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,
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
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
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 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 nonretained 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 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 nonretained 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."
On January 25, 2011, Cottini filed the promised motion to reopen discovery, arguing: "
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 own efforts to thwart the original trial from going forward. In addition, plaintiff should be precluded from introducing into evidence expert opinion testimony from any of his four retained experts, or any of the
On January 28, 2011, at the hearing on the motion, after the parties argued their respective positions, the following exchange occurred between the trial court and Cottini's trial counsel:
Earley then argued it would have made "no sense" to disclose experts to a firm he believed to be disqualified, and continued: "We said, look, there's a conflict, so we didn't disclose on that date. Neither did they. They didn't for three weeks later, or — it doesn't matter whether it's three weeks or it's a year and a half, because it's still late. What we did was, and what we're doing right now is we're asking for relief for that late filing. They've never done that, and they have to do that. They're in a position where they're late filed, we're late filed. I'm not trying to claim we're not late filed. I'm seeking relief for it today because we didn't have any time to do that before. Now we do.
Denying the motion, the trial court explained: "[I]n light of your inability to answer my question as to why in the world you wouldn't [disclose], and your answer to that was, well, they knew it anyway, makes it even more preposterous .... The Court is going to find that there's no grounds for late disclosure of expert witnesses, and because there's no grounds for disclosure of late expert witnesses, the Court is going to deny the motion to continue the trial and the Court is going to deny the motion to reopen discovery."
On February 3, 2011, Cottini filed a motion in limine seeking to preclude Enloe from objecting to the expert testimony of his late-disclosed expert witnesses. Relying on West Hills Hospital v. Superior Court (1979) 98 Cal.App.3d 656 [159 Cal.Rptr. 645] (West Hills), Cottini renewed his argument that since "[n]either defendant nor plaintiff served their disclosures `on or before the date of exchange specified in the demand'" (italics added), as required by section 2034.260, subdivision (a), "neither [has] legal standing to object to the other's expert witness disclosure or seek preclusion of the other's expert witness testimony on the basis of being late." Enloe opposed the motion and filed its own motion in limine seeking to preclude Cottini from presenting expert testimony at trial. Enloe argued it "reasonably complied with [section] 2034.260 by attempting to `meet and confer' on the issue of expert disclosure several times after plaintiff expressly indicated that he would not participate in expert disclosure with the defendant, and ultimately by disclosing experts in late July of 2009." Accordingly, argued Enloe, it was "entirely within its rights to object to plaintiff's disclosure of expert witnesses more than one and one half years after the original date for the production of such experts," and Cottini's unreasonable failure to comply with the expert exchange requirements warranted mandatory exclusion of Cottini's experts under section 2034.300.
On February 22, 2011, the trial court ruled: "Neither party has standing to object to expert witness [t]estimony." Two days later, Enloe filed a motion to continue the trial, which was granted. A new trial date was set for May 9, 2011.
On May 6, 2011, Enloe renewed its motion in limine to preclude Cottini from offering expert testimony at trial. On May 9, 2011, the trial court
On May 12, 2011, at the close of the second day of trial, Enloe objected to the anticipated testimony of Phillip Filbrandt, M.D., a nonretained expert disclosed by Cottini after the cutoff date for expert discovery, who was scheduled to testify the following day. Martin argued: "The problem is, and I understand what the court was thinking, but the court only had half the analysis. The court also did not bring in these equitable principles that are so important and in play here because there was a late disclosure — first of all, the second half of the analysis is that there needs to be mutual disclosure. That clearly did not happen nor was it ever going to happen in this case. The second part of the analysis, of course, is the fact that but for counsel's conduct, I would have been on time disclosing those experts. It's like somebody [helping] you back into a parking space and telling you, `You got room,' and sticking their foot under your tire and suing you for negligence because you ran over their foot. [¶] In reliance, he made me late. He induced me. In my effort to try to arrange what we were supposed to do as officers of the court, arrange for mutual exchange, trying to work out something I thought was a legitimate beef, he had a motion pending to recuse me. I don't think that my client should be penalized. [¶] Moreover, there's a whole lot of prejudice going on here, your Honor. I now am looking at doing a cross-examination of an expert that as of what, February or January, I believed he couldn't use because he was not allowed to disclose. So then I don't learn until February that maybe there's a possibility he will be able to bring in experts. In the meantime, by golly, discovery is closed."
