Judge: Armen Tamzarian, Case: 19STCV30385, Date: 2023-04-14 Tentative Ruling

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Case Number: 19STCV30385    Hearing Date: April 14, 2023    Dept: 52

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

PLAINTIFF’S MOTIONS IN LIMINE

            1.         Order “precluding defendant from relitigating issues that have been                  adjudicated against it in the Workers’ Compensation Appeals Board.”

Plaintiff Dora Hernandez moves in limine for an “order precluding defendant from relitigating issues that have been adjudicated against it in the workers’ compensation appeals board.”  The proposed order states the court would be granting plaintiff’s motion for an order “collaterally estopping and precluding Defendant Massive Prints, Inc. from relitigating and/or challenging issues and facts that have been adjudicated against it in the Workers’ Compensation Appeals Board.”

Such an order would be too generic and would not provide meaningful guidance to the parties or witnesses.  “The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party.  A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial.”  (People v. Morris (1991) 53 Cal.3d 152, 188.)  A motion in limine should be denied when it seeks an order that is “not properly the subject of motions in limine … or [seeks] rulings which would merely be declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses.”  (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670 (Kelly).) 

In Kelly, the Court of Appeal stated a motion in limine to “ ‘exclude any testimony of the plaintiffs which is speculative’ ” was inadequate because “[n]o factual support or argument was presented to suggest the nature and type of speculative testimony which [defendant] expected to be elicited from plaintiffs.”  (Kelly, supra, 49 Cal.App.4th at p. 670.)  Similarly, a motion to “preclude[e] plaintiffs from calling any witnesses ‘not previously identified in plaintiffs’ discovery responses’ ” failed because, “[a]bsent a meaningful and expressed belief that this may occur, this was a meaningless motion unless and until plaintiffs attempted to call such witnesses.’ ”  (Id. at pp. 670-671, fn. omitted.)

Plaintiff’s memorandum of points and authorities refers to three specific issues she argues are subject to collateral estoppel: “[a] when Plaintiff notified Defendant about her injuries and impairments, [b] the fact that her injuries and impairments were work related and [c] the fact that she has suffered permanent disabilities.”  (Motion, p. 3.)  The court will grant the motion as to the first issue only.

Legal Standard for Collateral Estoppel

“Collateral estoppel precludes the relitigation of an issue only if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding.”  (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.)

a.         When plaintiff notified defendant of injury

Collateral estoppel bars defendant from relitigating the issue of fact that plaintiff notified defendant of her injury before her termination. 

Both cases include the identical issue of fact.  In this action, plaintiff alleges disability discrimination under the Fair Employment and Housing Act (FEHA).  She must prove “she was subjected to an adverse employment action because of the disability.”  (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84.)  “An adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer.”  (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)  Similarly, the provision for reasonable accommodation requires an employer to accommodate an employee’s “known physical or mental disability.”  (Gov. Code, § 12940, subd. (m)(1).)  “The employee bears the burden of giving the employer notice of his or her disability.”  (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.)  Plaintiff intends to prove that by showing she actually notified defendant of her physical disability before her termination. 

When defendant had notice of plaintiff’s physical condition was also an issue in the workers’ compensation proceeding.  There, the court ruled, “Defendant has failed to meet its burden pursuant to Labor Code Sec. 3600(a)(1) to establish that notice of the claim was received after termination or that applicant had legal knowledge of the claim prior to termination.”  (Ex. 2, p. 1, ¶ 2.)  The court found: “Applicant testified that she told her supervisor, Judith Ruiz of her injury to her hand approximately a week before the layoff.  [Citation.]  This is confirmed by Ms. Ruiz who states that applicant asked for time off to go to the doctor and made it clear that the injury was not work related.  Ms. Ruiz asked applicant how she injured her hand and was told that the applicant did not know.”  (Id., pp. 2-3.)  The court further stated, “[T]he cumulative trauma injury… is not barred by the post termination defense because applicant gave the employer sufficient notice initially to investigate the claim before the layoff.”  (Id. at p. 3.) 

