Party Statement: People of the State of California ex rel. et al vs. Day, James et al

On July 24, 2019 a Party Statement was filed involving a dispute between Feather River Air Quality Management District, People Of The State Of California Ex Rel., Placer County Air Pollution Control District, and Barbara Day, James Day, Mid Valley Consulting & General Engineering, for Civil-Roseville in the District Court of Placer County.

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ELECTRONICALLY FILED
Superior Court of California,
County of Placer
9-3-20
MATTHEW C. MACLEAR, SBN 209228 By: Lisa M Perry, Deputy Clerk
4030 Martin Luther King Jr. Way
Oakland, CA 94609
Telephone: (415) 568-5200
Email: mcm@atalawgroup.com

Attorneys for the Plaintiffs
The People of the State of California ex rel.
Placer County Air Pollution Air Control District
Feather River Air Quality Management District

CALIFORNIA SUPERIOR COURT

COUNTY OF PLACER
10

11
PEOPLE FOR THE STATE OF Case No.: SCV0043170
12 CALIFORNIA, ex rel. PLACER COUNTY
AIR POLLUTION CONTROL DISTRICT THE PEOPLE OF THE STATE OF
13 and FEATHER RIVER AIR QUALITY CALIFORNIA’S NOTICE OF
14 MANAGEMENT DISTRICT, SUPPLEMENTAL AUTHORITY

15 Plaintiffs, DATE: 9/8/20
TIME: 8:30am
16 VS. DEPT: TBD
17 JAMES DAY, individually; BARBARA DAY, JUDGE: TBD
individually, MID VALLEY CONSULTING &
18
GENERAL ENGINEERING, a California Trial Date: 9/8/2020
19 corporation; and DOES 1-10, inclusive,

20
Defendants.
21

THE PEOPLE OF THE STATE OF CALIFORNIA’S NOTICE OF SUPPLEMENTAL
AUTHORITY
The People hereby submit this Notice of Supplemental Authority in support of the People’s

Motion in Limine No. 1 To Exclude Expert Testimony of James Day, filed on August 28, 2020.

Specifically, the People submit as supplemental authority the decision by the Court of Appeal of

Califomia, First Appellate District, Division Two titled, Du-All Safety, LLC v. Superior Court (2019)

34 Cal.App.5th 485. A true and comect
copy of the Du-All decision is attached here to as Exhibit A.

Respectfully submitted,

DATED: September 3, 2020 AQUA TERRA AERIS LAW GROUP

< \ « A \
10 S
A

Matthew C. Maclear
11 Attomeys for People ex rel.
12 PCAPCD and FRAQMD

18
19

1
a0 ara
Wy. a0 ne9 THE PEOPLE OF THE STATE OF CALIFORNIA’S NOTICE OF SUPPLEMENTAL
AUTHORITY
EXHIBIT A
e Cited
As of: September
3, 2020 5:32 PM Z

Du-All Safety, LLC v. Superior Court

Court of Appeal of California, First Appellate District, Division Two
April 18, 2019, Opinion Filed

A155119

Reporter
34 Cal. App. 5th 485 *; 246 Cal. Rptr. 3d 211 *; 2019 Cal. App. LEXIS 357 **; 2019 WL 1746782
the likelihood that the claimants would designate
damages experts did not obligate the company to
DU-ALL SAFETY, LLC, Petitioner, v. THE SUPERIOR
identify rebuttal experts in its initial disclosure.
COURT OF ALAMEDA COUNTY, Respondent; MARK
KREIN etal., Real Parties in Interest.

Prior History: [**1] Superior Court of Alameda
Outcome
County, No. RG16833067, Frank Roesch,J udge.
Mandate relief granted.

