1

The Differences Between a Retained and Non-Retained Expert WitnessBy Barbara Haubrich-Hass, ACP/CAS 07-06-2011

I am often asked, “What are the differences betweena ‘retained’ and a ‘non-retained’ expert witness inCalifornia state court?” There are very importantdifferences between the two that a paralegal shouldbe cognizant of so that critical errors are not madeweeks before trial.

California Code of Civil Procedure §§2034.210 -2034.730 is the governing statute relating to expertwitnesses. To determine the differences betweenretained and non-retained expert witnesses, an

understanding of C.C.P. §2034.210 et seq. and supporting case law is necessary.

C.C.P. §2034.210 et seq. mandates full and timely disclosure concerning expert witnesses. Theexchange of expert witness information is one of the most critical events in preparing a civil case fortrial. The expert witness disclosure dictates which expert witnesses a party may call to testify at trial.However, C.C.P. § 2034.210 et seq. “makes a distinction between retained and other experts.”[Hurtado v. Western Medical Center (1990) 222 Cal. App. 3d 1198, 1203] Below are some of thedistinctions between retained and non-retained expert witnesses.

A. DISCLOSURE:

Typically, when a party discloses expert witnesses pursuant to a Demand for Designation of ExpertWitness Information, the disclosure separates the list of retained versus non-retained expertwitnesses. How is it determined whether to place an expert as a retained or non-retained expertwitness? Although this decision is ultimately for the attorney to make, understanding thisfundamental part of expert disclosures is critical in order to provide proper litigation support to yourattorney.

“A retained expert in a disclosure is one retained by a party for the purpose of forming andexpressing an opinion in anticipation of the litigation or in preparation for the trial of the action.”[Easterby v. Clark (2009) 171 Cal. App. 4th 772] The disclosure requirements of Section 2034.210 etseq. “apply only to retained experts.” [Huntley v. Foster (1995) 35 Cal. App. 4th 753, 756] “Thedifference, for purposes of disclosure, between a treating physician who testifies as an expert and aretained expert is not the content of the testimony, but the content in which the physician becamefamiliar with the plaintiff’s injuries that were ultimately the subject of litigation, and which form thefactual basis for the medical opinion.” [Easterly v. Clark, supra, (2009) 171 Cal. App. 4th 772]

“Because a percipient expert is not given information by the employing party, but acquires itfrom personal observation, the current statute treats him or her as a fact witness. Requiring

2

an attorney to analyze such a witness’s anticipated testimony and subject the analysis to theopponent would invade the absolute protection given by the work product doctrine to thethought processes of an attorney in preparation for trial [Citation.]” [Hurtado v. WesternMedical Group (1990) 222 Cal. App. 3d 1198, 1203]

Therefore, whether to list an expert as a retained or non-retained expert is narrowed down towhether the expert was hired to form an expert opinion for trial, and the manner in which the expertbecame familiar with the subject matter of the expertise to form the factual basis for the opinion.

B. EXPERT DECLARATION:

C.C.P. §2034.260 sets forth how expert witness information is to be exchanged between the parties.If the expert is listed as a retained expert witness, §2034.260 requires that the designation include adeclaration under penalty of perjury and provides:

“(1) A brief narrative statement of the qualifications of each expert.(2) A brief narrative statement of the general substance of the testimony that the expert isexpected to give.(3) A representation that the expert has agreed to testify at the trial.(4) A representation that the expert will be sufficiently familiar with the pending action tosubmit to a meaningful oral deposition concerning the specific testimony, including anyopinion and its basis, that the expert is expected to give at trial.

Example

A common non-retained expert witness is a treating physician. A treating physician forms his or heropinion based upon the injured party’s medical history, independent physical examination(s), diagnosticstudies, etc. A treating physician was not hired specifically to testify regarding the injured party’sinjuries, but was sought to administer “treatment” for the injuries. Therefore, in this scenario a treatingphysician is considered a “percipient” expert and would be designated as a non-retained expert.

In contrast, if in the course of the treatment of the injured party, the physician is hired by the injuredparty’s attorney to examine other documents and deposition testimony to form opinions outside therealm of a treating physician, such as rendering opinions in response to the other party’s retainedphysician, then the attorney may want to list the physician as a retained expert so that the treatingphysician is not limited in the scope of his or her testimony.

Additionally, a retained physician is one that is hired by a party’s attorney to render an opinion basedupon the analysis of medical records provided to the physician, written materials and studies, anindependent examination of the plaintiff, etc. This physician must review documents and testimony ofothers to form an opinion. This physician does not render “treatment” to the injured party. Therefore,a physician who was hired exclusively to render an opinion at trial would be designated as a retainedexpert witness.

