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CA Personal Injury Claim Clarifies Expert Disclosure Procedures

When people in California are injured in accidents, they may be able to recover compensation by filing lawsuits against parties who negligently contributed to their accidents and injuries. People who file lawsuits need to be aware of the discovery rules as shown by Du-All Safety, LLC v. Superior Court, Cal. Ct. App. Case No. A115119. The discovery rules outline when expert witnesses that the parties intend to call should be disclosed to the other side.

Factual background of the case

In Nov. 2015, Mark Krein was walking on a suspended steel footbridge at his job at the Tuolomne Water District. The bridge had been constructed in 1974 as a part of a wastewater treatment plant, and it connected one digester tank to another. While Krein was walking across the footbridge, it suddenly collapsed beneath him. He plummeted to the ground and suffered severe injuries that resulted in paraplegia.

In 2002, Du-All Safety was contracted to inspect the wastewater plant and its equipment, including the footbridge, on a periodic basis. Following his injury accident, Krein and his wife filed a lawsuit on March 2, 2017. They named 15 defendants, including Du-All Safety. They alleged that Du-All failed to use reasonable care to inspect the bridge and to recommend needed repairs and safety hazards. Du-All filed an answer to the complaint on March 17, 2017.

The Appeals Court stated that the record did not indicate that there were any problems with discovery in the case. The case was initially scheduled for a jury trial on May 18, 2018. Du-All filed a continuance motion for the trial on March 7, 2018, and the parties filed a stipulation. On May 7, 2018, both parties filed their expert witness disclosures. The plaintiffs filed a disclosure indicating that they intended to call seven witnesses, including a structural engineer and a safety consultant. They also indicated that they intended to call five other witnesses, including a life care planner, a chemist, an economist, a psychiatrist, and a vocational rehabilitation expert.

In its initial expert witness disclosure, Du-All only indicated that it intended to call a structural engineer and a safety consultant. After receiving the plaintiff’s disclosure, it filed a supplemental expert witness disclosure, indicating that it intended to call five additional experts to rebut the plaintiffs’ additional experts.

The plaintiffs filed a motion to strike Du-All’s five additional witnesses. The Superior Court granted the plaintiffs’ motion for four of the additional experts and denied it for the defendant’s chemist. Du-All filed an appeal of the court’s ruling.

Issue: (1) Whether the Superior Court abused its discretion when it excluded four of the defendant’s expert witnesses for failing to disclose them in its initial expert disclosure filing? (2) Whether Du-All engaged in gamesmanship, which should preclude it from being able to call the additional five experts?

In its appeal to the California Court of Appeals, Du-All argued that its supplementary expert witness disclosure was filed properly under the discovery statutes. The plaintiffs opposed the defendant’s petition and argued that the statutes mandated that Du-All should have filed its notice for the five additional expert witnesses on May 7 instead of later.

Du-All also argued that the plaintiffs would have time to depose the additional expert witnesses since the trial had been moved to October 2018. The Court of Appeals issued an alternative writ of mandate that directed the Superior Court to deny the plaintiffs’ motion to strike the defendant’s expert witnesses. The Superior Court subsequently granted the plaintiffs’ motion for reconsideration, and the defendant filed a traverse motion with the Court of Appeals.

Rule: The parties are required to simultaneously disclose all experts that they intend to call at trial. In response to a plaintiff’s disclosure of experts, a defendant may file a supplementary disclosure within 20 days.

Under CCP § 2034.210, a party to a trial may demand that there is a simultaneous exchange of notices of experts that both parties intend to call at trial. Under CCP § 2034.280, a party may file a supplemental disclosure of additional experts it may call to rebut the experts that the other party intends to call at trial.


The appeals court first considered whether the trial court had abused its discretion in striking the defendant’s additional expert witnesses. It noted that a trial court’s discretion is not unlimited but instead must conform to the laws. The court went on to note that actions by a trial judge that extend beyond the confines of the laws can constitute an abuse of discretion.

The appeals court then considered whether Du-All had violated the discovery rules with its supplemental disclosure of expert witnesses. The court applied the statutes and found that Du-All followed the discovery rules. It noted that while any party may demand a simultaneous exchange of expert witnesses that each intends to call at trial, Du-All had done that with its disclosure of its two initial witnesses. The court then applied the second statute that allows a party to submit a supplemental disclosure of expert witnesses within 20 days of receiving the other party’s list. It found that Du-All had done that as well.

The court found that the trial court’s exclusion of the additional expert witnesses was in error. It then considered whether Du-All had engaged in gamesmanship, which is a pattern of misconduct that should lead to an adverse ruling. The appeals court found that Du-All had not engaged in gamesmanship and had simply had some scheduling issues during the months of May and June 2018.


The Court of Appeal issued a peremptory writ, ordering the Superior Court to vacate its motion in which it granted the plaintiffs’ motion to strike the additional expert witnesses. It also ordered the Superior Court to issue a new order to deny the plaintiffs’ motion. The case was returned to the lower court for further proceedings, and the plaintiffs were ordered to pay the defendants’ costs on appeal.

Get help from an attorney at the Law Offices of Steven M. Sweat

If you have been seriously injured in an accident because of the negligence of another person or entity, you may have legal rights. It is important for you to understand all of the evidentiary and discovery rules. Getting help from an experienced personal injury attorney at the Law Offices of Steven M. Sweat might help you to avoid making mistakes in your case. Contact us today to schedule a free consultation so that you can learn about your potential claims and the rights that you might have.


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