The Onglyza Product Cases, A165387 decided on April 19, 2023 by the First District Court of Appeal is a case to be aware of.  

The case involved 13 California state cases coordinated under a Judicial Council Coordination proceeding (JCCP) regarding the drug of Onglyza and Kombiglyze which contained the active ingredient saxagliptin a medicine for type 2 diabetes. Plaintiffs’ alleged that they were injured as the active ingredient can cause heart failure.  The trial court ordered the parties to conduct discovery in phases.  The first phase covered percipient and expert discovery on the issue of general causation, noting that the litigation would then proceed as to other issues only if plaintiffs were able to show that the defendant’s drugs caused the injuries alleged.  Following expert discovery, the defendants moved to exclude Plaintiffs’ causation expert, a Dr. Goyal.  Defendants’ claimed in a Daubert/Sargon hearing that Dr. Goyal was either unqualified to offer his proposed opinions, or that the basis of the opinions were incomplete and didn’t support causation.  Continue Reading Beware if Your Expert is Disqualified!!

Many lawyers use the terms “supplemental expert” and “rebuttal expert” interchangeably, but, according to the Discovery Act, they are very different. A supplemental expert  is one that was disclosed twenty days after experts have been disclosed and is pursuant to Code of Civil Procedure section 2034.280 and is allowed to provide expert testimony. However, a rebuttal expert’s testimony is limited to rebutting or contradicting an opponent’s  expert’s “foundational facts” that form the basis of their opinion.
Continue Reading Rebuttal Expert Witnesses—Do you know how to use them?

If a party failed to serve their expert disclosure statement on time, they may bring a motion pursuant to C.C.P §2034.710 for an order to submit a tardy expert witness list.  This section titled Power of Court to Allow Motion to Submit Tardy Expert Witness states:

(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.

(b) A motion under subdivision (a) shall be made a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section  § 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.Continue Reading So, You Forgot to Serve Your Expert Disclosure – Now What?

In Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, the Court of Appeal stated that where counsel retains an expert consultant with confidential information concerning the opponent’s case, there is a rebuttable presumption that the expert shared that confidential information with the counsel that retained him or her, which requires disqualification. See Evid Code §606 on the effect of a presumption. To prevent disqualification, the presumption must be rebutted with an affirmative evidentiary showing that no confidential materials were transmitted. This showing has been met by including the writings that were transmitted and what topics were discussed verbally, which would demonstrate that the offending material was not transmitted. However, be mindful that it is not just the precise materials, but also the benefit of the confidential materials that must be rebutted:
Continue Reading The Other Side Retained My Consultant – Should They Be Disqualified?

Sometimes, when you follow the rules regarding the expert witness demand and the initial expert witness disclosure and declaration and are now in receipt of opposing party’s expert disclosure, you find that the opposing party plans to call experts at trial in a subject area which you assumed wouldn’t require expert testimony, or that you hadn’t anticipated. If you didn’t disclose experts on the subject, you can serve a Supplemental Expert Disclosure within 20 days of the exchange of expert witness disclosure.
Continue Reading I didn’t know I needed an expert on that…

If a party has timely served a Demand for Simultaneous Exchange of Expert Trial Witness Information pursuant to Code of Civil Procedure section 2034.210, then “all parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand.”C.C.P. §2034.260(a). Unless there is a court order specifying otherwise, that date for the simultaneous exchange is 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date. C.C.P. §2034.230(b).Continue Reading 50 Days Before Trial—It’s Expert Disclosure Time

Alexandra A. Hamilton, a trial attorney at The Veen Firm, who handles complex cases involving catastrophic injuries or death, including products liability, workplace injuries, dangerous conditions of property, and vehicle negligence has written a great article for Plaintiff Magazine regarding how to combat the games attorneys play regarding the supplemental expert disclosure. Enjoy.Continue Reading When Opposing Counsel Tries to use Improper Supplemental Disclosures to its Benefit, Here’s How to Fight Them

Have you ever wondered how the work product doctrine works when you hire a consultant who may or may not become your expert. Trial Attorney Lee Previant, from Los Angeles, wrote this great article titled “Attorney Work Product Doctrine And Experts for Advocate Magazine that explains how it all works.  Enjoy.

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As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation.  Likewise, communications with your expert witnesses are necessary.  This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion.  In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him[/her] as an expert on the subject to which his[/her] testimony relates.”  (Evid. Code § 720.)

Continue Reading An Attorney’s Relationship with their Expert and the Work Product Doctrine

The case specifics may provide an opportunity to impeach a witness. This usually arises when a witness (expert or lay witness) has a financial interest in an aspect of the case or in the outcome. The financial interest may go beyond the obvious financial benefit of being retained in the case or being paid to travel first class to the trial. Financial benefit may even go to the opportunity to be retained in other similar cases.
Continue Reading Impeaching the Expert Witness

You are within fifty days of trial and you are in receipt of defendant’s expert witness disclosure. She has three experts and you have three experts. All six of them need to be deposed in less than 35 days and you haven’t yet sent out a deposition notice. You pick up the phone and meet and confer with opposing counsel to select dates. During the conversation the attorney for the defendant states very adamantly

My expert will not be ready to testify until your expert testifies. Besides you are the plaintiff and you have to go first!

Heard this before? I have and there are some significant problems with defense counsel’s position.
Continue Reading My Experts Go Last!