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Grupe Co. v. Workers' Compensation Appeals Board9/15/2005
the disclosure of the content or substance of the witness's testimony. The standardized pretrial conference statement forms filled out by the parties in this case provide no space for descriptions of the witnesses' proposed testimony, only space to identify witnesses.
However, as petitioners point out, section 5502, former subdivision (d)(3) also provides that " iscovery shall close on the date of the mandatory settlement conference" and that " vidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference." In our view, "discovery" as used in section 5502 is a reference to pretrial processes undertaken to obtain information about an opposing party's case in preparation for trial. It consists of actions calculated to discover information about an adversary's case, not the collection and organization of information about one's own case. Therefore, the discovery restriction in section 5502 is not implicated in the present dispute.
Section 5502 also provides that evidence not disclosed or obtained after the mandatory settlement conference will not be admissible. Disclosure refers to the disclosure of exhibits and witnesses in the pretrial conference statement. Therefore, evidence not disclosed on the statement or obtained after the conference is not admissible. The question becomes, what constitutes evidence in this case? Is the substance of the expert's testimony "evidence" that is obtained after the conference?
Since section 5502 requires only disclosure of exhibits and witnesses, evidence not disclosed on the pretrial conference statement or obtained subsequent to the conference can only refer to the identity of witnesses and specification of exhibits. As noted, the language of section 5502 does not require disclosure of the substance or content of a witness's testimony. Since disclosure of content is not required, failure to disclose or later development of such testimony does not run afoul of section 5502.
If a party fails to disclose the identity of a witness or an exhibit in the pretrial conference statement, such evidence is inadmissible under section 5502. If a party subsequently locates an exhibit or obtains a witness following the filing of the pretrial conference statement, again, such evidence is inadmissible under section 5502, unless the party can show the witness was unavailable or could not have been discovered through due diligence.
The content of a witness's testimony suffers no such infirmity. Here, Ridgeway disclosed Sidhu as a witness in the pretrial conference statement. In addition, although not required to do so, Ridgeway further disclosed Sidhu would testify regarding LeBoeuf. Clearly, Ridgeway obtained Sidhu as a witness and disclosed his identity in conformity with section 5502.
Nor does Sidhu's subsequent development of his testimony run afoul of section 5502. Section 5502 does not require that a witness disclosed in the pretrial conference statement formulate his or her testimony prior to the filing of the statement.
We do not fear this interpretation of section 5502 will lead to abuse by parties seeking to conceal testimony from their opponents. The WCJ possesses the power to order depositions and at the mandatory settlement conference may make orders and rulings regarding the admission of evidence, including admission of offers of proof and stipulations of testimony where appropriate and necessary. (§ 5710; Cal. Code Regs., tit. 8, § 10353(a).) Faced with a party's "sandbagging" an opposing party by failing to devel
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