Core Terms LexisNexis ® Headnotes
disclosure, discovery, gamesmanship, rebut, Bridge,
anticipate, economist, rebuttal, paraplegic, notice,
vacate

Civil Procedure > Appeals > Standards of
Review > Abuse of Discretion
Case Summary
Evidence > Admissibility > Expert Witnesses

Overview Civil Procedure > Appeals > Standards of
Review > De Novo Review
HOLDINGS: [1]-Because an industrial safety inspection
company defending a personal injury case timely and HN1[%] Standards of Review, Abuse of Discretion
simultaneously designated its initial experts under Code
Civ. Proc., §§ 2034.210, subd. (a), 2034.260, subd. A trial court's ruling on a motion to exclude expert
b)(1), and timely filed a supplemental disclosure testimony generally is reviewed for abuse of discretion.
identifying rebuttal experts in the same fields as the But a trial court's discretion is always delimited by the
claimants’ initially designated experts under Code Civ. statutes governing the particular issue, and when the
Proc., § 2034.280, the company fully complied with exclusion of expert testimony rests on a matter of
expert disclosure requirements, and the trial court statutory interpretation, the appellate court applies de
therefore erred when it excluded most of the company's novo review.
rebuttal experts without any showing of unreasonable
acts, gamesmanship, or prejudice; [2}Although the
company's initial disclosure named no damages Civil Procedure > Appeals > Standards of
experts, rebuttal as to damages was allowed because
Review > Abuse of Discretion

J. Tom Brett
Page 2 of 15
34 Cal. App. Sth 485, *485; 246 Cal. Rptr. 3d 211, **211; 2019 Cal. App. LEXIS 357, ***1

HN2[%] Standards of Review, Abuse of Discretion Civil Procedure > Discovery &
Disclosure > Disclosure > Mandatory Disclosures
Very little of general significance can be said about
discretion. The discretion of a trial judge is not a HN5[%] Disclosure, Mandatory Disclosures
whimsical, uncontrolled power, but a legal discretion,
which is subject to the limitations of legal principles The California J udges Discovery Benchbook is one of
governing the subject of its action, and to reversal on four benchbooks that provide practical working tools to
appeal where no reasonable basis for the action is enable a judge to conduct civil proceedings fairly,
shown. The scope of discretion always resides in the correctly, and efficiently. They are written from the
particular law being applied, i.e., in the legal principles judge's point of view, giving the judge concrete advice
governing the subject of the action. Action that on what to look for and how to respond. This is what
transgresses the confines of the applicable principles of that practical guide says about the supplemental
law is outside the scope of discretion and such action is exchange: A party that has participated in the exchange
called an abuse of discretion. The legal principles that of expert witness lists may supplement its list without a
govern the subject of discretionary action vary greatly court order, provided that (Code Civ. Proc., § 2034.280)
with context. They are derived from the common law or it submits its supplemental list to the other parties within
statutes under which discretion is conferred. 20 days after the exchange; any newly designated
expert will express an opinion only on a subject to be
covered by an expert designated by an adverse party; it
has not previously listed any expert witness on that
Civil Procedure > Appeals > Standards of
subject; the supplemental list is accompanied by an
Review > Abuse of Discretion
expert witness declaration; and it makes each newly
HN3[%] Standards of Review, Abuse of Discretion
designated expert immediately available for a
deposition.
Abuse of discretion has at least two components: a
factual component and a legal component. The legal
component of discretion has been explained as follows: Civil Procedure > Discovery &
The discretion intended is not a capricious or arbitrary Disclosure > Disclosure > Mandatory Disclosures
discretion, but an impartial discretion, guided and
controlled in its exercise by fixed legal principles. It is HN6[%] Disclosure, Mandatory Disclosures
not a mental discretion, to be exercised ex gratia, but a
legal discretion, to be exercised in conformity with the As the trial date draws near, the litigants sometimes will
spirit of the law and in a manner to subserve and not to change their minds about the need for expert testimony.
impede or defeat the ends of substantial justice. One party may initially decide that a particular aspect of
the case does not require expert testimony. Then, the
initial exchange of expert witness information reveals
that another party has designated one or more experts
Civil Procedure > Discovery &
to testify in this area. This may cause the party who has
Disclosure > Disclosure > Mandatory Disclosures
not listed an expert to decide that the safer course is to
retain one. Code Civ. Proc., § 2034.280, offers a way to
HN4[%] Disclosure, Mandatory Disclosures
effectuate this change of mind. It provides a window of
Under Code Civ. Proc., § 2034.210, subd. (a), a party opportunity after the initial exchange during which a
may demand a mutual and simultaneous exchange of party may have a right to make a supplemental expert
each expert witness that any party expects to offer in witness designation. In this respect supplementation of
evidence at trial. And Code Civ. Proc., § 2034.260, an expert witness under§ 2034.280 is different both
subd. (b)(1), requires an expert witness disclosure to list from augmenting an expert witness list and from making
every expert that the party expects to offer in evidence a tardy submission of one. These latter steps are nota
at trial. The statutory scheme provides that following matter of right; they require leave of court.
review of the experts the other side has disclosed, a
party may file a supplemental expert witness disclosure.
This is under Code Civ. Proc., § 2034.280. Civil Procedure > Discovery &
Disclosure > Disclosure > Mandatory Disclosures

