Metropolitan News-Enterprise


Tuesday, September 30, 2003


Page 3


Judge May Not Order Only Plaintiff to Name Experts, C.A. Rules


By DAVID WATSON, Staff Writer


A trial judge’s power to fashion orders managing complex litigation does not permit him to order a plaintiff—but not defendants—to disclose the identity and opinions of expert witnesses, this district’s Court of Appeal ruled yesterday.

The court’s Div. Four reversed an order issued by Los Angeles Superior Court Judge Robert L. Hess. Hess, in an effort to trim the number of defendants in a toxic tort suit, ordered the plaintiffs to identify the experts whose testimony would support claims of liability on the part of each of the approximately 40 defendants.

The order also required the plaintiffs to serve on each defendant an expert’s declaration supporting the theory of liability.

The wrongful death action was brought on the behalf of the survivors of a man who died of lung disease after working in shops manufacturing aluminum wheels. The suit contends fumes, dust and inorganic particulates caused his illness.

The case was assigned to the court’s Complex Litigation Program.

Writing for the court, Justice J. Gary Hastings said Hess’ order conflicted with Code of Civil Procedure Sec. 2034, which mandates simultaneous exchange of expert witness lists.

He wrote:

“The court may order the expert exchange to be made on an earlier date than that specified in the demand….The Legislature has required, however, that the exchange be mutual and simultaneous….

“Thus, the trial court’s case management order…was in conflict with procedures specified by statute and established rules of law, insofar as it required the unilateral disclosure of the identity of each medical expert who would support petitioners’ claims, the expert’s curriculum vitae, and the expert’s opinion with regard to causation.  It was not, therefore, a proper exercise of the trial court’s power to manage complex litigation.”

Hastings rejected the defendants’ argument that the discovery order was supported by Cottle v. Superior Court (1992) 3 Cal.App.4th 1367.

The justice acknowledged that the trial judge in that toxic tort case “entered a case management order requiring each plaintiff to file a statement establishing a prima facie claim, identifying the injury-causing chemical or toxic substance, the dates, manner, and place of exposure, the nature of each plaintiff’s injuries, and the identity of each medical expert who would support the plaintiff’s personal injury claim.”  But he noted the plaintiffs in Cottle complied with the order, rather than seeking appellate review.

The issue reviewed by the Court of Appeal in Cottle, Hastings explained, involved the propriety of the judge’s order just before trial excluding evidence of physical injury.

“The question of whether a trial court may order an early, unilateral exchange of experts was not considered by the appellate court, and its opinion is therefore not authority on that issue,” the justice declared.

Justices Norman L. Epstein and Daniel A. Curry concurred.

Long Beach attorney Raphael Metzger, who represents the plaintiffs, said the court’s ruling establishes that judges cannot “make up their own rules inconsistent with the law.”

He added:

“There can’t be any shortcuts.  You have to follow the rules.”

Hastings also “properly relegated Cottle to the annals of obsolete cases limited to their unique facts,” the attorney said.

The case is Hernandez v. Superior Court (Acheson Industries, Inc.), B163040.


Copyright 2003, Metropolitan News Company