Plaintiff Precluded from Offering Expert Testimony in Opposition to Summary Judgment where Plaintiff Failed to Timely Designate His Experts

In Perry v. Bakewell, (Filed 2/3/2016, No. B264027) the California Court of Appeal, Second District, held that Plaintiff’s expert witness declarations, filed in support of his opposition to defendant’s motion for summary judgment, were properly excluded as a result of Plaintiff’s failure to timely designate experts.

Plaintiff filed suit against defendant, Bakewell Hawthorne, LLC, after he tripped and fell while walking down a flight of stairs on defendant’s property. After a third-party defendant demanded the exchange of expert witness information, Bakewell designated experts timely, but Plaintiff failed to do so.

Bakewell moved for summary judgment on the ground that Plaintiff could not sustain his burden of proving the existence of a dangerous condition. Through the motion, Bakewell filed documentary evidence demonstrating its personnel performed regular inspections of the area, that Bakewell’s tenant, Chase Bank, also performed regular inspections of the area, that Bakewell’s insurer conducted annual inspections of the area, and that at no time prior to the incident was any dangerous condition reported to Bakewell.

In opposition, Plaintiff submitted declarations from two experts, who opined that the stairway was in a state of disrepair and in violation of the Los Angeles Building Code and applicable industry standards. Bakewell objected to and moved to strike the declarations on the ground that Plaintiff had failed to timely designate expert witnesses.

The trial court agreed with Bakewell, striking Plaintiff’s expert declarations and granting summary judgment. Plaintiff appealed.

The Court of Appeal affirmed as it was undisputed that Plaintiff had failed to designate his experts timely following service of the demand for expert exchange. The Court of Appeal held the trial court did not abuse its discretion in striking the expert declarations.

While this case serves as an obvious reminder of the importance of timely designations of experts, it also serves as an useful example of how defendants can tactically use a plaintiff’s failure to designate to obtain summary judgment, or to leverage a dismissal in those circumstances where the expert designation deadline has passed, trial is continued without a corresponding continuance of the expert deadline, and sufficient time exists to move for summary judgment.

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February 9, 2016