Expert Opinion Inadmissible at Trial, Inadmissible at Summary Judgment: Calif.

An expert witness declaration must be excluded from consideration at summary judgment if a court determines that the expert opinion is inadmissible at trial because disclosure requirements were not met, and an objection to that expert opinion is raised, the Supreme Court of California has ruled.

In Perry v. Bakewell Hawthoorne, LLC, 2017 No. S233096, the plaintiff Wilson Dante Perry sued Bakewell Hawthorne, LLC and JP Morgan Chase Bank, NA, after he was injured in a fall on property owned by Bakewell and leased by Chase. Chase demanded an exchange of expert witness information. Perry made no disclosures.

Bakewell then moved for summary judgment, and Perry then submitted two expert witness declarations supporting his claims. Bakewell objected as Perry had failed to disclose the experts. The trial court agreed with Bakewell and granted summary judgment. Perry moved unsuccessfully for permission to designate his experts, and then appealed.

On appeal, Perry relied on Kennedy v. Modesto City Hospital (1990) 221 Cal.App.3d 575, where the Court of Appeal reversed a trial court that refused to consider the declaration of a plaintiff's expert who had not been timely designated.

The state Supreme Court rejected Perry's argument, finding that the Court of Appeal's analysis in Kennedy was flawed. The decision in Kennedy relied on references to "trial" in expert witness disclosure statutes, but it did not discuss the provision that a declaration submitted on a summary judgment motion must be "admissible evidence." The state Supreme Court found that this "admissible evidence" provision was determinative.

The state Supreme Court also noted Mann v. Cracchiolo (1985) 38 Cal. 3d 18, where the defendants argued that the expert's declaration had to be disregarded at summary judgment because the expert could not testify at trial. Like Kennedy, the Mann court reasoned that, because the trial court might choose to grant relief, the court ruling on the motions for summary judgment could not assume that the evidence was inadmissible.

The state Supreme Court rejected that reasoning as well. Even if the references to "trial" in the expert witness disclosure statutes are read strictly, the state Supreme Court found that they specify that the "trial court" must exclude the testimony of an undisclosed expert, and the summary judgment statute requires that the evidence provided in declarations be "admissible at trial."

The remedies available to a party who failed to designate an expert witness, as Mann and Kennedy referenced, are only available to a party before summary judgment, the state Supreme Court ruled.

The state Supreme Court noted that when Mann and Kennedy were decided, summary judgment was "much more disfavored that it is today," and that the  California Code of Civil Procedure § 437c was significantly changed by amendments in 1992 and 1993 that brought it closer to its federal counterpart. The Court overruled Mann and disapproved Kennedy:

When the time for exchanging expert witness information has expired before a summary judgment motion is made, and a party objects to a declaration from an undisclosed expert, the admissibility of the expert's opinion can and must be determined before the summary judgment motion is resolved.