A plaintiff counsel writes in asking for advice:

 “Today is July 7th.  Trial is July 31.  Discovery cut-off was July 1 and expert discovery closes on July 16th.  Well, my client sought additional treatment on June 25thwith a neck, back and spine specialist. The results of the visit were provided to me on June 26th and I immediately mailed the results to opposing counsel that day. Now opposing counsel is stating the discovery is after the cutoff and inadmissible and the doctor  can’t testify because expert disclosure has passed.   I’m really worried about whether I will be able to use the evidence and if so, how I will be able to use the evidence?”

Opposing counsel is blowing smoke at this young lawyer.

The facts are that plaintiff is still treating for his injuries and plaintiff counsel immediately provided the medical records to defense counsel five weeks before the start of trial.

Though discovery closes 30 days before trial, both plaintiff and defense counsel should have been proactive so that neither side was prejudiced regarding the new information.  The alternative is plaintiff being barred from using the information, or the defense proceeds to trial without a chance to fully discover the ramifications of this new information.

Upon receipt of the medical records from the new treating physician, the parties should have met and conferred.  The parties should have been willing to do the following:

  • Waive the discovery cut off dates governed by CCP §2024.020(a) so defense counsel can conduct discovery regarding the new treatment;
  • Waive the notice time to take the deposition of the specialist on a mutually agreed upon date;
  • Plaintiff agree to provide an authorization so defendant can to obtain a copy of the medical records from the specialist without the need and time delays of serving a subpoena;
  • Plaintiff agree to be produced for an additional period of time for deposition regarding the diagnosis and treatment by the specialist;
  • Plaintiff agree to submit to an independent medical examination if one has not already been taken and augment their expert witness list if necessary;
  • Defendant agree to allow plaintiff to augment their expert disclosure list to name the specialist;
  • Agree to continue the trial date for 60 or 90 days so the parties can conduct the necessary discovery regarding the new information.

If the parties could not reach such an agreement, then either side should  have brought an ex parte application for an order shortening time to hear any of the following motions:

Motion to Reopen Discovery   See CCP §2024.050;

Motion to Augment Expert Disclosure List   See C.C.P. §2034.610; and/or

Motion to Continue Trial for 60 – 90 days to complete discovery regarding the new information.  See CRC Rule 3.1332

More likely than not, the court would grant these motions as a trial continuance would alleviate defendant’s and plaintiff’s prejudice concerning the new information as the court will not condone an ambush by the plaintiff, nor lying in wait by the defense to move to exclude critical information.

The moral of the story is that, like many other discovery issues that arise,  the purpose of discovery  is to “educate the parties concerning their claims and defenses” and to “avoid surprise” at trial. See Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101, 1107 citing Greyhound Corp v Superior Court (1961) 56 C2d 355, 376] and Fairmont Ins. Co. v Superior Court (2000) 22 C4th 245, 253