Zellerino

—In this appeal the critical question is whether a party who makes a defective demand for the exchange of expert trial witnesses pursuant to Code of Civil Procedure section 2034, may obtain relief pursuant to section 473. Ancillary issues also tendered are whether the trial court abused its discretion in granting relief under section 473 by issuing an order compelling discovery and in granting an in limine motion when the plaintiff failed to comply with that order.

This is a medical malpractice case in which defendants, unaware that plaintiff had not retained any medical experts, served a discovery demand for an exchange of expert witnesses. The demand was early. When plaintiff served a written “objection” that the demand was untimely, defendants obtained relief by a motion pursuant to section 473. The trial court ordered plaintiff to disclose her expert witnesses. Plaintiff ignored the order. A few days before trial plaintiff retained and disclosed two expert witnesses. At trial, as a sanction for her abuse of the discovery system, the court refused to permit plaintiff to introduce the testimony of these experts. Nonsuit was granted to defendants. We shall…