The trial court then addressed Martin: "I have to tell you that my gut tells me that you are correct. I think there's been terrible gamesmanship in this case. I have seen it from the beginning all the way through half an hour ago. So my gut tells me you are correct, that you have done things that are proper and [Earley] did not. My gut tells me he should not be allowed to call those witnesses. That's what my gut tells me, but my legal research tells me that you do not have standing to bring that objection." After further argument between the trial court and Cottini's counsel concerning the reason he did not disclose the expert information until after the remittitur, he conceded "there wouldn't have been any harm" in disclosing on the date set forth in Enloe's demand for exchange of expert witness information. The trial court found "bad faith" on the part of Earley for failing to disclose on that date and took the matter under submission.
The following morning, the trial court ruled Cottini would not be allowed to present expert testimony from his late-disclosed expert witnesses "based on the equities," explaining: "[T]he late disclosure by each side had an incredibly different effect. When [Martin] provided late disclosure, it was when discovery was still open; and her late disclosure didn't harm anyone equitably, because [Earley] could have taken any deposition [he] wanted at any time." However, the trial court continued, "[Martin] couldn't take depositions because, by the time [Cottini's] disclosure was made, discovery had already been cut off. [¶] Now, I understand that [Earley] magnanimously offered to reopen discovery; but reopening discovery is an entirely different concept than allowing depositions to be taken. Reopening discovery opens up everything. And it's not appropriate for [Martin], who has prepared her case all along, to agree to reopen discovery for all purposes." Turning to the standing issue, the trial court explained that, because Enloe's expert witness disclosure was not timely, it could not demand the remedy of "mandatory exclusion" of Cottini's expert witnesses under section 2034.300. But the trial court did not read this provision to limit its equitable power to exclude Cottini's experts, and concluded: "[A]s I explained earlier, the Court's equitable powers causes
After the ruling, Cottini's cocounsel asked to be allowed to proceed with Cottini's case "through the designated experts of the Defense." The trial court allowed trial to proceed on this basis. For present purposes, we need not recount the details of the trial. We do note Enloe filed a motion for nonsuit based on Cottini's lack of expert testimony on standard of care, breach, and causation. Denying the motion, the trial court stated: "The court is aware that this was a very close call, that really I'm amazed at counsel's ability to have cobbled together the case that he has been able to cobble together with the trial court's prior rulings, but it is a very disfavored motion, and it really is the intent that cases that are not absolutely without merit should go in front of a jury in a close call. The motion should be denied."
Thereafter, the trial court instructed the jury on Cottini's medical negligence and neglect of a dependent adult causes of action. However, the verdict form addressed only whether Enloe was liable under Cottini's neglect of a dependent adult cause of action. The jury was not asked to resolve the medical negligence cause of action. The jury found (1) "[Cottini was] a dependent adult while in Enloe Medical Center's care or custody"; (2) "[Cottini was] in Enloe Medical Center's care or custody"; and (3) "one or more of Enloe Medical Center's employees fail[ed] to use that degree of care that a reasonable person in the same situation would have used in assisting in personal hygiene, provision of medical care, or health and safety hazards"; but (4) "the employee's conduct [was not] a substantial factor in causing harm to [Cottini]." Judgment was entered in favor of Enloe. Cottini appeals.