J. Tom Brett
Page 3 of 15
34 Cal. App. Sth 485, *485; 246 Cal. Rptr. 3d 211, **211; 2019 Cal. App. LEXIS 357, ***1

HN7[%] Disclosure, Mandatory Disclosures HN10[%] Discovery, Misconduct During Discovery

Sometimes, the exchange reveals that one party plans A terminating sanction may be imposed only after a
to call experts on subjects the opposing party assumed party fails to obey an order compelling discovery.
would not require expert testimony. In such cases, the
opposing party has the right to supplement its expert
witness exchange by adding experts to cover subjects
Civil Procedure > Discovery &
on which the other party indicates it plans to offer expert
Disclosure > Disclosure > Mandatory Disclosures
testimony, and on which the opposing party had not
previously retained an expert to testify. HN11[%] Disclosure, Mandatory Disclosures

The statute governing the exchange of expert
Civil Procedure > Discovery & information requires a simultaneous exchange of
Disclosure > Disclosure > Mandatory Disclosures information, in which each side must either identify any
expert witnesses it expects to call at trial, or state that it
HN8/%] Disclosure, Mandatory Disclosures does not intend to rely upon expert testimony. When it
comes to issues that both sides anticipate will be
Code Civ. Proc., § 2034.210, requires only that a party disputed at trial, a party cannot merely reserve its right
designate the experts it expects to call at trial. If an to designate experts in the initial exchange, wait to see
interpretation requiring disclosure of every potential what experts are designated by the opposition, and then
rebuttal expert were correct, there would be no need for name its experts only as purported rebuttal witnesses.
Code Civ. Proc. § 2034.280. The Legislature
contemplated that when a party designates an expert, it
is possible the other side might want to designate a
Civil Procedure > Discovery &
rebuttal expert on the same topic.
Disclosure > Disclosure > Mandatory Disclosures

HN12[%] Disclosure, Mandatory Disclosures
Civil Procedure > Discovery &
Disclosure > Disclosure > Mandatory Disclosures The expert disclosure statute merely requires a party to
designate an expert whose opinion the party expects to
HNQ[%] Disclosure, Mandatory Disclosures offer in evidence at trial. Code Civ. Proc., § 2034.210,
subd. (a). So, the mere fact that a party may have
Failure to comply with expert designation rules may be known, expected, or even anticipated that the opposing
found to be unreasonable when a party's conduct gives parties would designate damages experts does not,
the appearance of gamesmanship, such as undue under the requirements set forth in the Code of Civil
rigidity in responding to expert scheduling issues. The Procedure, place any responsibility on the party to
operative inquiry is whether the conduct being evaluated anticipate what experts the opposing parties might
will compromise these evident purposes of the designate and in anticipation of that designation
discovery statutes: to assist the parties and the trier of designate rebuttal experts in its initial disclosure.
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.
There is case law disallowing experts where the conduct Headnotes/Summary
amounted to a comprehensive attempt to thwart the
opposition from legitimate and necessary discovery.
Summary
[*485] CALIFORNIA OFFICIAL REPORTS SUMMARY
Civil Procedure > Discovery &
Disclosure > Discovery > Misconduct During The trial court excluded most of the rebuttal experts that
Discovery were designated (Code Civ. Proc., § 2034.280) by an
industrial safety inspection company defending a

