California Court of Appeals, Third District, Butte
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court No. 143355 of Butte County, Barbara L. Roberts, Judge.
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Bohm Law Group, Lawrance A. Bohm, Bianca N. Saad; Law Offices of Joseph M. Earley III and Joseph M. Earley III for Plaintiff and Appellant.
Horvitz & Levy, Frederic D. Cohen; LaFollette Johnson, DeHaas, Fesler & Ames, Julie Clark Martin and Eric S. Boorstin for Defendant and Respondent.
Plaintiff Patrick Cottini appeals from a judgment entered in favor of Enloe Medical Center (Enloe) after the jury found one or more Enloe employees provided negligent care to Cottini, a dependent adult, while he was in Enloe’s care or custody, but no causation. The critical question we must resolve is whether or not the trial court, on the objection of a party who has made a complete but untimely compliance with the expert witness exchange requirements of Code of Civil Procedure section 2034.260,  has the authority to exclude from evidence expert testimony offered by a party who has completely and unreasonably failed to comply with these same requirements prior to the discovery cutoff date. We answer this question in the affirmative.
The relevant facts, as set forth in detail below, are the following. Neither Cottini nor Enloe disclosed information concerning its expert trial witnesses by the date specified in Enloe’s demand for exchange of this information. Rather than disclose his experts on this date, Cottini brought a motion to disqualify the law firm of LaFollette, Johnson, DeHaas, Fesler & Ames
(LaFollette Johnson) from representing Enloe. Based on Cottini’s refusal to disclose expert witness information to a law firm he claimed to be disqualified, Enloe offered to delay the exchange of this information until the trial court ruled on the disqualification motion. After the trial court denied the motion, Enloe made another demand for exchange of expert witness information. Receiving no response by the date specified in this second demand, Enloe unilaterally disclosed its expert witness information the following day. On the discovery cutoff date, Cottini still had not disclosed his expert witnesses. After an unsuccessful appeal to this court on the disqualification issue (see Cottini v. Enloe Medical Center (Nov. 5, 2010, C062904) [nonpub. opn.]), Cottini finally disclosed his expert witnesses and moved the trial court to reopen discovery, continue the trial, and grant him relief from the tardy disclosure. The trial court denied these motions and ultimately precluded Cottini from offering expert testimony.
On appeal, Cottini challenges these decisions. He also claims the trial court prejudicially erred “by giving the jury an instruction which closed the jury to considering causation of [his] harms based upon common knowledge.” We affirm the judgment. As we explain, the trial court did not abuse its discretion in concluding Cottini failed to demonstrate “exceptional circumstances” (§ 2034.710, subd. (b)) warranting his disclosure of expert witness information after the discovery cutoff date. It was also within the trial court’s discretion to conclude Cottini’s failure to submit this information was not “the result of mistake, inadvertence, surprise, or excusable neglect.” (§ 2034.720, subd. (c)(1).) Nor did the trial court abuse its discretion in excluding from evidence the testimony of Cottini’s expert witnesses. While section 2034.300, by its terms, did not mandate the exclusion of this testimony because Enloe’s compliance with the expert witness exchange requirements was untimely, we do not read this section to preclude the trial court from excluding expert witness testimony for an egregious violation of the exchange requirements unless the objecting party’s compliance was flawless. We conclude that where the party objecting to expert testimony under section 2034.300 would be entitled to mandatory exclusion of such testimony but for his or her own failure to timely comply with the expert witness exchange requirements, exclusion of the expert testimony is not mandatory, but discretionary. Based on the facts of this case, there was no abuse of discretion. Finally, we conclude any instructional error was harmless.
Cottini is a wheelchair athlete with incomplete quadriplegia who was brought to Enloe after sustaining a shoulder injury while training for the Paralympics. He sued Enloe for negligence and abuse of a dependent adult, claiming he suffered a severe pressure sore on his coccyx caused by the
failure of Enloe employees to regularly reposition him, he did not receive adequate bowel care, and he also suffered a traumatic injury to his scrotum. The trial date was set for August 17, 2009.