The identical issue was actually litigated and necessarily decided in the workers’ compensation proceeding between the same parties.  That proceeding reached a final decision on the merits.  Defendant cannot relitigate the issue.   

Defendant makes no argument about any of the elements of collateral estoppel.  Instead, defendant opposes this motion on the grounds that workers’ compensation has a lower burden of proof, is liberally construed to benefit employees, does not require an employer to be at fault, and does not apply the typical rules of evidence. 

Controlling authority, however, holds that workers’ compensation proceedings are treated the same as civil actions for purposes of res judicata or collateral estoppel.  (Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 633 [“We have stated on a number of occasions that the final determinations of the [Workers’ Compensation Appeals] Board, like those of the superior court, are ‘res judicata in all subsequent proceedings, including court actions’ ”].)  “The doctrine [of collateral estoppel] applies to an administrative determination when made by an administrative agency that is acting in a judicial capacity and resolving disputed issues which the parties have had an adequate opportunity to litigate.  [Citation.]  An opinion and order of the Workers’ Compensation Appeals Board qualifies as such an administrative determination.”  (Housing Authority v. Workers' Comp. Appeals Bd. (1998) 60 Cal.App.4th 1076, 1083.)

b.         Work-related injury

Collateral estoppel does not apply to the issue of how plaintiff was injured.  This action does not include that identical issue from the workers’ compensation proceeding because here it is not an issue at all.  Whether plaintiff’s injuries “were work related” is irrelevant.  The issues are whether she was disabled, and whether defendant engaged in the interactive process, provided reasonable accommodations, or discriminated against her.  FEHA’s protections are the same regardless of why plaintiff had a disability. 

c.         Permanent disabilities

Finally, collateral estoppel does not apply to the issue of plaintiff’s “permanent disabilities” because the issue is not identical in the two proceedings.  Workers’ compensation and FEHA have different definitions of “disability.”  Under FEHA, “disability” generally means a mental or physical condition that “limits a major life activity” because it “makes the achievement of the major life activity difficult.”  (Gov. Code, § 12926, subds. (j)(1) & (m)(1)(B).) 

In contrast, under the Workers’ Compensation Act, the issue is whether an injury makes working difficult.  “The touchstone of the workers’ compensation system is industrial injury which results in occupational disability.”  (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 752.)   “The workers’ compensation system is designed to compensate only for such disability or need for treatment as is occupationally related.  ‘Temporary disability’ benefits are a substitute for lost wages during a period of temporary incapacity from working; ‘permanent disability’ payments are provided for permanent bodily impairment, to indemnify for impaired future earning capacity or decreased ability to compete in an open labor market.”  (Id. at p. 753.)

The extent of plaintiff’s injuries and their impact on her future earning capacity are not issues in this FEHA action.  Though these FEHA claims “involve” the same injury, they arise from “the way [her employer] treated her because of [her] limitations,” which “is a separate harm.”  (Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, 105–106.)     

            The court hereby excludes all evidence or argument by defendant’s counsel that plaintiff did not report her injury to defendant before she was terminated.  The remainder of plaintiff’s motion in limine no. 1 is denied. 

            2.         Order “excluding all collateral source evidence including any benefits                that plaintiff received through the EDD or her workers’ comp. claim.”

Plaintiff Dora Hernandez moves to exclude evidence of “any collateral source benefits and/or payments received and/or paid to or on behalf of Plaintiff in any form, especially with relation to any workers’ comp. or EDD benefits Plaintiff may have received.”

The collateral source rule has two components: substantive and evidentiary.  “If an injured plaintiff gets some compensation for the injury from a collateral source such as insurance, that payment is, under the collateral source doctrine, not deducted from the damages that the plaintiff can collect from the tortfeasor.”  (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 8 (Lund).)  “The question whether to tell the jury about collateral compensation is analytically distinct from the collateral source rule itself.  But because the two issues are so closely linked, courts often draw no distinction between the two. . . .  ‘The case law sometimes confuses these interrelated principles, moving effortlessly from the substantive to the evidentiary strands of the collateral source doctrine, and back, with little differentiation.’ ”  (Ibid.)

