Dow Chemical Co. v. Superior Court

Opinion

Petition for writ of mandate to compel respondent court to set aside its order of denial and to grant petitioner’s motion for a commission to take the deposition of Werner Gumpertz, a nonresident expert witness.

Real party in interest, The May Stores Shopping Centers, Inc. (hereinafter referred to as plaintiff), filed its action in respondent court on January 6, 1967, seeking damages representing out-of-pocket costs of the repair and replacement of the roof of its Topanga Plaza Shopping Center, alleging that in 1966 the roof, constructed in 1963, failed by reason of its defective design, improper construction and defective materials incorporated therein. Petitioner is one of the defendants, it being alleged that one of the roof components was manufactured by it.

Between the time of said alleged failure in December 1966, and the time of the replacement of said' roof in about August 1967, representatives of virtually all parties to said action visited said roof, which had a surface area in excess of 275,000 square feet. During this period, as well as during and after the replacement, several sales representatives and other employees of petitioner visited said roof on numerous occasions. In March 1967, one Edward Schreiber, a consultant engineer engaged by petitioner for that purpose, made an inspection and prepared a report containing his findings and conclusions. In response to subpoena served by counsel for plaintiff, a copy of said report was furnished to plaintiff.

On or about February 27, 1967, counsel for plaintiff engaged one Werner Gumpertz, an independent engineer with the firm of Simpson, Gumpertz & Heger, Inc., of Cambridge, Massachusetts, to assist in the preparation for trial, to examine said roof, and to reach conclusions and opinions regarding the causes of its alleged failure. Mr. Gumpertz is a potential witness in the case.

In April 1969, motion was made pursuant to section 2024, Code of Civil Procedure, for a commission to take the deposition of Werner Gumpertz, a resident of and doing business in Cambridge, Massachusetts. Petitioner alleges in the within petition that said notice of motion was accompanied by a declaration of one Rudolf H. Schroeter wherein “were set forth the above facts pertaining to Werner Gumpertz and the further fact that counsel for the Real Party in Interest had in writing refused to comply with a written request that Werner Gumpertz be made available for deposition examination either in his home state or before a commissioner of Respondent

cause as a condition to exercise of the power of the court to require pretrial disclosure of the observations and conclusions of an independent expert engaged by a party as part of his preparation for trial, after occurrence of the event sued upon, to examine and reach conclusions upon an object in issue. This rule avoids the permanency and inflexibility which would follow if the cloak of privilege were extended to cover the testimony of such experts. Its flexibility and terminability commend it.” The court was in complete accord with the view that the discovery provisions are to be liberally construed, but stated that “under the broadest statement of its purpose, pretrial discovery is subject to some limitations. . . . One such limitation seems reasonably to be drawn along the line distinguishing fact from opinion. The statute contemplates broad discovery of facts directly relating to the event or transaction in issue. But a somewhat different classification may well be assigned to the testimony of an independent expert engaged after the event or transaction to form an opinion upon some feature of it. . . . While such an expert normally is engaged with the idea that he will be called as a witness, he also serves, in most cases, as an adviser to counsel in determining upon an approach to the features of the case involving expert opinion, and these in turn indicate approach, emphasis, and legal theories for the case as a whole.” (Pp. 129-130.) The court concluded that, despite the lack of a specific statutory requirement for the showing of good cause, “the refusal of an independent expert to answer is justified unless the party seeking to compel his answer shows good cause therefor.” (Pp. 130-131.) The court then states: “It would be unwise and impractical to attempt to spell out here a rigid definition of good cause upon this issue. It is clear that if the object inspected and tested by the expert is no longer available and has not been examined or tested by the opponent’s experts, good cause to interrogate the expert exists. Similarly, where the testing has so altered the object tested that the opponent cannot make like tests, inquiry should be allowed. . . .

“In the infinite variety of circumstances which may arise in the course of human activity, as revealed in the complexities of litigation, many other factors may, collectively or individually, justify inquiry into the acts and thoughts of the independent expert. We do not attempt here to foresee and to detail them. Rather, we leave them to determination as they arise. Such determination will be facilitated by the exercise of a sound discretion in the trial courts in balancing the values of mutual pretrial knowledge of the relevant facts against the elements of ‘annoyance, expense, embarrassment or oppression’ (Code Civ. Proc., §§ 2030,.subd. (b), 2019, subd. (b)(1)).” Citing the Grand Lake case, the court in Swartzman v. Superior Court, supra, states at page 204: “In the case of expert opinion witnesses good cause normally must be shown to compel a deposition in advance of trial, and in the absence of good cause a motion to quash the deposition is

us, we conclude that petitioner has not sustained its burden of showing wherein the trial court abused its discretion in denying the motion upon the ground of failure to show good cause for examination of plaintiff’s expert.