3

(5) A statement of the expert’s hourly and daily fee for providing deposition testimony andfor consulting with the retaining attorney.” C.C.P., § 2034.260(c)

“The declaration requirement for an expert witness applies to only certain expert witnesses, as inthose who are parties, employees of parties, or are retained by a party for the purpose of formingand expressing an opinion in anticipation of the litigation or in preparation for the trial.” [Kalaba v.Gray (2002) 95 Cal. App. 4th 1416]

Therefore, with respect to the expert disclosure declaration, if the expert is listed as a non-retainedexpert, a declaration is not required. In contract, if the expert is listed as a retained expert, adeclaration containing the information listed above is required.

C. PRODUCTION OF REPORTS AND WRITINGS:

C.C.P. § 2034.270 requires a party to produce and exchange all discoverable expert reports andwritings if the demand for the exchange includes a demand for the production of reports andwritings. Therefore, since “[T]he disclosure requirements of Section 2034.210 et seq. apply only to‘retained’ experts,” [Huntley v. Foster (1995) 35 Cal. App. 4th 753, 756] the production of expertreports and writings need only be produced for the retained expert witnesses listed in the exchange.

Observation

A common error that I have seen is for counsel to list a party, or an employee of a party, as a non-retained expert witness, and not include a declaration in compliance with §2034.260.

C.C.P. §2034.210(b) specifically states that …”If an expert designated by a party is a party or anemployee of a party, or has been retained by a party for the purpose of forming and expressing anopinion in anticipation of litigation or in preparation for the trial of the action, the designation of thatwitness shall include or be accompanied by an expert witness declaration.” [Emphasis added]

Good Practice

It is good practice to produce non-retained expert’s medical reports that have not already beenproduced in previous discovery.

4

D. SUPPLEMENTAL EXPERT WITNESS EXCHANGE:

C.C.P. § 2034.280 allows for “any party who engaged in the exchange to submit a supplementalexpert witness list containing the name of any expert who will express an opinion on a subject to becovered by an expert designated by an adverse party to the exchange, if the party supplementing anexpert witness list has not previously retained an expert to testify on that subject.” C.C.P. § 2034.280also requires a declaration be included in the supplemental exchange. Therefore, parties are allowedto supplement an expert witness exchange with retained experts, but are not permitted tosupplement an expert witness exchange with non-retained expert witnesses.

E. DEPOSITION OF EXPERT WITNESSES:

There are important differences to keep in mind when setting depositions of retained and non-retained expert witnesses.

Retained Expert Depositions:

o Any party may take the deposition of an expert witness [C.C.P. § 2034.410] and theparty designating the retained expert must produce that expert for deposition upon aproperly noticed deposition.

o C.C.P. § 2034.440 requires that, “the party designating an expert is responsible for anyfee charged by the expert for preparing for a deposition and for traveling to the placeof the deposition, as well as for any travel expenses of the expert.”

o C.C.P. § 2034.450 requires that the “party taking the deposition of an expert witnessshall either accompany the service of the deposition notice with a tender of theexpert’s fee based on the anticipated length of the deposition, or tender that fee atthe commencement of the deposition.

Non-Retained Expert Deposition:

Because a non-retained expert witness is considered a percipient witness, you would notice thedeposition of a non-retained expert witness pursuant to the provision of C.C.P. § 2025.210 et seq.

o The party designating the non-retained expert is not under any obligation to produce thatexpert for deposition testimony.

o A non-retained expert witness must be subpoenaed to appear at his or her deposition.

Be Careful

Because § 2034.280 precludes a party from supplementing an expert disclosure with non-retained experts, itis very critical that case facts and materials are carefully reviewed so that non-retained experts are not

overlooked.

5

o A non-retained expert witness is paid a witness fee and mileage pursuant to C.C.P. § 2020.230.

F. CONCLUSION:

This is just a few of the differences between retained and non-retained expert witnesses in Californiastate court. When in doubt, ALWAYS ask your supervising attorney.

http://thecalifornialitigator.com/deadline-direct.html

Do you want to use this article? You can so long as you include this entire blurb with it: "Barbara Haubrich-Hass, TheCalifornia Litigator, publishes an e-zine that delivers simple discussions and strategies for the California civil litigationprofessional. Barbara’s discussions focus on common paralegal and law office tasks, such as pre-litigation documentgathering, document preparation, filing rules, law and motion, discovery, arbitration, trial, deadline calculation, and post-trialprocedures. More information is available at www.thecalifornialitigator.com

©Copyright 2011 All Rights Reserved

DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The CaliforniaLitigator, and any other statements contained herein, are for information purposes only, and should not beconstrued as legal advice or a recommendation on a legal matter. The information from The California Litigator isnot guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about theaccuracy or reliability of the information provided within this newsletter, or to any other website to which thisnewsletter may be linked.

Practice Pointer

It is good practice to accompany the retained expert’s first hourly fee with the Notice of TakingDeposition. C.C.P. § 2034.460 states that, “the service of a proper deposition notice accompanied by thetender of the expert witness fee is effective to require the party employing or retaining the expert toproduce the expert for the deposition.” In the event of a Motion to Compel Deposition or Motion inLimine to Preclude an Expert for failure to appear at his or her deposition, this will ensure that the Noticewas served according to the code.