Substance of Collateral Source Rule

Here, workers’ compensation and unemployment benefits are collateral sources.  The Court of Appeal has stated, “It is unclear whether the collateral source rule applies” to workers’ compensation benefits.  (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 636–637 (Lee).)  But as Lee notes, in Lund “the California Supreme Court appeared to assume the collateral source rule generally applies to workers’ compensation benefits.”  (Id. at p. 637.)  Other cases have similarly applied the rule to workers’ compensation benefits with little analysis.  (See, e.g., Galvis v. Petito (1993) 13 Cal.App.4th 551, 563, fn. 13 [“As a general matter, under the collateral source rule a plaintiff’s damages would not be reduced by the amount of workers’ compensation benefits received”].) 

Other jurisdictions have also applied the collateral source rule to workers’ compensation benefits.  (See Salitros v. Chrysler Corp. (8th Cir. 2002) 306 F.3d 562, 573 ["Workers' compensation benefits are considered a collateral source” in an ADA employment case]; Knafel v. Pepsi-Cola Bottlers of Akron, Inc. (6th Cir. 1990) 899 F.2d 1473, 1480 [“workers’ compensation, like unemployment benefits, are subject to the collateral source rule”]; Fruge v. Penrod Drilling Co. (5th Cir. 1990) 918 F.2d 1163, 1168; Illinois Cent. Gulf R. Co. v. Haynes (Ala. 1991) 592 So.2d 536, 541.)  The Restatement of Torts similarly includes “benefits, arising by statute, as in worker’s compensation acts” as collateral source benefits.  (Rest.2d Torts, § 920A, com. b.) 

Based on the weight of authority, the court concludes the collateral source rule applies to workers’ compensation benefits.

As for unemployment benefits, defendant does not argue the collateral source rule is inapplicable.   Defendant instead asserts it does not intend to offer such evidence.

Evidence of Collateral Source Benefits

Common law “and Evidence Code, section 352 require the trial court to assess the prejudicial effect of telling the jury about insurance coverage, even with appropriate cautionary instructions, against the probability that the party who seeks to present evidence of insurance coverage can show a proper relationship between the coverage and an issue in the case.”  (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 16.)  In the present case, the probability of undue prejudice substantially outweighs the probative value of evidence about plaintiff’s workers’ compensation and unemployment benefits. 

Defendant does not show that the evidence of plaintiff’s collateral benefits is relevant to an issue in the case.  Instead, its opposition confirms it seeks to present such evidence for the very purpose prohibited by the collateral source rule.  Defendant argues, “It would be unfair to the Defendant to prevent Defendant from exploring the areas concerning Plaintiff’s workers compensation claim, which includes a claim for psychological injury, that overlaps with emotional distress claims in the instant case.  Defendant wants to attack the Plaintiff’s claims of severe emotional distress, where she has already been compensated.”  (Opp., p. 4.) 

That plaintiff has already been compensated is an argument for offset.  The core of the collateral source rule is that collateral “compensation should not be deducted from the damages the victim otherwise obtains from the tortfeasor.”  (Kardly v. State Farm Mut. Auto. Ins. Co. (1989) 207 Cal.App.3d 479, 485.)

Defendant also argues it “intends to put on evidence that Plaintiff’s severe emotional distress for losing her sewing job is mitigated by the fact she gets regular workers compensation benefits, and some of her medical care, past and future, is provided for her, at no cost.”  (Opp, p. 2.)  Defendant cites no authority supporting admitting collateral source evidence for that reason.  The same reason would apply in most cases involving collateral source evidence.  Admitting such evidence for that purpose would risk creating an exception that swallows the rule. 

            Plaintiff’s motion in limine No. 2 is granted.  The court hereby excludes all evidence or argument by defendant that plaintiff received workers’ compensation or unemployment benefits.  This order does not exclude evidence of the fact plaintiff applied for workers’ compensation benefits or statements made by plaintiff in connection with her application.