Respondent court states, as a further ground for its denial of the motion, that “the information acquired by the expert at the instigation of plaintiff’s counsel, and the opinions based thereon, constitute the work product of plaintiff’s counsel.” In the instant case, of course, the deposition has not been taken and no questions have been asked of the witness, but the request “to take the deposition testimony of witness Werner Gumpertz pertaining to his professional qualifications and experience, observations and tests made regarding Topanga Plaza Shopping Center roof and all opinions and conclusions formed or based thereon” does not contemplate information which would be objectionable under the work product rule.

In Grand Lake, supra, defendant hired an expert to examine and report on the “slipperiness” of the premises on which plaintiff was alleged to have been injured. Plaintiff took the expert’s deposition and asked several questions about the nature of the surface he found, and the nature or results of his inspection and testing. The witness, on advice of counsel, refused to answer these questions on the ground, among others, that the information was a work product The court states (p. 129): “We do not accept defendant’s contention that the information here sought is the work product of its counsel within the meaning of the rule laid down in Hickman v. Taylor, 329 U.S. 495 [ 67 S.Ct. 385 , 91 L.Ed. 4511 .) There the material sought was wholly from the files of the attorney, all the product of his effort, research, and thought. Such is not the case here. In our case it is the thought, research, and effort of Cheek [the expert] which is sought by plaintiff. Although defense counsel may have exercised ingenuity in determining that ‘slipperiness’ of the walk could be tested, this is not enough, as we read Hickman, to make the examination and tests of Cheek the work product of counsel.”

More recently, in Swartzman v. Superior Court, supra, 231 Cal.App.2d 195 , 202-203, the court analyzes the different statuses of an expert employed by a litigant’s attorney to examine a subject of litigation and to assist in the preparation of his client’s case. The court then states: “Consultation between expert and counsel may appropriately be given broad immunity from discovery, both as to expert and as to counsel, because none of the expert’s opinion, professional though it may be, is relevant evidence in the case. To the contrary, his opinion is and will remain wholly irrelevant and immaterial as evidence until the expert is called as a witness on the trial and shown to be qualified to give competent opinion testimony on a matter in which he is versed and which is material to the case. . . .

“Nevertheless the initial status of the expert, as consultant and possible

witness, changes its character at that point in the suit when it has become known he will actually testify as a witness. When it becomes reasonably certain an expert will give his professional opinion as a witness on a material matter in dispute, then his opinion has become a factor in the cause. At that point the expert has ceased to be merely a consultant and has become a counter in the litigation, one to be evaluated along with others. Such evaluation properly includes appropriate pretrial discovery. [Citations.]”

Scotsman Mfg. Co. v. Superior Court, 242 Cal.App.2d 527 [ 51 Cal.Rptr. 511 ], was an action for injuries resulting from explosion of a butane lamp. Several defendants were sued, including Scotsman, which had installed the lamp, and Roberts, manufacturer of a valve. Scotsman’s attorney employed an expert to examine the lamp and make a written report to him, which the expert did. Roberts obtained an order for inspection of the expert’s report. The court, in granting a writ of prohibition to prohibit enforcement of the order, held that the report in question, which included information and opinions of the expert given to the attorney not only in his capacity as a prospective witness but also as an adviser in the preparation of the client’s defense, constituted a.work product subject to the discovery limitations prescribed by section 2016 of the Code of Civil Procedure. The court held, however, relying upon Swartzman, supra, that “the information and opinions of the expert relevant to his status as a witness may be discovered through interrogation and deposition procedures.” (See also Brown v. Superior Court, 218 Cal.App.2d 430 , at p. 442 [ 32 Cal.Rptr. 527 ]; Mowry v. Superior Court, 202 Cal.App.2d 229 , 243 [ 20 Cal.Rptr. 698 ].)

In the instant case petitioner does not seek to obtain a report prepared by Mr. Gumpertz for plaintiff’s counsel. Plaintiff admits that Mr. Gumpertz is a potential witness. The opinion of such witness and the reasons for such opinion where it is based upon open, known or discoverable facts are clearly discoverable by way of deposition. Respondent court erroneously denied the motion upon the ground that the information acquired by the' witness was protected by the work product rule. However, since the witness is an expert, the order of denial must be upheld on the basis of absence of good cause, as above determined.

The demurrer of real party in interest is overruled. The alternative writ of mandate is discharged and the peremptory writ is denied.

Fleming, Acting P. J., and Wright, J., concurred.

A petition for a rehearing was'denied December 11, 1969.