J. Tom Brett
Page 4 of 15
34 Cal. App. Sth 485, *485; 246 Cal. Rptr. 3d 211, **211; 2019 Cal. App. LEXIS 357, ***1

personal injury case. (Superior Court of Alameda that practical guide says about the supplemental
County, No. RG 16833067, Frank Roesch,J udge.) exchange: A party that has participated in the exchange
of expert witness lists may supplement its list without a
The Court of Appeal granted mandate relief, concluding court order, provided that (Code Civ. Proc., § 2034.280)
that because the company timely and simultaneously it submits its supplemental list to the other parties within
designated its initial experts (Code Civ. Proc., §§ 20 days after the exchange; any newly designated
2034.210, subd. (a), 2034.260, subd. (b)(1)) and timely expert will express an opinion only on a subject to be
filed a supplemental disclosure identifying rebuttal covered by an expert designated by an adverse party; it
experts in the same fields as the claimants’ initially has not previously listed any expert witness on that
designated experts, the company fully complied with subject; the supplemental list is accompanied by an
expert disclosure requirements. The trial court therefore expert witness declaration; and it makes each newly
erred when it excluded most of the company's rebuttal designated expert immediately available for a
experts without any showing of unreasonable acts, deposition.
gamesmanship, or prejudice. Although the company's
initial disclosure named no damages experts, rebuttal as
to damages was allowed because the likelihood that the CA(3)[%] (3)
claimants would designate damages experts did not
obligate the company to identify rebuttal experts in its Witnesses § 10—Expert Witness Disclosure—
initial disclosure. (Opinion by Richman, J ., with Kline, P. Supplemental Designation.
J.,and Miller,J ., concurring.)
As the trial date draws near, the litigants sometimes will
Headnotes change their minds about the need for expert testimony.
One party may initially decide that a particular aspect of
CALIFORNIA OFFICIAL REPORTS HEADNOTES the case does not require expert testimony. Then, the
initial exchange of expert witness information reveals
ca(ayp] (1) that another party has designated one or more experts
to testify in this area. This may cause the party who has
Witnesses § 10—Expert Witness Disclosure— not listed an expert to decide that the safer course is to
Supplemental Designation. retain one. Code Civ. Proc., § 2034.280, offers a way to
effectuate this change of mind. It provides a window of
Under Code Civ. Proc., § 2034.210, subd. (a), a party opportunity after the initial exchange during which a
may demand a mutual and simultaneous exchange of party may have a right to make a supplemental expert
each expert witness that any party expects to offer in witness designation. In this respect supplementation of
evidence at trial. And Code Civ. Proc., § 2034.260, an expert witness under§ 2034.280 is different both
subd. (b)(1), requires an expert witness disclosure to list from augmenting an expert witness list and from making
every expert that the party expects to offer in evidence a tardy submission of one. These latter steps are nota
at trial. The statutory scheme provides that following matter of right; they require leave of court.
review of the experts the other side has disclosed, a
party may file a supplemental expert witness disclosure.
This is under Code Civ. Proc.,§ 2034.280. [*487] CA (4)[%] (4)
Witnesses § 10—Expert Witness Disclosure—
CA(2) (I (2) Supplemental Designation.

Witnesses § 10—Expert Witness Disclosure— Sometimes, the exchange reveals that one party plans
Supplemental Designation. to call experts on subjects the opposing party assumed
would not require expert testimony. In such cases, the
The California J udges Discovery Benchbook is one of opposing party has the right to supplement its expert
four benchbooks that provide practical working tools to witness exchange by adding experts to cover subjects
enable a judge to conduct civil proceedings fairly, on which the other party indicates it plans to offer expert
correctly, and efficiently. They are written from the testimony, and on which the opposing party had not
judge's point of view, giving the judge concrete advice previously retained an expert to testify.
on what to look for and how to respond. This is what

