Exclusion of expert testimony is an evidentiary sanction is warranted only on a finding of an unreasonable failure to do any of the following:

1. List that witness as an expert under Section 2034.260.
2. Submit an expert witness declaration.
3. Produce reports and writings of expert witnesses under Section 2034.270.
4. Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

(Code of Civ. Proc., § 2034.300.)

Background

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 serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange. (Code of Civ. Proc., § 2034.260(a).)

An expert designation must include “[a] list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial.” (Code of Civ. Proc., § 2034.260(b)(1).) “If a 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 all of the following:

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 an 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.”

(Code of Civ. Proc., § 2034.260(c).)

How to Structure the Motion

A formal objection to the opposing expert testimony is required. The objection can be made by motion in limine or can be raised when the expert takes the stand. (Richaud v. Jennings (1993) 16 Cal.App.4th 81, 91.)

The Court’s Decision

“[U]nder Evidence Code sections 801, subdivision (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.”

(Sargon Enterprises, Inc. v. Univ. of S. Cal. (2012) 55 Cal.4th 747, 771–772.)

The court has the inherent power exercisable in its discretion, to exclude expert witness testimony “for an egregious violation” of those requirements. (Cottini v. Enloe Med. Ctr. (2014) 226 Cal.App.4th 401, 428-29.) However, under the Code of Civil Procedure section 2034.300, if the moving party makes the required showing, relief is mandatory. Under the court’s inherent authority, relief is within the court’s discretion. (Id. at 425-26.)

Although Code of Civ. Proc., § 2034.300 does not define “unreasonable,” the “operative inquiry” is whether the party’s conduct compromises the purposes of the discovery statutes. (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447.) A party’s failure to comply with expert designation rules may be found to be unreasonable “when a party’s conduct gives the appearance of gamesmanship, such as undue rigidity in responding to expert scheduling issues.” (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447.)

A party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony, if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult. (Easterby v. Clark (2009) 171 Cal. App. 4th 781; Jones v. Moore (2000) 80 Cal.App.4th 557; Kennemur v. State of California (1982) 133 Cal.App.3d 907; Bonds v. Roy (1999) 20 Cal.4th 140.) Furthermore, with respect to “issues that both sides anticipate will be disputed at trial, a party cannot merely ‘reserve its right‘ to designate experts in the initial exchange, wait to see what experts are designated by the opposition, and then name its experts only as purported ‘rebuttal’ witnesses.” (Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1021.)

“[T]he statutory scheme as a whole envisions timely disclosure of the general substance of an expert's expected testimony so that the parties may properly prepare for trial. Allowing new and unexpected testimony for the first time at trial so long as a party has submitted any expert witness declaration whatsoever is inconsistent with this purpose. We therefore conclude that the exclusion sanction of subdivision (j) applies when a party unreasonably fails to submit an expert witness declaration that fully complies with the content requirements of subdivision (f)(2), including the requirement that the declaration contain '[a] brief narrative statement of the general substance of the testimony that the expert is expected to give.' (Subd. (f)(2)(B).) This encompasses situations, like the present one, in which a party has submitted an expert witness declaration, but the narrative statement fails to disclose the general substance of the testimony the party later wishes to elicit from the expert at trial. To expand the scope of an expert’s testimony beyond what is stated in the declaration, a party must successfully move for leave to amend the declaration under subdivision (k).” (Bonds v. Roy (1999) 20 Cal. 4th 140, 148-149.)

“[C]ourts must also be cautious in excluding expert testimony. The trial court's gatekeeping role does not involve choosing between competing expert opinions. The high court warned that the gatekeeper’s focus ‘must be solely on principles and methodology, not on the conclusions that they generate.’” (Sargon Enterprises, Inc. v. Univ. of S. Cal. (2012) 55 Cal.4th 747, 772.)