When litigation involves expert witnesses, perhaps no distinction has proven itself more confusing than the California Code of Civil Procedure (C.C.P.) policy regarding retained versus non-retained expert witnesses.
Practitioners in California must be aware of which category their own (and their opponents’) experts should fall into, and litigators must also know how to challenge and handle each type of witness.
This article examines the C.C.P. and provides guidance for attorneys in dealing with both types of experts and differentiating between the two.
A.) Definitional Distinctions:
As an initial matter, it is important for attorneys to know how to treat and classify an expert witness.
According to California statute and case law, a retained expert is a witness who was hired for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action. Easterby v. Clark, 171 Cal. App. 4th 772 (2009).
A non-retained expert, in contrast, had a different type of initial interaction with a party.
Non-retained experts are not sought out with the intention of engaging them to provide opinions in anticipation of trial. Instead, non-retained experts are hired for entirely different reasons.
For example, perhaps the most common type of non-retained expert is the healthcare professional. Individuals often seek treatment after being injured and those injuries will sometimes become the subject of lawsuits.
While the physician, whom a party sought for the purpose of treatment, may have relevant observations and perceptions to discuss as an expert, once the litigation is underway, the physician is not considered to be a retained expert.
The rationale for this distinction is that the physician was sought out for the purpose of treatment, but not in anticipation of, or for the purpose of, participating in litigation.
Although that physician might later become involved as a witness in litigation, their status does not change to that of a retained expert witness.
B.) Distinctions in Disclosure:
One issue that attorneys routinely face is what information must be provided to opposing counsel about the expert witnesses that each attorney plans to rely upon during the course of litigation.
The requirements for the nature and type of information that must be disclosed for experts in California is very much contingent on whether those experts are retained or not.
For example, the C.C.P. lists a number of specific disclosure requirements that pertain to expert witnesses in Section 2034.210 et seq, but those requirements only apply to retained experts.
Ultimately, the C.C.P. and California court decisions make it clear that the intent behind such laws is to require only the most minimal disclosures when attorneys are dealing with non-retained experts. See, e.g., Barbara Haubrich-Hass, Differences Between Retained and Non-Retained Expert Witnesses, The California Litigator, Jul. 6, 2011.
The reason that non-retained experts are not subject to the same rigorous disclosure requirement is because such disclosure might result in a violation of the work-product doctrine.
As the California Supreme Court explains: Because a percipient expert is not given information by the employing party, but acquires it from personal observation, the current statute treats him or her as a fact witness. Requiring an attorney to analyze such a witness’s anticipated testimony and subject the analysis to the opponent would invade the absolute protection given by the work product doctrine to the thought processes of an attorney in preparation for trial. Hurtado v. Western Medical Center, 222 Cal. App. 3d 1198, 1203 (1990).
C.) Challenging Expert Testimony and Designations:
Much litigation is based upon one party’s claim that its opponent incorrectly designated an expert witness.
In addition, some legal strategies are available to attorneys, depending upon what type of expert witness they are dealing with.
Attorneys often mistakenly treat a witness as a non-retained expert when the C.C.P. requires a different approach.
As one legal analyst explains:
A common error… is for counsel to list a party, or an employee of a party, as a non-retained expert witness, and not include a declaration in compliance with §2034.260. C.C.P. §2034.210(b) specifically states that “If an expert designated by a party is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration.” Haubrich-Hass, supra.
For the purposes of expert designations, although a witness may otherwise appear to be a percipient witness (and, therefore, a non-retained expert) if the witness is a party or an employee of a party, they must be designated and disclosed in the same manner as a retained witness.
Failing to make such disclosures may ultimately mean that the witness’s testimony be excluded by a court.
The California courts are very amenable to challenges made by attorneys to exclude certain expert evidence because of a mischaracterization of an expert’s status.
Just as the courts attempt to protect the work-product principle by not requiring substantial pre-trial disclosures of a non-retained expert, they also try to safeguard opposing counsels’ rights to preparation and effective cross examination by asking for more detailed and diligent disclosure when a retained expert is involved.
California functionally treats a non-retained expert as a fact witness, and it allows the testimony of such experts based on the idea that such witnesses have valid and useful observations to assist fact-finders. See, e.g., Abbott et al., Percipient Witnesses Distinguished, California Civil Discovery Practice, 4th Ed., § 11.4 (2014).
However, non-retained experts should not be offering testimony that falls outside the realm of their percipient work. See Brian D. Chase, Expert Witnesses and Motions in Limine, Consumer Attorneys of California Forum, 2002.
In the event that non-retained experts begin to testify as though they are retained experts, attorneys may challenge such testimony on the grounds that non-retained experts are only permitted to testify to facts or opinions gathered during the course of their work, not about opinions formed in anticipation of litigation, such as causation or any other matter that would fall outside of the ordinary scope of their work and relationship with the party they are testifying for. See, e.g, Haubrich-Hass; see Chase.
California’s statutes and case law make it clear that the distinctions between retained and non-retained experts are of great significance in how expert witnesses should be treated.
Accordingly, attorneys should take care in how they designate their own experts and be aware of any erroneous designations by opponents, since such mistakes may provide opportunities for shrewd lawyers to capitalize on.
By: Kat S. Hatziavramidis, Attorney-at-Law