"The statutes governing expert witness discovery are part of the Civil Discovery Act (§ 2016.010 et seq.). The purposes of the discovery statutes are `to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.' [Citation.]" (Boston v. Penny
Section 2034.210 provides: "After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other's expert trial witnesses to the following extent: [¶] (a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. [¶] (b) If any expert designated by a party under subdivision (a) 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 the 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 under Section 2034.260. [¶] (c) Any party may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert described in subdivision (b) in the course of preparing that expert's opinion."
"The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange." (§ 2034.230, subd. (b).)
Section 2034.250 provides in relevant part: "(a) A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order.... [¶] (b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following directions: [¶] (1) That the demand be quashed
Section 2034.260 provides: "(a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of exchange. [¶] (b) The exchange of expert witness information shall include either of the following: [¶] (1) A list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial. [¶] (2) A statement that the party does not presently intend to offer the testimony of any expert witness. [¶] (c) If any witness on the list is an expert as described in subdivision (b) of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain: [¶] (1) A brief narrative statement of the qualifications of each expert. [¶] (2) A brief narrative statement of the general substance of the testimony that the expert is expected to give. [¶] (3) A representation that the expert has agreed to testify at the trial. [¶] (4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. [¶] (5) A statement of the expert's hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney."
This brings us to the crucial statutory provisions at issue in this case. Section 2034.300 provides that, with certain exceptions, "on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] (c) Produce reports and writings of expert witnesses under Section 2034.270. [¶] (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410)." (Italics added.)
Cottini contends the trial court prejudicially erred in denying his motion to reopen discovery, continue the trial, and allow late submission of expert witness information. We disagree.
The trial court's decision to deny each of these requests is subject to review for abuse of discretion. (See Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531 [140 Cal.Rptr.3d 281] [motion to reopen discovery subject to abuse of discretion standard of review]; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395 [16 Cal.Rptr.3d 638]
Denying Cottini's motion, the trial court stated: "[I]n light of your inability to answer my question as to why in the world you wouldn't [disclose], and your answer to that was, well, they knew it anyway, makes it even more preposterous .... The Court is going to find that there's no grounds for late disclosure of expert witnesses, and because there's no grounds for disclosure of late expert witnesses, the Court is going to deny the motion to continue the trial and the Court is going to deny the motion to reopen discovery." Implicit in this statement is a finding no "exceptional circumstances" justified Cottini's filing of the motion to allow late submission of expert witness information after the close of discovery. (§ 2034.710, subd. (b).) Based on the
Finally, in light of the foregoing implied findings, section 2034.720 mandated denial of Cottini's motion to allow late submission of expert witness information. As mentioned, this section provides: "The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied: [¶] (a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses. [¶] (b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits. [¶] (c) The court has determined that the moving party did all of the following: [¶] (1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. [¶] (2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. [¶] (3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action. [¶] (d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion." (Italics added.)
We conclude the trial court did not abuse its discretion in denying Cottini's motion to reopen discovery, continue the trial, and allow late submission of expert witness information.
Cottini also claims the trial court prejudicially erred in excluding from evidence the testimony of his expert witnesses as a remedy for his failure to comply with the expert witness exchange requirements prior to the cutoff date for expert discovery. He is mistaken.