J. Tom Brett
Page 5 of 15
34 Cal. App. Sth 485, *487; 246 Cal. Rptr. 3d 211, **211; 2019 Cal. App. LEXIS 357, ***1

expert witnesses it expects to call at trial, or state that it
CA(5)(%] (5) does not intend to rely upon expert testimony. When it
comes to issues that both sides anticipate will be
Witnesses § 10—Expert Witness Disclosure— disputed at trial, a party cannot merely reserve its right
Supplemental Designation. to designate experts in the initial exchange, wait to see
what experts are designated by the opposition, and then
Code Civ. Proc., § 2034.210, requires only that a party name its experts only as purported rebuttal witnesses.
designate the experts it expects to call at trial. If an
interpretation requiring disclosure of every potential
rebuttal expert were correct, there would be no need for Caio) (9)
Code Civ. Proc., § 2034.280. The Legislature
contemplated that when a party designates an expert, it Witnesses § 10—Expert Witness Disclosure—
is possible the other side might want to designate a Supplemental Designation.
rebuttal expert on the same topic.
The expert disclosure statute merely requires a party to
designate an [*488] expert whose opinion the party
CA(6) (1 (6) expects to offer in evidence at trial (Code Civ. Proc., §
2034.210, subd. (a)). So, the mere fact thata party may
Witnesses § 10—Expert Witness Disclosure— have known, expected, or even anticipated that the
Noncompliance. opposing parties would designate damages experts
does not, under the requirements set forth in the Code
Failure to comply with expert designation rules may be of Civil Procedure, place any responsibility on the party
found to be unreasonable when a party's conduct gives to anticipate what experts the opposing parties might
the appearance of gamesmanship, such as undue designate and in anticipation of that designation
rigidity in responding to expert scheduling issues. The designate rebuttal experts in its initial disclosure.
operative inquiry is whether the conduct being evaluated
will compromise these evident purposes of the
discovery statutes: to assist the parties and the trier of CA(10)[3%] (10)
fact in ascertaining the truth; to encourage settlement by
educating the parties as to the strengths of their claims Witnesses § 10—Expert Witness Disclosure—
and defenses; to expedite and facilitate preparation and Supplemental Designation.
trial; to prevent delay; and to safeguard against surprise.
There is case law disallowing experts where the conduct An industrial safety inspection company defending a
amounted to a comprehensive attempt to thwart the personal injury case disclosed the experts it expected to
opposition from legitimate and necessary discovery. call at trial. Then, when the claimants disclosed five
other experts and also produced a life care plan, the
company retained and designated experts to rebut the
CA(7)(%] (7) claimants’ position, including its own expert on a life
care plan. This was the precise reason why the
Discovery and Depositions § 32—Enforcement— Legislature codified the right to designate rebuttal
Sanctions—Terminating— When Imposed. experts. The trial court's denial of this enumerated right
by placing limitations not found in the Code of Civil
A terminating sanction may be imposed only after a Procedure was an abuse of discretion.
party fails to obey an order compelling discovery.
[Levy et al. Cal. Torts (2019) ch. 72 72.4 Cal.
Forms of Pleading and Practice (2019) ch. 198,
ca(s)f (8) Discovery: Exchange of Expert Witness Information, §
198.15; Kiesel et_al., Matthew Bender Practice Guide:
Witnesses § 10—Expert Witness Disclosure— Cal. Civil Discovery (2019) § 13.17.]
Supplemental Designation.

The statute governing the exchange of expert
information requires a simultaneous exchange of
information, in which each side must either identify any

J. Tom Brett
Page 6 of 15
34 Cal. App. Sth 485, *488; 246 Cal. Rptr. 3d 211, **211; 2019 Cal. App. LEXIS 357, ***1

Counsel: Gordon & Rees, Miles D. Scully, Timothy K. their first amended complaint, the operative complaint
Branson and Matthew Gregory Kleiner for Petitioner. here (complaint). It named 12 defendants: Du-All;
Alricks Steel, Inc.; Tuolumne County Engineering
Consultants, Inc.; Darrhl | Dentoni & Associates;
No appearance for Respondent.
Kjeldsen, Sinnock & Neudeck, Inc.; V.J. Gretzinger,
P.E.; Eugene Weatherby, PLE.; Gretzinger &
The Veen Firm, Anthony L. Label, Steven Aaron Weatherby; R.W. Siegfried & Associates; Siegfriend
Kronenberg; The Law Firm of Valerie McGinty and Engineering, Inc.; Schelin Associates, Inc.; and Robert
Valerie McGinty for Real Parties in Interest. D. Moore Construction Co., Inc.

