February 23, 2017

Declaration of undisclosed expert inadmissible to oppose summary judgment

In Perry v. Bakewell Hawthorne, LLC, the Supreme Court today holds that a failure to timely comply with requirements for the exchange of expert witness information can hurt a party not only at trial but also in summary judgment proceedings.  The court’s unanimous opinion by Justice Carol Corrigan reasons that, because only “admissible evidence” can be considered on a summary judgment motion and because not responding to a demand for expert witness information makes an expert opinion inadmissible, “A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial.”  A failure to comply is not necessarily irremediable, however.  The court advises that relief should be sought from a blown expert exchange deadline “as soon as the party discovers the need to submit a declaration by a previously undisclosed expert.”

The court affirms the Second District, Division Two, Court of Appeal.  In doing so, it overrules one its own 1985 decisions and it disapproves a 1990 Fifth District opinion.  The court notes that the earlier opinions, in addition to being erroneously reasoned, “reflect the more restrictive approach to summary judgment prevailing when they were decided” and that summary judgment “is now seen as ‘a particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.”

Horvitz & Levy filed an amicus curiae brief, and presented oral argument, in Perry on behalf of the Association of Southern California Defense Counsel.  The court’s opinion cites the brief.


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