Richaud v. Jennings

In Richaud v. Jennings (1993) 16 Cal.App.4th 81, trial of a medical malpractice action was initially set for August 26, 1991. The plaintiff timely identified three expert witnesses in response to a demand for exchange of expert witness information. After the initial expert discovery cut-off date, plaintiff learned that one of her experts would be unavailable and notified opposing counsel. Thereafter the court continued the trial to October 15, 1991. Upon a request for clarification from the plaintiff as to the effect of the continuance on the expert witness discovery cut-off, the trial court issued a "corrected minute order," which stated, "All discovery is closed except experts who are allowed to be designated late, if any." On October 4, the plaintiff served the defendants with a "supplemental designation of expert witnesses" in which she designated Dr. Patrick Zaccalini as an expert witness at trial. On October 16, the defendant made a motion in limine to exclude from trial any expert testimony by Zaccalini because the plaintiff had not obtained a court order permitting her to augment her list of expert witnesses. ( Richaud, supra, 16 Cal.App.4th at pp. 83-85.) The trial court granted the motion. ( Id. at p. 91.) The appellate court affirmed, reasoning, "in order to use Dr. Zaccalini as an expert, the plaintiff must move to augment her expert witness list under . . . section 2034, subdivision (k). The trial judge found no subdivision (k) motion had been made. However, making such a motion was never precluded. The trial judge cannot be faulted for failing to do what he wasn't asked to do. Under the circumstances of this case, the plaintiff did not pursue the course of action that might have provided her with relief. As we have discussed, a replacement expert should not be permitted to testify, over objection, when the party seeking to call the replacement expert has failed to move to augment that party's expert witness list to include the replacement expert." ( Id. at pp. 91-92.) The court in Richaud explained that a motion to augment "would have called upon the trial judge to exercise his discretion under the statute." ( Id. at p. 91.)