Judge: Anne Hwang, Case: 20STCV17233, Date: 2024-02-27 Tentative Ruling

Case Number: 20STCV17233    Hearing Date: February 27, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On May 6, 2020, Plaintiff Rebecca Faessel (Plaintiff) filed a complaint against Defendant Florence Lisa Hartigan (“Defendant”) for negligence surrounding a motor vehicle accident.

On October 26, 2022, Defendant served her expert designation, and her supplemental designation on February 22, 2023. (Grover Decl. ¶ 4, Exh. B, C.) Although Plaintiff designated a neurosurgeon as an expert, Defendant did not supplement her list to include a neurosurgeon, finding that a neurologist, orthopedic surgeon, and radiologist was sufficient for the case. (Id.) However, on November 8, 2023, Plaintiff underwent brain surgery. Due to this surgery, Defendant now seeks to augment her expert designation to include neurosurgeon Dr. Paul Kaloostian. At the time of the initial expert designation, Defendant was unaware that Plaintiff would undergo brain and neck surgery in the future. (Id.)

On January 26, 2024, pursuant to stipulation, the Court continued trial to the current date of March 26, 2024. All discovery remains closed except relating to Plaintiff’s surgery, as outlined in the stipulation. Plaintiff opposes the motion. A reply was due February 20, 2024. No reply has been filed.

LEGAL STANDARD

Reopen Discovery

“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.¿ This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”¿ (Code Civ. Proc., section 2024.050, subd. (a).)¿¿ 

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“In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery.¿ (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿ (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿ (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”¿ (Code Civ. Proc., section 2024.050, subd. (b)(1)-(4).)¿¿¿¿ 

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“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code Civ. Proc., section 2024.050, subd. (c).)¿¿¿¿ 

Augment Expert List

On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to (1) augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained; and/or (2) amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.¿ (Code Civ. Proc., § 2034.610, subd. (a).)¿ This motion shall be made a sufficient time in advance to permit the deposition of any expert to whom the motion relates to be taken before the discovery cut-off, unless exceptional circumstances exist.¿ (Code Civ. Proc., § 2034.610, subd. (b).)¿ The motion shall be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2034.610, subd. (c).) ¿

The court may grant leave to augment or amend an expert witness list only if all of the following conditions are satisfied:¿¿

 (a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.¿

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.¿

(c) The court has determined either of the following:¿

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.¿

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(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:¿

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(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.¿

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(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.¿

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(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.¿

(Code of Civ. Proc. § 2034.620.)¿

MEET AND CONFER

The Declaration of Maria Grover shows that after learning of Plaintiff’s November 2023 surgery, the parties discussed augmenting the expert designation and reopening discovery for this motion. (Grover Decl. ¶ 5–6.) Therefore, Defendant made a reasonable effort to informally resolve this issue.

DISCUSSION

As an initial matter, Defendant asks to reopen discovery for the purposes of bringing the motion to augment her expert designation.  Considering the fact that Plaintiff’s surgery took place in November 2023, months after the expert designation, and Defendant filed this motion two months later, after attempting to informally resolve the issue, the Court in its discretion will hear the underlying motion. Since Defendant seeks to only add one expert, it is possible that the current trial date would not be affected.

Turning to the motion under Code of Civil Procedure section 2034.610, Defendant argues she was unaware that Plaintiff would seek a brain surgery in the future.

In opposition, Plaintiff contends that her initial discovery response in October 2020 stated that her treating neurosurgeon advised that she was a candidate for “suboccipital craniectomy, C1 laminectomy, and duraplasty”—the same surgery she ultimately underwent in November 2023. (Twomey Decl. ¶ 2, Exh. 1, 13:25–14:10.) The need for surgery was also discussed at Plaintiff’s deposition on December 15, 2020. (Id. ¶ 3, Exh. 2, 66:15–68:23.)

Defendant also selected a neurosurgeon to perform a physical examination of Plaintiff in April 2021. (Id. ¶ 4.) Due to the trial continuances, the parties exchanged experts three times. Each time, Plaintiff designated a neurosurgeon and Defendant designated a neurologist. (Id. ¶ 5.) Also, the experts were deposed between February and May 2023 during which they discussed Plaintiff’s need for neck and skull surgery. (Id. ¶ 6.)

Defendant does not explain why a neurosurgeon is necessary in addition to a neurologist. Moreover, knowing Plaintiff’s potential for surgery, Defendant fails to explain why a neurosurgeon was not designated, as a result of mistake, inadvertence, surprise, or excusable neglect. These issues were raised in Plaintiff’s opposition, and no reply brief has been filed.

CONCLUSION AND ORDER

Therefore, Defendant’s motion for Leave to Augment her Expert Witness Designation is DENIED.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.