            3.         Order “excluding any evidence defendant failed to disclose or any                       witness defendant failed to identify in discovery”

            Plaintiff Dora Hernandez moves to exclude “any evidence Defendant failed to disclose or any witness Defendant failed to identify in discovery.”   Plaintiff does not, however, identify the “evidence” or witnesses she seeks to exclude.  The court cannot rule on this motion in a vacuum and declines to issue an advisory opinion on a generic question of law.  (See Kelly, supra, 49 Cal.App.4th at p. 671.)  At trial, if and when defendant attempts to introduce evidence, or call a witness, that it should have disclosed during discovery, plaintiff may make a timely and appropriate objection.  The motion is denied.

            4.         Order “precluding defendant from presenting any evidence and/or                     testimony from or about purported ‘not-me’ witnesses”

            Plaintiff moves to exclude “any evidence and/or testimony from or about purported ‘not-me’ witnesses.”  The court will not issue such a generic order for the same reasons as for plaintiff’s motion in limine No. 3.   

In addition to this generic proposed order, plaintiff specifically argues for excluding defendant’s witness Maria Villareal.  Plaintiff contends her testimony is inadmissible character evidence.  Defendant argues that because Villareal “was similarly situated” as plaintiff and it did not discriminate against Villareal, that supports its defense that it had no discriminatory intent when terminating plaintiff.   

Unlike “me-too” evidence (further discussed below with respect to defendant’s motion in limine No. 1), there is little authority on “not-me” evidence.  Assuming that “not-me” evidence can be admissible for the same reasons as “me-too” evidence, the court nevertheless will exclude Villareal’s testimony under Evidence Code section 352.  Me-too evidence may be admissible “to show intent or motive, for the purpose of casting doubt on an employer’s stated reason for an adverse employment action.”  (Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 760 (Johnson).)  Such evidence is admissible when it “sets out factual scenarios related by former employees of the defendant that are sufficiently similar to the one presented by the plaintiff concerning her own discharge by defendant.”  (Id. at p. 767.)      

Both “me-too” and “not-me” evidence can be persuasive evidence in cases based on immutable traits such as race or sex.  For example, in a sexual harassment case, “me-too” “evidence can prove discriminatory motivation and intent because it tends ‘to demonstrate hostility towards a certain group’ and to show employer’s ‘general attitude of disrespect toward his female employees and his sexual objectification of them.’ ”  (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 113 (Pantoja).) 

By contrast, disability discrimination often requires a deeper individualized inquiry into the nature of the employment and disability.  When determining a reasonable accommodation, “[e]ach inquiry is fact specific and requires a case-by-case determination.”  (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1593; see also McCullah v. Southern California Gas Co. (2000) 82 Cal.App.4th 495, 500 [affirming an order denying class certification for a disability discrimination case because “[t]he question of whether the employer must provide reasonable accommodation involves a case-by-case inquiry”].) 

In the present case, defendant has not shown that the circumstances of Villareal’s employment are or were sufficiently like plaintiff’s employment.  The record only includes the declaration of defendant’s director of human resources, who states: “Maria Villareal worked at the same employer (Massive Prints, Inc.) in the same building during the same basic time period as the Plaintiff, Ms. Hernandez.  Both employees were also hourly (nonexempt) employees.  The evidence in this case will show that Maria Villareal told Massive Prints, Inc. that she had a disability and that she needed reasonable accommodation.  The evidence in this case will show that Massive Prints, Inc., the employer did in fact accommodate Ms. Villareal, and that Ms. Villareal remains today a current employee, in good standing, of Defendant Massive Prints, Inc.”  (Herard Decl., ¶ 3.) 

