Cases

Plaintiffs sued numerous doctors and hospitals for failing to diagnose a rare brain infection.  Their counsel repeatedly failed to produce their designated medical expert for deposition.  The court eventually excluded the expert, but declined to dismiss the case because plaintiffs’ counsel contended that she could prove the case through nonretained experts.  When it became clear shortly before trial that plaintiffs had no expert testimony at all, the court granted a nonsuit, awarded defendants their costs, and sanctioned plaintiffs’ counsel.  Plaintiffs appealed.

The Court of Appeal affirmed.  Agreeing with arguments developed by GMSR, the court held that the trial court acted within its discretion in excluding plaintiffs’ expert, that plaintiffs forfeited their claim that expert testimony was unnecessary by failing to raise it below, that any error in granting the nonsuit before opening statements was harmless, and that there was no infirmity in the prevailing-party cost award.  The court declined to review plaintiffs’ challenges to the award of section 998 expert witness fees and monetary sanctions against plaintiffs’ counsel, holding that they were outside the scope of plaintiffs’ appeal from the judgment.

To read the Court of Appeal Opinion, click HERE.