Plaintiff Arlene Ludwig tripped and fell on a single step at a restaurant, and sued the corporation that owned the restaurant as well as the husband and wife owners of the corporation. Scheduling difficulties for five defense experts resulted in them not being deposed before the applicable discovery cutoffs. Defendants offered their experts for deposition after the cutoffs, but plaintiff’s counsel refused to take them.
The trial court excluded the five defense experts on the ground that defendants “unreasonably failed” to make their witnesses available for deposition. After a bench trial, the court found that the restaurant was negligent and that plaintiff was 40 percent at fault, awarding a judgment of about $10 million.
The Court of Appeal (Second District, Division Seven) reversed the judgment. The Court of Appeal held that defendants’ experts were reasonably available for deposition even after the discovery cutoffs and that the defense was prejudiced by the exclusion of its damages experts. The court remanded for a new trial on future economic and noneconomic damages, which had comprised about $8 million of the original judgment.
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