At most, this evidence establishes that the circumstances of Villareal’s employment are similar enough to provide minimal probative value of defendant’s nondiscriminatory intent.  Establishing that Villareal’s disability and need for accommodation was like plaintiff’s situation will necessitate undue consumption of time that substantially outweighs any probative value.  This inquiry will also create a substantial danger of confusing the issues and undue prejudice.  It is far more complicated than merely proving, for example, that Villareal was also over 40 but was not terminated.  For Villareal’s testimony to have significant probative value, defendant would need to show that Villareal’s disability and need for accommodation was similar to (or more significant) than plaintiff’s.  That may require delving into medical records or even requiring other witnesses to testify about Villareal’s condition and need for accommodation.  Proving the necessary factual predicates that would make Villareal’s testimony admissible and more than minimally probative would require far more time than it is worth spending on the subject.  It would distract the jury from their proper focus on what happened to plaintiff.

Plaintiff also contends the court should exclude Villareal’s testimony on the grounds of “unfair surprise.”  To prevent such prejudice, trial courts may exclude evidence not timely disclosed in response to discovery.  (Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455; Crumpton v. Dickstein (1978) 82 Cal.App.3d 166, 172.)  Defendant first identified Villareal as a witness on the final day of discovery.  (Bakhtiar Decl., ¶¶ 9-11, 16, Ex. 6.)  Plaintiff had no fair opportunity to depose Villareal.  In its opposition, defendant responded to plaintiff’s other arguments, but gave no response to plaintiff’s argument and evidence that defendant did not timely disclose that Maria Villareal had knowledge of relevant facts and may or would be a witness. 

Plaintiff’s motion in limine No. 4 is granted as to witness Maria Villareal.  The court hereby excludes all testimony by Maria Villareal. 

DEFENDANT’S MOTIONS IN LIMINE

            1.         Order to “exclude evidence and testimony pertaining to purported                     injuries to non-plaintiff employees”

            Defendant Massive Prints, Inc. moves to exclude “any and all evidence, witness testimony, references, insinuations, suggestions, accusations, argument or any mention of any kind of purported, unsubstantiated injuries to, or other disabilities of, non-plaintiff employees.”  According to defendant’s counsel, at the October 13, 2022, final status conference, plaintiff’s counsel “advanced the claim that another employee who was terminated alongside Plaintiff in August 2017, had ‘a bone sticking out of her shoulder’ and yet was discharged.”  (Bloch Decl., ¶ 2.)

            Defendant contends that allowing references to this unnamed employee should be precluded because its probative value is substantially outweighed by an undue consumption of time and undue prejudice.  (Evid. Code, § 352.)  Defendant also argues that non-expert witnesses cannot offer opinions about the injuries of employees.  (Evid. Code, § 800.)

            In opposition, plaintiff identifies the non-party employee as Maria Rosales, who is on the joint witness list.  Rosales is allegedly part of plaintiff’s same protected class of age and disability.  Plaintiff’s counsel states, “Maria Rosales will testify that Massive Prints fired her together with Plaintiff after she informed her supervisor of her work-related injuries.”  (Bakhtiar Decl., ¶ 4.)  Plaintiff also contends defendant laid off Rosales at the same time as plaintiff.  Plaintiff argues that because Rosales was visibly injured, defendant knew she needed disability accommodations. 

Rosales’s testimony may be relevant as circumstantial evidence supporting plaintiff’s case under the same authority discussed above with respect to Maria Villareal’s testimony.  “[M]e-too evidence” can be “probative of” a defendant’s discriminatory “intent” and therefore admissible under Evidence Code section 1101, subdivision (b).  (Pantoja, supra, 198 Cal.App.4th at p. 114.)  “[C]ourts have routinely sanctioned use of this ‘me too’ type of evidence.”  (Johnson, supra, 173 Cal.App.4th at p. 760.)  But, like Villareal’s testimony, the court will also exclude Rosales’s testimony under Evidence Code section 352. 