Section 2034.300 provides that, with certain exceptions, "on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section
Accordingly, relying on West Hills, supra, 98 Cal.App.3d 656, Cottini argues Enloe's late disclosure of its expert witnesses results in a lack of standing to object to the testimony of Cottini's expert witnesses. Such reliance is misplaced. In West Hills, a medical malpractice case brought by the plaintiff against West Hills Hospital and two doctors, the defendant doctors addressed a demand for expert witness information to the plaintiff and, while the demand was not addressed to the defendant hospital, in addition to serving the plaintiff, the demand was also served on counsel for the hospital. (Id. at p. 657.) The hospital did not serve a list of experts on any party. Because of this, the plaintiff successfully moved to prevent the hospital from calling any expert witnesses at trial. (Id. at p. 658.) The Court of Appeal issued a writ of mandate directing the trial court to vacate its order granting the plaintiff's motion to exclude the expert testimony. (Id. at p. 661.) The court framed the issue as "whether, by serving an informational copy of the Demand on petitioner, [the defendant doctors] also created rights and duties as between petitioner and real party." (Id. at p. 659.) Answering this question in the negative, the court held "only the party who makes the demand and the
The court then stated: "Petitioner's second contention regarding real party's standing is also well taken. [Former section] 2037.5 requires first that the party seeking sanctions be in compliance with [former] section 2037.2. Real party had filed his list of experts after the date of exchange ([former] § 2037.1) and therefore was not, strictly speaking, in compliance with [former] section 2037.2. Furthermore, even if petitioner had been required to serve a list of its experts, pursuant to [former] section 2037.2, subdivision (a)(3), the only party on whom it would have been required to serve its list was the party who served the Demand on it — in other words, [the defendant doctors], and pursuant to [former] section 2037.5, only [the defendant doctors] would have had standing to object to petitioner's calling its expert witnesses." (West Hills, supra, 98 Cal.App.3d at p. 660.)
While not directly on point, we find Castaline v. City of Los Angeles (1975) 47 Cal.App.3d 580 [121 Cal.Rptr. 786] to be instructive. There, in a personal injury case, the trial court excluded the testimony of a doctor who examined the plaintiff three days before trial. Finding no error, the Court of Appeal explained: "While we doubt that California Rules of Court, [former] rule 222,
Here, Cottini refused to disclose his expert witness information on the date specified in Enloe's demand for exchange of this information. Instead, he filed a motion to disqualify Enloe's trial counsel. Because the discovery statutes provide for "mutual and simultaneous exchange" of expert witness information (§ 2034.210, subd. (a)), Enloe also did not disclose its experts on this date and attempted to negotiate an alternative date for the exchange. When that failed, Enloe served a second demand for exchange of expert witness information. Cottini again refused to disclose his expert witnesses. Enloe then unilaterally disclosed. This disclosure, while late, was made before the close of expert witness discovery. Cottini does not argue he would not have had sufficient time to depose Enloe's experts had he been pursuing discovery rather than his meritless disqualification motion. Cottini's disclosure, on the other hand, was made after the close of expert witness discovery, providing no opportunity for Enloe to depose Cottini's experts. In this case where the importance of discovery of experts is manifest, allowing Cottini's expert witnesses to testify without any ability for Enloe to depose these witnesses would be the essence of unfair surprise. (See Zellerino v. Brown, supra, 235 Cal.App.3d at p. 1109.) The trial court had inherent authority to exclude the testimony of Cottini's expert witnesses and did not abuse its discretion in exercising this authority based on the facts of this case.
Here, assuming Enloe's renewed motion to exclude expert witness testimony was an impermissible motion for reconsideration, the trial court effectively informed the parties it was reconsidering its prior ruling on May 9, 2011, when it stated it was "inclined to go ahead and allow the experts," but also indicated it would entertain argument on the issue. The next day, the trial court again reserved ruling on the renewed motion and again stated it would entertain argument on the issue. Two days later, the parties argued the issue. On May 13, 2011, the trial court issued its ruling excluding the expert testimony. Based on these circumstances, we conclude the trial court gave Cottini an adequate opportunity to be heard. Nor has Cottini demonstrated any likelihood the trial court would have reached a different conclusion had it provided him more time to litigate the issue. Any error was harmless.
The judgment is affirmed. Costs on appeal are awarded to Enloe Medical Center. (Cal. Rules of Court, rule 8.278(a).)
Raye, P. J., and Hull, J., concurred.
Former section 2037.5 provided: "Except as provided in Section 2037.6, upon objection of a party who has served his [or her] list of witnesses in compliance with Section 2037.2, no party required to serve a list of expert witnesses on the objecting party may call an expert witness to testify, except for purposes of impeachment, unless the information required by Section 2037.3 for such witness is included in the list served." (Stats. 1978, ch. 1069, § 1, p. 3286.)
