Boston v. Penny Lane Centers, Inc

In Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, in response to the defendant's demand, the plaintiff timely submitted her expert witness designation of two physician experts and their declarations ( 2034.210, subd. (c), 2034.230, subd. (b), 2034.260). (Boston v. Penny Lane Centers, Inc., supra, 170 Cal.App.4th at p. 953.) The defendant chose not to depose the plaintiff's experts and not to designate any experts for its case. No reports by the plaintiff's experts existed at that time, but she submitted each report the day she received them. The time of submission was slightly over a month after the statutory due date, but at least a week before the final pretrial conference on the Friday before the Monday when the trial was to begin. (Id. at p. 949.) The defendant did not dispute that the reports were not in existence as of the due date. However, the defendant filed a motion in limine to exclude the reports and the associated expert testimony on the basis that the plaintiff had failed to produce the reports within the time required by statute. At the hearing on the motion, however, the trial court found that the plaintiff's submission of the reports was untimely, but it was reasonable, in that the plaintiff submitted them as soon as she received them. The trial court ordered the plaintiff to make her experts available for deposition during the intervening weekend before the start of trial. The defendant did not depose either expert. At trial, both experts offered their opinions based upon the reports. (Ibid.) The Boston court affirmed the trial court's admission of the late-filed expert reports under the specific facts of the case. The court included the caveat that "we do not suggest that a party's conduct with regard to production of expert reports and writings is necessarily reasonable as long as the opposing party is given an opportunity to depose the expert. Rather, the opportunity for meaningful deposition is one of the circumstances the trial court should consider when making the reasonableness determination." (Boston v. Penny Lane Centers, Inc., supra, 170 Cal.App.4th at p. 954.) The Boston court emphasized the responsibility a party has to comply with the expert witness evidence statutory scheme, including its timeliness requirements. The court stated that section 2034.300 "empowers the court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to produce expert reports and writings as required by section 2034.270. ( 2034.300, subd. (c).) . . . A party who fails to instruct its expert to create all reports and writings before the specified date does so at its own risk." (Boston, supra, at p. 952.) The Court interpreted Code of Civil Procedure section 2034.300 as allowing the trial court to exercise its discretion to exclude expert opinion, when the party offering it "has unreasonably failed to produce expert reports and writings." (Boston, supra, at p. 952, citing 2034.270, 2034.300, subd. (c).) "If the trial court concludes that a party intentionally manipulated the discovery process to ensure that expert reports and writings were not created until after the specified date, it may find the failure to produce the reports and writings was unreasonable and exclude the expert's opinions. Accordingly, a party who fails to instruct its expert to create all reports and writings before the specified date does so at its own risk." (Boston, supra, at p. 952.) Also, "the behavior of the party seeking to exclude the expert testimony is relevant to the reasonableness inquiry. If any unfairness arising from the proffering party's late or incomplete disclosure was exacerbated by the party seeking exclusion, the court is less likely to find the conduct of the party offering the expert to be unreasonable." (Boston, supra, 170 Cal.App.4th 936, 954.) "The opportunity for meaningful deposition is one of the circumstances the trial court should consider when making the reasonableness determination." (Ibid.)