To Retain or Not to Retain – Who Qualifies and How Best to Utilize Non-Retained Experts
Owen M. Praskievicz, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
As part of an attorney’s tactical arsenal when preparing for trial, the use of non-retained experts may sometimes be an undervalued asset. In addition to saving costly expert fees and avoiding the burdensome declaration requirements for retained experts, a non-retained expert can lend credibility to a case in a way that paid, retained experts sometimes can’t. Precisely because they are not being paid, a non-retained expert can educate a jury in a way that is perceived as more authentic and neutral.
In other words, non-retained experts are an asset that should not be overlooked. Given California’s leeway in allowing non-retained experts to potentially testify on a broad array of matters, trial attorneys should always be on the look-out for possible non-retained experts as they prepare for trial.
When is an Expert “Retained” or “Non-Retained” in California?
First, it is always important to remember what distinguishes a percipient witness, who is asked to recount something that he or she perceived, from an expert witness, who is asked to express an opinion about something in the case. This distinction is important because Evidence Code section 800 generally holds that any person not testifying as an expert is limited in testifying to those opinions that are "[r]ationally based on the perception of the witness." Otherwise, if a witness is asked to testify on their opinion or to discuss issues involving standard of care and causation, that witness is deemed to be a “retained witness” whose name and address must be disclosed, along with a declaration explaining what the witness will testify to. Code Civ. Proc. §2034.210.
But there is a middle ground between percipient witnesses and retained experts. Sometimes referred to as "expert" percipient witnesses, or simply non-retained experts, these witnesses may provide testimony that can go beyond strict observation of events and offer an opinion, so long as that opinion was not formed in anticipation of litigation or in preparation for trial. For many years, although section 2034 does not explicitly define a difference between "retained" and "non-retained" experts, California lawyers have taken advantage of this middle ground.
The California Supreme Court in Schreiber v. Kiser (1999) 22 Cal.4th 31 officially recognized the use of physicians as a classic example of non-retained experts. The court held that when a physician who acquires personal knowledge of relevant facts independently of litigation, no expert witness declaration is required and he or she may testify to their opinions if formed from scuh independently acquired facts, or by his or her training, skill, and experience. Id. at 39. The court said this may include opinions regarding causation and standard of care, if such issues are inherent in the expert’s work. Id.
The key to determining whether an expert has been retained, as expressed in Schreiber, is not simply a question of whether or not the expert was paid. The distinction instead turns on whether or not the expert’s opinion is entirely based on his or her own personal observations, or if they are instead forming an opinion on facts of the case that they are not personally familiar with.
Non-Retained Experts Other Than Physicians – Does Schreiber Apply?
While physicians are the “classic” example of non-retained experts, they are not the only recognized type of non-retained expert. Other examples of non-retained experts include plumbers and electricians (P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1348) (acknowledging the trial court’s “examples of other percipient witnesses who could be designated non-retained experts”), police officers who investigate or reconstruct a traffic accident, or even third-party accountants for a company that is making a claim for economic loss.
Interestingly enough, however, the case law is not clear as to the extent to which non-physicians can be utilized to testify as non-retained experts. In fact, the P&D Consultants case is sometimes cited by practice guides for the proposition that “if an expert, other than a treating physician, is disclosed solely as a nonretained expert and the requirements of CCP § 2034.210 are not met (i.e., the disclosing party fails to provide a declaration setting forth the nonretained expert's qualifications or the nature of the nonretained expert's testimony), the court can prohibit that witness from testifying as an expert.” William E. Wegner, Robert H. Fairbank, and Justice Norman L. Epstein; Contributing Editor: Judge Eli Chernow, Cal. Prac. Guide Civ. Trials & Ev. Ch. 4-F.
Yet P&D Consultants did not make such a holding. The confusion appears to be based on the trial court’s limitations placed on the defendant’s licensed engineer/construction manager, who was restricted from testifying on causation and standard of care issues because the defendant did not provide a declaration for the witness. P&D Consultants at 1347. Essentially, the trial court only allowed the engineer to act as a percipient witness, and denied him the leeway non-retained expert physician was allowed in Schreiber. On appeal, however, the P&D Consultants court recognized that the trial court in that case “relied on the analogous law pertaining to the testimony of treating physicians designated as non-retained experts, presumably as that is the context in which non-retained expert testimony generally arises,” while still acknowledging the use of other types of professions as non-retained experts. P&D Consultants at 1347.
On its face, this decision may appear incongruous to the holding in Schreiber, which held that expert declarations were not needed for non-retained expert physicians, who were allowed to testify as to causation and standard of care if they had personal knowledge of such issues. But the limitations on the engineer in P&D Consultants could have been implemented for other reasons, including the fact that the engineer was an employee of the defendant. Under section 20434, if a party or an employee of a party is going to provide testimony in the form of an expert opinion, a declaration must be provided. Or perhaps the trial court limited the engineer’s testimony because his opinion on standard of care and breach may have been outside the scope of his normal duties. Regardless, there is no clear authority suggesting that a non-physician, non-retained expert must provide a declaration.
What is clear is that courts have since clarified that parties intending to offer the opinion testimony of a non-retained expert witnesses at trial must still designate such witnesses in discovery, as is required by subdivision (f)(1) of section 2034, even though there is no requirement that the attorney’s declaration portion of the designation include information about those non-retained experts. Kalaba v. Gray (2002) 95 Cal.App.4th 1416 (rejecting the use of a generic phrase attempting to designate "all past or present examining and/or treating physicians.").
Benefits of a Non-Retained Expert – Impartiality, No Fee, and No Declaration
Under Schreiber, a non-retained expert is one who “has acquired, independently of the litigation, personal knowledge of relevant facts, and whose training, skill, and experience enables him or her to form an opinion about those facts .... [which] may well include opinions regarding causation and standard of care because such issues are inherent in [the witness's] work.” Schreiber at 39.
By this definition, the standard of expertise for a non-retained expert is no less stringent than the standard for retained experts. What this means is that a non-retained expert can be an essential piece in educating a fact finder about general principles while still appearing neutral because they are not being paid to give their opinion. If standard of care and causation are part of the non-retained expert’s personal knowledge, then the opinions they reach will carry even more weight with a judge or jury.
One of the greatest examples of how effective a non-retained expert can be in convincing a jury is the scene in My Cousin Vinny where Marisa Tomei’s character is called to testify on her “general automotive knowledge” in a case that hinged on the identity of a getaway car. Relying on her vast experience as a mechanic, Tomei convincingly explained to the jury how the tire tracks at the scene could only have been made by two types of cars, undermining the prosecution’s paid expert’s testimony. Although Tomei likely would not have qualified as a non-retained expert to reach such a conclusion in California (she looked at photos of the scene, which were not in her personal knowledge before trial), her impartiality and even hostility toward the defendant’s counsel (her husband, played by Joe Pesci), helped steamroll the prosecution’s retained expert’s testimony.
Experts outside of your client’s control have credibility precisely because such control creates a perceived bias. This is why third-party, non-retained experts are such effective assets in trial – they, in a way that no retained expert can, can convey to a jury a truly authentic neutrality. Along with the added bonus of saving your client the costly sums retained experts usually require, while not needing an early declaration narrating their testimony, non-retained experts are truly a win-win-win. Keeping an eye out for such witnesses, and utilizing them when available, should be a priority for every trial attorney.