Dangers of Failing to Exchange Expert Witness Information

By February 29, 2016 May 3rd, 2018 Insurance Blog
William Hoang

William Hoang

In California, a party to a case has the right to demand the exchange of expert witness information. At times, expert witnesses can make or break a case, as demonstrated in a recent California Court of Appeal decision, Perry v. Bakewell, which highlights the importance of timely exchanging expert witness information in a case.

In Perry, a defendant served a demand for expert witness information on the other parties. The applicable California Code of Civil Procedure required the parties to exchange information concerning expert witnesses on or before the date of exchange specified in the demand. While the defendant who served the demand and another party participated in the exchange, the plaintiff did not.

The trial court determined that the plaintiff unreasonably failed to exchange expert witness information. The ultimate result was that the plaintiff lost on a summary judgment motion brought by a defendant because the trial court excluded the plaintiff’s expert witness declarations submitted in opposing the summary judgment motion. The appellate court affirmed the trial court’s ruling.

This case serves as an example of the harsh ramifications if a party fails to timely designate experts and exchange expert witness information. Parties may prefer to hold off on retaining and designating experts until absolutely necessary. However, it is always best to think about retaining experts in advance to ensure that no issues will arise in failing to timely designate experts.

Moreover, this case demonstrates how parties may use expert witness demands, and a party’s failure to comply with the applicable code requirements, as a tactical advantage.