The complaint was based on an accident in November
2015, when Mark Krein, an employee of Tuolumne
Judges: Opinion by Richman, J ., with Kline, P.J., and Water District, fell from a bridge at his place of
Miller,J ., concurring. employment and “sustained paraplegic injuries.” The
[213] thrust of the charging allegations were these:

—In 1974, defendant Robert D. Moore Construction Co.
contracted to build a wastewater treatment plant for
Opinion by: Richman, J .
Tuolumne County Water District No. 2, which plant
included two digester tanks that reduced the
concentration of solids in wastewater. The construction
contract required [**3] the construction and installation
Opinion of a galvanized steel foot bridge (The Bridge) between
the digester tanks pursuant to specifications, including
longitudinal supporting beams of trusses. And
[212] RICHMAN, J .— Defendant Du-All Safety, LLC “Defendants, and each of them, designed, approved,
(Du-All), timely filed its expert witness disclosure manufactured, and inspected The Bridge.”
pursuant to the Code of Civil Procedure, identifying two
—In February 2002, Du-All contracted to periodically
experts it expected to call at trial. Plaintiffs' expert
inspect the wastewater treatment plant, including The
disclosure [*489] identified two experts to testify as to
Bridge and its related equipment, and did not exercise
the same subjects as Du-All's experts, and also five
reasonable care to identify any violations or hazardous
more experts in other subjects. Du-All filed a
conditions of The Bridge or recommend any corrective
supplemental disclosure identifying five experts in those
action for it, which omissions increased the risk of harm
fields. Plaintiffs moved to strike the supplemental
to Mark Krein, other employees of the Tuolumne Utilities
disclosure and exclude the experts, and the trial court
District, and the public.
agreed in most part, ruling that four of the experts could
not testify. Du-All filed a petition for a writ of mandate —In November 2015, Mark Krein (who had worked for
directing the superior court to vacate its order, arguing the district since 2007) was walking on The Bridge when
that the [***2] court abused its discretion in granting the the floor gave way, and he fell [*490] “because The
motion. We agree with Du-All, and we grant the petition. Bridge including its related equipment, component parts,
and constituents were defectively designed,
constructed, manufactured, and inspected. Neither the
BACKGROUND defendants nor The Bridge provided any notice or
warning to plaintiff Mark Krein of any risk of personal
injury.”

Proceedings in the Trial Court The complaint alleged seven causes of action, only two
of which included Du-All as a [***4] defendant: the first,
On March 2, 2017, plaintiffs Mark Krein and his wife, for general negligence, and the seventh, for loss of
Lori Krein (when referred to collectively, plaintiffs), filed consortium. The other five causes of action were
product liability claims, all alleged against the other 11
defendants.
1 All statutory references are to the Code of Civil Procedure.

