California Supreme Court Declares that Exclusionary Rule for Failing to Comply with Expert Witness Disclosures Applies at the Summary Judgment Stage

In Perry v. Bakewell Hawthorne, LLC, 2017 No. S233096, the California Supreme Court held that when a trial court determines an expert opinion is inadmissible because expert disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised.

Plaintiff Mr. Perry sued defendants Bakewell Hawthorne, LLC and JP Morgan Chase Bank, NA, alleging personal injuries after plaintiff fell at a property owned by Bakewell and leased by Chase. Defendant Chase served plaintiff with a demand for the exchange of expert witness information. Plaintiff made no disclosure. Thereafter, the trial date was continued. Defendant Bakewell subsequently filed a motion for summary judgment. In opposition, plaintiff submitted declarations of two experts opining that the stairs on which plaintiff fell were in disrepair and failed to comply with building codes and industry standards.

The trial court sustained Bakewell’s objection to plaintiff’s expert declarations on the grounds that plaintiff failed to disclose the experts. The court granted defendant’s motion for summary judgment. Plaintiff ultimately appealed and the Court of Appeal affirmed the judgment for defendant. Plaintiff appealed to the California Supreme Court.

In support of his position, plaintiff predominantly relied on Kennedy v. Modesto City Hospital (1990) 221 Cal.App.3d 575. The court in Kennedy reversed a judgment for defendants, where plaintiff was precluded from opposing defendants’ summary judgment motion with a declaration from an expert not timely designated. In rendering its decision, the Kennedy court highlighted key timing distinctions between the permissible timeframes for making and hearing a summary judgment motion, and the timeframes for demanding and exchanging expert witness information. Kennedy recognized that these differences “would ordinarily preclude making and determining a motion for summary judgment after the . . . exchanges have been completed.” Furthermore, Kennedy emphasized that the expert witness disclosure statutes regarding the exclusion of expert testimony for noncomplying parties make reference to “expert trial witnesses,” evidence “at the trial,” and the “trial court.” As a result, the Kennedy court inferred that the Legislature intended to apply the exclusionary rules to trial—not pretrial proceedings.

Perry recognizes the requirement that declarations submitted on a summary judgment motion “shall set forth admissible evidence.” (Code Civ. Proc. § 437c(d).) The court noted that this requirement has “determinative importance.” Under the Code, a court may allow a party to amend its expert witness disclosure if the statutory conditions are satisfied. (See Code Civ. Proc. §§ 2034.610, 2034.620, 2034.710, 2034.720.) Unless the court grants relief to amend an expert witness disclosure, a declaration from an expert not timely disclosed is inadmissible, and “excludable upon objection if the failure to disclose was unreasonable.” A court must consider all evidence set forth in summary judgment papers, except that to which objections have been made and sustained. (Code Civ. Proc. § 437c(c).) In Perry, the California Supreme Court overruled Mann v. Cracchiolo (1985) 38 Cal.3d 18, which permitted the use of a declaration from an undisclosed expert at summary judgment pursuant to an earlier version of the summary judgment statute. Similarly, the court in Perry disapproved of the decision in Kennedy v. Modesto City Hospital.

The Perry decision is a crucial reminder that a party may not rely on an expert opinion at the summary judgment stage which will not be admissible at trial due to noncompliance with the expert disclosure statutes. If the time for exchanging experts has expired before a summary judgment motion is made, and a party objects to a declaration from an undisclosed expert, the admissibility of that expert’s opinion can and must be determined before the summary judgment motion is resolved. Perry highlights the fact that amendments to the summary judgment statute have significantly changed it from a drastic device to be used with caution, to a “particularly suitable” mechanism to test the sufficiency of a party’s case. The court expressly confirmed that this change was designed to liberalize the granting of summary judgment motions.

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February 27, 2017