On Tuesday, in Fairfax v. Lords, ___ Cal.App.4th ___ (Apr. 18, 2006), the Court of Appeal (Fourth Appellate District, Division Three) held that the trial court has no discretion under Code of Civil Procedure section 2034 (now sections 2034.210 et seq.) to permit defendants to wait to designate their experts until after the plaintiff has designated hers. I have faced this argument myself, but fortunately I haven't seen a trial judge accept it. In Fairfax, the Court of Appeal made clear that the argument fails under the statute's plain language, which requires "simultaneous" designations of experts:
According to [defendant's] reasoning, “[s]ince plaintiff had the burden of proof on all issues presented here . . . it is simply prudent litigation defense practice to minimize the cost of litigation by allowing plaintiff to declare the issues he intends to retain experts for, and for the defense to then offer appropriate rebuttal experts. Some plaintiffs designate economists, accountants, accident reconstructionists, vocational rehabilitationists, physical therapists, pain management specialists and various types of physicians practicing in different areas. . . .  It would serve no purpose for the defendant to designate the myriad types of experts in the first designation, thereby driving up the cost of litigation, only to later find out plaintiff took a more simple approach to the case and thus certain defense experts were prepared in vain. It would also be poor litigation strategy for the defendant to declare one type of healthcare provider for an issue, and thus be foreclosed from designating another expert on the same topic, prior to knowing what type of expert plaintiff has chosen.”(Slip op. at 8-10.)
There are two significant problems with [defendant's] reasoning. First, he seems to be assuming there is no way for defendant to determine what claims are at issue in a particular case until plaintiff reveals his expert witness list. That is simply untrue.
The complaint itself is a rich source for determining what claims are at issue. In the instant case, for example, the complaint specifies a claim for medical malpractice. That should put defendant’s mind at rest concerning the potential need for an “accident reconstructionist.” As for the other potential issues listed by [defendant], ordinary discovery is available to determine whether, for example, plaintiff is claiming lost wages, and if so, whether the calculation of such wages is subject to dispute; whether plaintiff is truly disabled from performing his (or other suitable) work; whether plaintiff has undergone physical therapy (or should have); and whether plaintiff has undergone (or might have been helped by) pain management. Reasonably competent defense counsel is not at risk of expending large amounts on issues like these because he cannot ascertain the nature of plaintiff’s claims.
The second, and more fundamental problem with [defendant's] argument is that it is simply inconsistent with the clear statutory requirement of a “simultaneous” exchange. Even if we agreed that defendants’ interests would be better served by a system which allowed them to designate experts only after seeing plaintiffs’ list (and it would be difficult to dispute the point), that is simply not an appropriate basis for ignoring the requirements of the statute. By [defendant's] reasoning, we could also agree that defendants might be well served by a system which relieved them of any obligation to even respond to a complaint until plaintiff had proved his prima facie case at trial. After all, if plaintiff doesn’t have the goods, why require a defendant to spend even a dime? But that is not the law, and it is not our place to conclude it should be.