The Bar Association of San Francisco The Construction Section of the Barristers Club June 6, 2018 I. Speakers (full bios attached) Clark Thiel Partner Pillsbury Winthrop Shaw Pittman LLP Sarah Peterman Bell Partner Farella Braun + Martel LLP David R. Bones Vice President The Kenrich Group LLC 1
II. Legal Outline Expert Discovery and Admissibility in California and Federal Courts 1. California Procedure: a. Disclosure of Expert Witnesses and Materials: CCP 2034.010 et seq. i. Allows either party to make a demand to exchange expert witnesses and expert materials. ii. Serving a demand requires reciprocal exchange of expert material. iii. Once demand is served by any party, all parties must comply. CCP 2034.260(a). iv. Demand must be made no later than 10 days after the initial trial date has been set, or 70 days before the trial date, whichever is later. CCP 2034.220. v. Demand must state date when simultaneous exchange of expert material is to take place. Date must be either 20 days after service of demand or 50 days before trial, whichever date is later. CCP 2034.230(b). 1. But court may allow early discovery of expert witnesses where good cause shown. See Hernandez v. Sup. Ct., 112 Cal. App. 4 th 285, 297 (2003). a. Good cause may exist where disclosure is necessary to prepare claim or defense; or b. Where expert testimony is used in summary judgment motion and legitimate questions exist regarding the foundation of the expert s opinion. vi. Requirements of demand: 1. Demand must be made in writing. CCP 2034.230(a). 2. Demand must state that it is being made under Chapter 18 of the Civil Discovery Act. CCP 2034.230(a). 3. Demand must specify date for exchange. 4. Demand must be served on all parties who have appeared. CCP 2034.240. 5. Demand may also include demand for expert reports and writings. CCP 2034.210(c). vii. What Must be Disclosed: 1. Parties must produce list (name and address) of each expert whose testimony is expected to be presented at trial, or a statement that no expert is expected to be called. CCP 2034.260(b). 2. For each expert on the list that is either (a) a party or an employee of a party; or (b) an expert retained by a party for the purpose of testifying in anticipation of litigation, the party must include a declaration of the expert, which must include: a. Brief narrative statement of expert qualifications; b. Brief narrative statement of the general substance of the testimony that the expert is expected to give; c. Representation that expert has agreed to testify at the trial; 2
d. Representation that expert will be prepared for a deposition; and e. Statement of the expert s fees. CCP 2034.260(c). 3. If demand also asked for expert reports and writings, parties must include all discoverable reports and writings. CCP 2034.270. 4. This generally includes all draft reports. See Beck v. Hirchag, No. G041955, 2011 WL 1362016, at *7 (Cal. Ct. App. Apr. 11, 2011). 5. See also National Steel Prods. Co. v Superior Court, 164 Cal App. 3d 476, 489 (1985). b. Standard for Admissibility of Expert Testimony: i. Standard is set forth in Sargon Enterprises, Inc. v. Univ. of S. Cal., 55 Cal. 4th 747, (2012); Cal. Evid. Code 801-802. 1. Court, similarly to Daubert standard (which was cited with approval in Sargon), acts as gatekeeper. 2. Court may inquire into the reasons for the expert s opinions in deciding whether to admit the testimony. 3. Court must determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. Sargon, 55 Cal. 4th at 772. 4. [U]nder Evidence Code sections [801(b)], and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative. Id. at 771 72. 3
2. Federal Procedure: a. Disclosure of Expert Witnesses and Materials: FRCP 26. i. Court establishes timeline for expert disclosures. FRCP 26(2)(D). 1. But at minimum, absent a stipulation or court order, disclosures must be made at least 90 days before trial. 2. Rebuttal expert reports must be made within 30 days after the opposing party s expert disclosure. ii. Parties must disclose identity of all witnesses it may use at trial to provide expert testimony. FRCP 26(2)(A). iii. Experts generally must prepare written report. FRCP 26(2)(B). iv. Expert report must include the following: 1. Complete statement of opinions the expert witness will express including the basis and reasons for them. 2. The facts and data considered by the expert in forming opinions 3. Any exhibits that will be used to summarize or support them. 4. The witnesses qualifications, including a list of all publications authored in the previous 10 years 5. A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and 6. A statement of the compensation to be paid to the expert for the report and testimony. FRCP 26(2)(B). v. Federal rules protect disclosure of communications between attorney and expert witnesses. FRCP 26(4)(c). Unless a party can show that it has substantial need for materials and cannot obtain them by other means, all communications between expert witness and attorney are protected from disclosure except communications that: 1. Relate to compensation of the expert 2. Identify facts/data that the expert considered in forming opinions 3. Identify assumptions that the expert relied on in forming opinions. FRCP 26(3)(A)(ii); FRCP 26(4)(B). vi. Expert s draft reports are protected from disclosure. FRCP 26(b)(4)(B). vii. But other expert materials still discoverable. See Republic of Ecuador v. Mackay, 742 F.3d 860 (9th Cir. 2014). b. Standard for Admissibility of Expert Testimony: i. Standard set forth in Federal Rules of Evidence 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 1. FRE 702: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a. the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b. the testimony is based on sufficient facts or data; 4
c. the testimony is the product of reliable principles and methods; and d. the expert has reliably applied the principles and methods to the facts of the case. 2. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993): Held that courts must act as gatekeepers to ensure reliability of expert testimony. Federal Rule of Evidence 702 was amended to conform to the standard set forth in Daubert. 3. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999): Held that the standard set forth in Daubert applies to all expert testimony, not just scientific expert testimony. 5