J. Tom Brett
Page 7 of 15
34 Cal. App. Sth 485, *490; 246 Cal. Rptr. 3d 211, **213; 2019 Cal. App. LEXIS 357, ***4

Many of the defendants filed answers to the complaint, That gets us to May 2018, and the issue here.
including, as pertinent here, Du-All, whose answer was
filed on March 17, 2017. That answer is not in the On May 7, Du-All served its expert witness disclosure,
record, and neither are any of the other pleadings filed identifying the two experts it “expected” to call at trial:
in the next 12 months, and we glean what occurred in (1) a health and safety management consultant, and (2)
the case from the register of actions, which, we note, a structural engineer.
does not meaningfully describe most of the pleadings.
On May 7, plaintiffs served their expert witness
As best we can tell, what occurred included this:
disclosure, also identifying a safety consultant and a
—A case management conference scheduled for May structural engineer. In addition, plaintiffs disclosed five
18, 2017, apparently continued to May 19, and then to other experts to testify on various topics, as follows: (1)
May 24, at which the case was set for jury trial for May Tracy Albee, a registered nurse and life care planner, to
14, 2018. The court also ordered the case to private testify regarding past and future injury-related needs
mediation. and costs; (2) Digby MacDonald, a chemist, to testify to
the effects of rust and corrosion; (3) Robert
J ohnson, a
—Various dismissals were filed. forensic economist, to testify to past and future
economic losses; (4) Dr. Ted Scott, a physiatrist, to
—A motion for good faith settlement was filed on testify to damages and injuries and their cause and
February 14, 2018, which motion was granted on March effects; and (5) Scott Simon, a vocational rehabilitation
15. Another such motion was filed on April 9, which was consultant, to testify to functional limitations and need
granted on May 17. Thus, it appears that by May 2018 for assistance. That same day, plaintiffs produced their
at least eight of the defendants had been removed from life care plan.
the case, no fewer than six by dismissal and two
by [°*5] good faith settlements. Whether any Following receipt of plaintiffs' expert disclosure and the
defendant beyond Du-All remained in the case is not life care plan, Du-All determined that supplemental
apparent. experts would be necessary, and it retained [**7]
several supplemental experts to rebut the anticipated
Meanwhile, on March 7, 2018, Du-All filed a motion to testimony of the experts disclosed by plaintiffs. And on
continue the trial, set for hearing on March 15. May 25, pursuant to section 2034.280, Du-All served its
According to a later-filed stipulation, the court heard the supplemental expert disclosure, listing the following five
motion to continue on March 15, but deferred ruling on it
experts: (1) Darko Babic, a rust expert engineer, to
until the April 27 case management conference. Then,
respond to plaintiffs’ expert MacDonald; (2) Carol
on March 16, counsel for plaintiffs and Du-All filed a
Hyland, a life care planner, to rebut the reasonableness
stipulation, with an order signed by the court, continuing
of the life care plan created by plaintiffs' expert Albee;
the trial to J une 25.
(3) Mark Newton, an economist, to rebut plaintiffs’
We close our brief discussion of what occurred in the expertJ ohnson as to past and future economic losses;
(4) Jill A. Moeller, a vocational rehabilitation consultant,
case with an observation of what did not occur—
to rebut plaintiffs’ expert Simon on issues of functional
discovery disputes. That is, review of the 28-page
limitations and need for assistance; and (5) Dr. Maureen
register of actions shows that between November 2016,
D. Miner, a physiatrist, to rebut plaintiffs' expert Scott on
when the [*491] complaint was served, and [214]
the nature and extent of Mark Krein's damages and
mid-May 2018, the only motion involving discovery was
injuries, including the cause and effect of those injuries.
plaintiffs' motion for relief from waiver
for failing to make
objections to written discovery. No motion to compel On June 4, pursuant to an order shortening time,
was filed by any party.2 Put otherwise, from all plaintiffs filed a motion to strike Du-All's supplemental
indications all parties, including Du-All, fully complied disclosure, setting the hearing for June 7. [*492]
without compulsion in any discovery in which it was Plaintiffs argued that Du-All should have disclosed the
involved, demonstrating that at all times Du-All and its experts identified in the supplemental disclosure in its
counsel apparently acted cooperatively and original disclosure because these types of experts
appropriately. And without [**6] gamesmanship. are [**8] commonly used in personal injury cases.
And, plaintiffs argued, Du-All engaged in
“gamesmanship” and, moreover, plaintiffs were
2The only motion to compel was filed after mid-May, filed by prejudiced by the supplemental expert disclosure, but
Du-All.

