 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Basco v. Tishgart6/14/2005
Daniel Shalom, M.D., who disagreed with Dr. Newkirk's conclusion that respondent's injury resulted in Thoracic Outlet Syndrome. Dr. Shalom discerned no reason why respondent could not return to work.
BACKGROUND
I.
It appears that both sides initially demanded a jury, but only respondent deposited the fees required by Code of Civil Procedure section 631. When respondent then waived her right to trial by jury at the time in limine motions were being argued, appellant persisted in his demand for a jury. The trial court denied appellant's demand because he had not posted jury fees. Appellant contends in effect that he was thereby denied his constitutional right to have the case determined by a jury. This contention is without merit.
The governing statute clearly states that the right to jury trial is waived by the failure to post fees. (Code Civ. Proc., § 631, subd. (d)(5).) This principle is long-standing and firmly established. (E.g., Conneau v. Geis (1887) 73 Cal. 176, 177-180; Adams v. Crawford (1897) 116 Cal. 495, 497; Adler v. Wells Fargo Bk. & U. T. Co. (1934) 2 Cal.App.2d 255, 257; Banks v. McMorris (1975) 47 Cal.App.3d 723, 729; Massie v. AAR Western Skyways, Inc. (1992) 4 Cal.App.4th 405, 408-412.)
A prior version of the statute provided a mechanism by which a party who did not originally demand a jury or post fees could pick up a waived jury from the other party. "When the party who has demanded trial by jury . . . waives such trial . . . trial by jury shall be waived by the other party either failing promptly to demand trial by jury . . . or by that party's failing promptly to deposit the fees . . . ." (Former Code Civ. Proc., § 631, subd (c).) However, as respondent points out, this changed when the Legislature amended the statute to provide that each party demanding a jury trial must deposit fees in advance of the trial. (Code Civ. Proc., § 631, subds. (b) & (c), as amended by Stats. 2002, ch. 806, § 15.)
II.
One of appellant's in limine motions was for the court to exclude all of respondent's expert witnesses. As the motion is described in the reporter's transcript (appellant did not designate his moving papers for inclusion in the record on appeal), appellant sought exclusion on the ground that respondent's "expert witness disclosure is defective in two ways . . . . t is not under penalty of perjury, and it does not have a representation that his clients are going to testify at trial." Respondent's counsel conceded that "there are two technical deficiencies in the expert disclosure. There was a disclosure. There was not something called a declaration in which I testified or declared under penalty of perjury that the information was correct. [ ] The second deficiency is that the disclosure does not set forth the magic words that each of the experts have agreed to testify." According to respondent's counsel, neither of these defects "in any way substantively prejudices the defendant in any way . . . . [ ] The code does allow for exclusion of experts where a party has unreasonably failed to provide the information, and I think unreasonably is pretty important. I served the disclosure in September last year, roughly eight or nine months ago. The magic words could have been supplied if the deficiencies had been brought to my attention. [ ] In fact, when defense attorney brought it to my attention last week, the deficiencies had been cured by a formal declaration by that afternoon. No additional information was provided. I mean, there's nothing that they were missing. They know who our experts were. They knew what they were going to testify about. They noticed their depositions, so they certainly could have
Page 1 2 3 4 5 6 7 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|