First Demand for Exchange of Expert Witness Information
On June 3, 2009, Enloe served Cottini with a demand for “simultaneous exchange of information concerning each party’s expert trial witnesses, ” specifying June 29, 2009, as the date for the exchange. Seven days later, Cottini’s attorney, Joseph M. Earley III, sent a letter to Enloe’s attorney, Julie Clark Martin, stating his belief her law firm, LaFollette Johnson, was disqualified from representing Enloe based on a conflict of interest and “object[ing] to any and all recent actions taken on behalf of Enloe by [her] firm.” A more complete description of the purported conflict can be found in Cottini v. Enloe Medical Center, supra, C062904. For our purposes, we note Earley claimed to have given confidential information concerning Cottini’s standard of care consultant to another attorney, Cameron Whitehead, prior to Whitehead’s employment with the LaFollette Johnson firm.
On June 17, 2009, Martin responded to Earley’s letter. She declined to withdraw from the case, concluding her firm was not disqualified from representing Enloe. According to Martin, while Earley mentioned the name of an expert “in passing” during a conversation with Whitehead concerning an unspecified case involving “a quadriplegic who contended that he developed a pressure ulcer due to the negligence of a defendant healthcare provider, ” disqualification was not required because (1) the disclosure of the name of Cottini’s expert did not create a de facto attorney-client relationship between Whitehead and Cottini, (2) no confidential information was shared with Whitehead, and (3) even if the name of the expert qualified as a confidential communication, this information would no longer be confidential in two weeks when the parties were scheduled to disclose their experts.
On June 25, 2009, Cottini served an “objection” to Enloe’s demand for exchange of expert witness information “based upon the conflict of interest.” Four days later, on the date scheduled for the exchange, Cottini brought a motion seeking an order disqualifying LaFollette Johnson, staying discovery, and continuing the trial. On July 2, 2009, Martin sent a letter to Earley asking him to reconsider the disqualification motion. With respect to the expert witness exchange, she stated: “Based on your objection to our Demand for Disclosure of Expert Witnesses, we likewise did not disclose. Assuming that the Court denies your Motion to Disqualify, I propose that we agree to disclose no later than 3 days from the hearing on that motion. Kindly advise by close of business on July 6, 2009, as to your decision in this regard.” Earley did not respond to this letter.
On July 15, 2009, the trial court denied the disqualification motion, concluding there was “not sufficient evidence to create an attorney-client relationship [between Whitehead and Cottini] nor enough of a disclosure to outweigh the right of [Enloe] to choose to have an attorney of their choice represent them.” This ruling was made without prejudice to allow Earley to “bring forward another declaration that would be considered in camera.” The trial court also denied Cottini’s request to stay discovery and continue the trial.
Second Demand for Exchange of Expert Witness Information
On July 16, 2009, Martin sent a letter to Earley stating: “We are now 30 days before trial, and you have unilaterally determined to not disclose expert witnesses, and further, you have refused to engage in any type of communication with me or my office to select a mutually agreeable date or time to accomplish this. Please be advised that we demand that experts be disclosed no later than Monday, July 20, 2009. [¶]... [¶] Should you fail to disclose your expert witnesses on that date, we will file a motion with the court to exclude your experts from testifying at time of trial. I remain ready and willing to discuss this further should you feel that our position is not well taken.” Earley did not respond in writing, but did state by phone he believed the trial court “was wrong in its ruling” and he would “bring the motion again.”
On July 21, 2009, having received no expert disclosure from Cottini the previous day, Enloe unilaterally disclosed its expert witnesses. This disclosure consisted of one retained expert (registered nurse Sue Altamirano) and 37 non-retained experts. Seven days later, Cottini served a “further objection” to Enloe’s demand for exchange of expert witness information, again “based upon the conflict of interest.” When the discovery cutoff date for expert witnesses arrived on August 3, 2009, Cottini still had not disclosed his expert witnesses. Nor did he attempt to depose Enloe’s experts prior to this date.
On August 7, 2009, renewing the disqualification motion, Cottini filed an application for in camera review of two supplemental declarations prepared by Earley, which was granted. After reviewing the supplemental declarations in camera, the trial court again denied the disqualification motion, ruling there was “no material and confidential information” disclosed to Whitehead. Cottini appealed and obtained an order from the trial court staying the proceedings pending resolution of the appeal.