J. Tom Brett
Page 8 of 15
34 Cal. App. Sth 485, *492; 246 Cal. Rptr. 3d 211, **214; 2019 Cal. App. LEXIS 357, ***8

citing in claimed support only Du-All's “concern that it fact that the—those kind of issues—one might have
would be difficult to schedule the initially-designated presumed reasonably on the defense side that the
expert depositions before trial... .” structural engineer expert on both sides would go into
that and it might have—it's certainly possible that it
On June 4, the same day on which plaintiffs filed their might have been news that a chemist was going to be
motion to strike, Du-All filed a motion to continue the testifying for the other side on the issue of rust and
trial date because discovery, both nonexpert and expert, corrosion, and so | think that it is reasonable, although |
had not been completed— indeed, that expert discovery see it as a close issue frankly. It's reasonable to have
had not even begun. that expert testify and be named in the supplemental
declaration for experts. That would be my view after
On June 6, Du-All filed its opposition to the motion to
having read the paperwork.
strike and a supporting declaration, [*215] stating that
the supplemental experts were just that, experts “MR. SHANAGHER [counsel for Du-All]: Couple of
retained after receipt of plaintiffs' expert disclosure. And, comments, your Honor?
counsel for Du-All declared, there was no
“gamesmanship” involved in its supplemental expert “THE COURT: | already made my decision, | don't know
disclosure. what you're going to comment for. You don't get to try to
talk me out of it at this point.
On June 7, three days after Du-All filed its motion to
continue the trial—and the day Du-All's motion was set “MR. SHANAGHER: Okay. All right. Fair enough. The
for hearing—the parties stipulated to continue the trial only thing that was not clear, was there was one other
date to October 29. The stipulation was entered into expert. | think that you mentioned Miller, Miner, P**11]
before the hearing on plaintiffs' motion to strike, and was and Highland [sic].
based on the parties' desire [°*9] to accommodate a
mutually convenient date for the deposition of plaintiff, “THE COURT: Yes.
the orderly depositions of expert witnesses, and the
“MR. SHANAGHER: But not Mark Newton the
completion of certain expert testing. The stipulation
economist?
further agreed that expert discovery was to remain open
until 30 days before the newly agreed-to trial date. “THE COURT: Oh, no, the economist has to go too. You
knew—you had to have known that—that, one, the other
The same day,J une 7, the court held a hearing at which
side was going to have an economist and that you
various matters were discussed. The first was Du-All's
should have an economist, too. The statement opening
discovery motion (see fn. 2, ante), on which the court
the Fairfax? case applies in this case.
ruled for Du-All. The court then granted the motion to
continue the trial, resetting it to October 29. The final [216] “MR. SHANAGHER: We respectfully disagree
item was the issue of “the experts,” the entirety of which with, your Honor.
is reflected in fewer than three pages of the reporter's
transcript. It was as follows: “THE COURT: All right.”

Following confirmation that counsel had nothing to add On July 5, Du-All filed a motion for reconsideration
to their papers, this brief colloquy occurred: based on a new fact, the four-month trial continuance.
The motion argued that the trial did not take into
“THE COURT: All right. It's abundantly clear to me that consideration its order granting the continuance, which
the defendant failed to comply with the simultaneous eliminated any possible prejudice plaintiffs may claim,
rule in disclosing experts ... for life care or life planning, and, further, that the parties still had not commenced
for vocational rehab, and for someone that's going to be expert discovery.
talking about the nature and extent of the Plaintiff's
injuries. Those three experts Carol Highland [sic], J ill On July 25, plaintiffs filed their opposition, relying on
Moeller, and Dr. Miner may no

Case Info

Case No.

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Document Filed Date

September 03, 2020

Case Filing Date

July 24, 2019

County

Parties

Barbara Day Defendant
Feather River Air Quality Management District Plaintiff
Gentry, Galen Micah Hughey Phillips, LLP Attorney for the Defendant
James Day Defendant
Maclear, Matthew Christophe Aqua Terra Aeris Law Group Attorneys for Plaintiffs
Mid Valley Consulting & General Engineering Defendant
People of the State of California ex rel. Plaintiff
Placer County Air Pollution Control District Plaintiff
Noah Phillips Attorneys for Defendants
Ryan Lochan Attorneys for Defendants
Kevin Hughey Attorneys for Defendants
Erica Maharg Attorneys for Plaintiffs
James Brett Attorneys for Plaintiffs

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Party Statement: People of the State of California ex rel. et al vs. Day, James et al

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