing a memorandum of costs as it does filing notices of appeal.¹³

The only thing “narrow” about Van Beurden is Roy's reading of it.   Just as parties should not operate in uncertainty about when they must file an appeal, so too they should not have to guess about when to file a memorandum of costs.   Because the clerk's notice did not state that it was given “under court order” or pursuant to section 664.5, it did not commence the time to file a memorandum of costs.   The court erroneously refused to consider allowable costs.

The judgment is affirmed.   The order striking Bonds' memorandum of costs is reversed, and the cause is remanded for a hearing on that issue.   Bonds is awarded costs

on appeal and the cross-appeal.

FOOTNOTES

1.   Following service of a demand for exchange of experts, section 2034, subdivision (f)(2) requires that each party serve the other with an expert witness declaration “signed only by the attorney for the party designating the expert, or by that party if that party has no attorney.   This declaration shall be under penalty of perjury and shall contain:  “(A) A brief narrative statement of the qualifications of each expert.  [¶] (B) A brief narrative statement of the general substance of the testimony that the expert is expected to give.  [¶] (C) A representation that the expert has agreed to testify at the trial.  [¶] (D) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial.  [¶] (E) A statement of the expert's hourly and daily fee for providing deposition testimony․”  (Italics added.)

2.   Section 2034, subdivision (j) states, “Except as provided in subdivisions (k), (l ), and (m), on objection of any party who has made a complete and timely compliance with subdivision (f), the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:  (1) List that witness as an expert under subdivision (f).  (2) Submit an expert witness declaration.  (3) Produce reports and writings of expert witnesses under subdivision (g).  (4) Make that expert available for a deposition under subdivision (i).”  (Italics added.)

3.   Roy says the court should have recessed the trial to allow Duncan to be deposed.   Roy does not mention what the judge and jurors should have done to occupy their time while the deposition was being taken.   Since Duncan was Roy's last witness, the timing problems alone justified the decision to exclude his opinions on liability.   Nowhere does Roy explain why he did not raise Duncan's expanded role at or before the start of trial when the “deposition could have been taken after court hours, thereby avoiding any disruption of the trial proceedings.”   (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 920, 184 Cal.Rptr. 393.)   By apparently deciding to keep Duncan “in the closet” until the close of testimony, Roy “set the stage for the trial court's reasonable exercise of its discretion denying the requested continuance for deposition purposes.”  (Ibid.)

4.   The same authors later comment that the rule announced in Martinez v. City of Poway, supra, 12 Cal.App.4th 425, 15 Cal.Rptr.2d 644 “could operate unfairly.   A party might attempt to ‘hide the ball’ by stating his or her key expert will testify on unimportant issues.   If opposing parties fail to depose that expert fully, they may be rudely surprised at trial!  [¶] It is doubtful that the Legislature intended such a result.   Further legislation seems likely.”  (Weil & Brown, supra, [¶ ] 8:1717.4, Second, italics added.)

5.   Weil and Brown provided a similar explanation for the Legislature's change in the grounds for excluding expert witness testimony:  “ ‘Under former law, it was ground for objection to expert witness testimony at trial that the expert witness declaration failed to state sufficiently the expert's qualifications or the “general substance of expected testimony,” etc.  [Citation.]  [¶] However this led to considerable “gamesplaying”-i.e., raising objections at trial to defects that could have been corrected earlier.   That is apparently the reason for the present statute․’ ”  (Martinez v. City of Poway,supra, 12 Cal.App.4th at p. 430, 15 Cal.Rptr.2d 644, quoting Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 1992) ¶ 8:1717.2, rev. # 1 1992.)

6.   Regrettably, Castaneda followed its holding regarding the adequacy of the expert witness declaration with dicta supporting Martinez.   While noting “the conclusion reached in Martinez may appear to be at odds with the spirit of section 2034, subdivision (j),” the court felt constrained to agree with Martinez based on “the language of the statute and its legislative history.”  (Castaneda v. Bornstein,supra, 36 Cal.App.4th at p. 1829, 43 Cal.Rptr.2d 10.)   For the reasons stated above, we part company with Castaneda's dismal conclusion.

7.   At his deposition Duncan testified as follows:  “Q:  What did you understand your assignment to be on this case when you were retained by [defendant's] law firm?  [¶] A:  Well, basically two things.   One is to evaluate the disability of Mr. Bonds at the time I saw him, and the other was to evaluate how much disability he was having prior to the surgery, based on the records.  [¶] Q:  Anything more to your assignment, as you understood it?  [¶] A:  No. [¶] Q:  ․ [Y]ou did not believe that you were going to be giving any testimony or any opinion concerning the standard of care issues that might be involved in this case;  is that correct?  [¶] A:  Yes.”Duncan further testified at his deposition to this effect:  “Q:  ․ Are there any opinions or conclusions that you have communicated to counsel for defendant concerning the disability of Mr. Bonds when you saw him that are not reflected in the discussion portion of your report?  [¶] A:  Not that I know of.”Given this exchange (which seems to us to cover the subject of standard of care and causation) we fail to understand how Roy can assert “[t]hat Respondent's attorney's questions were not probing and did not elicit Dr. Duncan's opinions on standard of care issues․”

FOOTNOTE.   See footnote *, ante.

12.   Rule 870(a) provides in part, “A prevailing party who claims costs shall serve and file a memorandum of costs within 15 days after date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.”

13.   The “second triggering mechanism” to which Roy refers applies to service of written notice of entry of judgment by the party submitting a judgment for entry.   This is the “usual practice” in civil litigation.   (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., supra, 15 Cal.4th at p. 65, fn. 5, 61 Cal.Rptr.2d 166, 931 P.2d 344, citing 3 Wegner et al., Cal. Practice Guide:  Civil Trials and Evidence (The Rutter Group 1996) ¶ 17:86, p. 17-19.)   As Van Beurden further points out, Code of Civil Procedure section 664.5 was amended “to place the primary burden of providing formal ‘notice of entry’ of judgment on the party submitting the order or judgment for entry in any contested action, although the court, in exceptional circumstances, may also order the clerk of the court to give such notice.”  (Id. at pp. 59-60, 61 Cal.Rptr.2d 166, 931 P.2d 344.)   Roy does not contend he served such a notice.

CROSBY, Associate Justice.

SILLS, P.J., and WALLIN, J., concur.