On November 5, 2010, this court issued an opinion affirming the trial court’s denial of Cottini’s disqualification motion. (Cottini v. Enloe Medical Center, supra, C062904.) Following issuance of the remittitur, the trial court set the new trial date for February 28, 2011.
Post-appeal Discovery Attempts
On January 6, 2011, Cottini disclosed his expert trial witnesses. The disclosure consisted of four retained experts (Charles Mahla, Ph.D., James Randy Mervis, M.D., Stephen D. Feinberg, M.D., and registered nurse Betty Lyons) and 49 non-retained experts. The following week, Cottini served various notices demanding (1) to depose Enloe’s retained expert on January 25, 2011, (2) to depose seven members of Enloe’s nursing staff between February 16 and 21, 2011, and (3) to inspect Enloe’s facility on February 16, 2011.
On January 19, 2011, Enloe filed a motion seeking a protective order quashing the deposition notices, preventing the inspection, and striking Cottini’s expert witness disclosure. In response, Cottini withdrew the deposition notices, urged the trial court to deny Enloe’s motion for protective order as moot, and notified the court he would be filing a motion “for a brief trial continuance, to reopen discovery and for order regarding late served disclosures.” The trial court ruled: “Right now, no depositions are scheduled or noticed, so there’s no need for a protective order. There has been a purported expert disclosure. Now, whether or not that disclosure was proper or not to permit the witnesses to testify would be an issue left until the time of trial, when it is called.”
Motion to Reopen Discovery
On January 25, 2011, Cottini filed the promised motion to reopen discovery, arguing: “Neither defendant nor plaintiff timely served expert disclosures pursuant to [section] 2034, et seq. [¶] The legal consequence of any party not timely serving an expert disclosure is that such party lacks standing to object to any other party’s incomplete or untimely disclosure. Therefore, if all parties fail to timely serve disclosures (as in this case) the trial may commence without the ability to preclude improper expert testimony. This does not lead to an efficient trial. [¶] In order to avoid unnecessary motions regarding experts and other necessary discovery, justice will be better served by reopening discovery based upon a trial date a few months from the February 28, 2011 date, (which was only set a few weeks ago) and allowing plaintiff to serve a tardy expert disclosure. Only then will the parties be in a
position to enter into meaningful settlement discussions or, alternatively, to advocate for their respective clients. Otherwise, both parties cannot receive a fair hearing of their cases at trial.” With respect to his compliance with section 2034.710, allowing the trial court to grant leave to submit a late expert witness disclosure after the time limit for the completion of discovery only “[u]nder exceptional circumstances” (§ 2034.710, subd. (b)), Cottini argued that because “there was a genuine concern regarding disqualification of defense counsel, ” he “objected to the expert disclosure demand served by defendant, ” and as a result, “both parties failed to timely disclose experts.” Cottini further argued he “immediately” served his expert witness disclosure following the remittitur and his “retained experts have been available for deposition since that time.”
Two days later, Enloe filed an opposition to the motion. With respect to continuing the trial, Enloe argued Cottini did not make “the requisite showing of ‘good cause, ’ ” explaining: “Plaintiff had more than a reasonable opportunity to conduct discovery and prepare for trial prior to the original trial date. However, he made a deliberate, tactical decision to not engage in discovery but, rather, pursued meritless motions and appeals to disqualify [Martin]. He should not be entitled to capitalize on his gamesmanship in order to obtain yet another unwarranted continuance of trial of this matter.” With respect to reopening discovery, Enloe argued Cottini “showed no interest” in taking depositions of Enloe staff “prior to close of discovery, or at any time prior to the original trial date, ” despite the fact Cottini properly noticed depositions of several staff members on May 14, 2009, and Enloe “attempted to arrange these depositions.” Enloe also pointed out Cottini never “serve[d] a notice of deposition for any of the individuals listed in the [expert witness] disclosure” prior to the close of expert witness discovery and never “requested an inspection of [Enloe’s] premises prior to the close of discovery.” Finally, with respect to Cottini’s request to allow the late expert witness disclosure, Enloe argued: “Plaintiff should not now be entitled to claim defendant’s disclosure was ‘untimely, ’ as any delay in the defendant’s disclosure was an outcome produced by his ...