Kelly A. Knight is an attorney and mediator based in Los Angeles, CAlifornia. He handles matters throughout California.

Court of Appeal orders trial court to grant trial continuance where parties' expert witness could not testify due to illness

Anyone who has been anywhere close to a few months of a trial date knows the crazy scheduling that goes on in those last few months: discovery is closing, loose ends have to get wrapped up, opponents sandbag you with new information, expert discovery is conducted, and much more, all while trying to figure out when the trial might actually start so that everyone can figure out when each witness might be needed. One big fear? That an expert witness might be suddenly unavailable.

In Padda v. Superior Court, Cal. Ct. App. 4th Dist. no. E070522 (June 11, 2018) (slip opinion link) (Google Scholar link (note that this is to the prior unpublished opinion dated 6/11/18; the order to publish was entered on 7/6/18)), two doctors left a medical practice after issues with the terms and conditions of their employment. The employer sued the doctors for breach of employment contract, and the doctors cross-complained (counter sued). We don't know what the issues were, but we have a hint in the cross-claims: breach of contract, fraud, and violation of Labor Code 970 (which prohibits certain types of misrepresentations in inducing someone to take a job). See slip op. at 2.

"Given that the consolidated complaint and cross-complaint involve the intricacies of gastroenterology medical and business practices, each side designated gastroenterology expert witnesses to testify." Slip op. at 2. Trial was set for May 21, 2018. Id. 

Deposition of the petitioners' expert was set for the week before trial. But before the deposition, the expert suffered the onset of what appeared to be a serious medical illness: the expert was diagnosed with a ruptured hemorrhagic cyst affecting the kidney and pancreas. Id. Treatment and recovery were estimated at six weeks. Id.

On May 14, 2018, the doctors filed an ex parte application to continue the trial. The employer opposed, expressing concerns over patient scheduling if the trial were to be rescheduled. Id. at 5. Notably, the employer agreed that it was likely that the doctors' expert would be unavailable during trial. Id. at 3.

The trial court denied the opposition, expressing "concern over the impact on patients being treated by physician parties and witnesses and the scheduling difficulties attendant to a continuance, as well as the age of the case and prior continuances" (the case had been pending for almost four years, with four trial continuances granted in the last year (see id. at 3)). Id. at 5-6. The doctors petitioned for writ of mandate and/or prohibition with the Court of Appeal, seeking an immediate stay of the trial. Id. at 4.

"Generally, a trial court abuses its discretion when it denies a request for continuance of trial due to the absence of a properly called and subpoenaed witness." Id. at 5. The trial court would have had the trial started immediately, with then nearly an immediate interruption or pause for the doctors to seek and retain a new expert witness and get the expert up to speed, all causing a disruption in the trial and an impact on sitting jurors. Id. at 6. No good. 

While it might be possible to find a new expert witness quickly, and while the trial court does have inherent power to manage its docket, "the eve of trial impact on petitioners’ ability to present their case is an untenable burden and a distraction during a high-tempo proceeding." Id. at 6. Accordingly, the trial court abused its discretion in denying the request for continuance.

The Court of Appeal issued the writ, ordering the the trial court to vacate its denial of the ex parte application and to enter a new order granting the request. Id. at 7.


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