Plaintiff has not shown sufficient evidence of the similarity between Maria Rosales’s and plaintiff’s disability, employment, and termination.  The only evidence (or rather offer of proof) in the record on this subject is plaintiff’s counsel’s statement, “I am informed and believe that at trial, Maria Rosales will testify that Massive Prints fired her together with Plaintiff after she informed her supervisor of her work-related injuries.”  (Bakhtiar Decl., ¶ 4.)  Rosales’s testimony would only be admissible and have more than minimal probative value, however, if plaintiff could show her disability and need for accommodation were similar to plaintiff’s.  That could require introducing medical records or other witnesses’ testimony about Rosales.  Permitting Rosales to testify could also open the door to evidence on even more collateral matters.  For example, defendant may seek to introduce evidence that Rosales had poor job performance, and that (rather than her age or disability) was why defendant included her in the layoff in 2017. 

As with Villareal, making Rosales’s testimony have more than minimal probative value would require far more time than it is worth spending on collateral matters.  It would distract the jury from the true issues in this case.  In other words, the probative value of such testimony “is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing of issues, or of misleading the jury.”  (Evid. Code, § 352.)

Defendant’s motion in limine No. 1 is granted as to witness Maria Rosales.  The court hereby excludes all testimony by Maria Rosales. 

            2.         Order excluding “expert testimony speculating as to whether                                defendant could have made different business decisions.”

            Defendant Massive Prints, Inc. seeks an order excluding expert testimony regarding “whether or not it was possible for defendant to have made a different business decision that would have allowed them to preserve Plaintiff’s job, instead of laying off plaintiff and other employees in August 2017.”  Defendant, however, does not specify which expert he seeks to exclude and precisely what testimony it contends is prohibited.

            In opposition, plaintiff identifies her expert Mark Falkenhagen and concedes that the opinion defendant seeks to excludes “falls within the scope of Mr. Falkenhagen’s designation.”  Plaintiff argues the motion is premature because Mr. Falkenhagen has not yet formed an opinion due to defendant’s alleged failure to produce certain financial documentation. 

            At this point, the court does not know what, if anything, Mr. Falkenhagen will state about defendant’s business decisions.  Based on this record, defendant’s motion is denied.

            3.         Order excluding “mention of specific transactions, and payer/payee                               information thereto”

            Defendant Massive Prints, Inc. seeks to exclude any evidence or mention “of specific, individual transactions, or the related payer/payee information, from Defendant’s General Ledger documents which span from 2014 to 2017.”  This general ledger is 16,000 pages and contains information about every payment or transfer of funds made by defendant during those years, including salary payments. 

            Defendant argues that going through individual transactions would have no probative value and is precluded by Evidence Code section 352.  Defendant also argues that disclosing this information would violate third parties’ privacy rights.

            Plaintiff contends that “evidence in Defendant’s general ledgers is essential in proving that Defendant’s termination was pretextual.”  She further contends that any privacy interests of third parties is outweighed by probative value of this information.

            The court grants defendant’s motion.  The probative value, if any, of testimony regarding any specific transaction in the general ledger is substantially outweighed by an undue consumption of time, of confusing of issues, and undue prejudice.  (Evid. Code, § 352.)  This order does not prohibit an expert witness from stating he or she has reviewed and considered the general ledger. 

            4.         Order excluding “mention of disparate impact on the basis of age and                           disability”

            Defendant Massive Prints, Inc. seeks to exclude “any mention of disparate impact on the basis of age or disability.”  Defendant does not, however, explain precisely what evidence it seeks to exclude.  For example, defendant does not identify any witness who may testify about this topic.  Defendant also does not identify, specifically or generally, what facts or circumstances it seeks to exclude.  The court cannot rule in this vacuum.  The motion is denied.

            5.         Order to exclude the testimony of Doctors Feiwell and Musher

            Defendant moves to exclude the testimony of Dr. Lawrence Feiwell and Dr. Gennady Musher.  Defendant argues they cannot testify because plaintiff did not designate them as retained experts and include an expert declaration as required under Code of Civil Procedure section 2034.210, subdivision (b), which provides: “If any expert designated by a party . . . is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under Section 2034.260.”      

“For retained experts and experts who are parties or employees of parties, the exchange must also include an expert witness declaration stating the general substance of the expected testimony and other matters.  Failure to provide an expert witness declaration or failure to adequately disclose the expert’s expected testimony may result in the exclusion of expert opinion.  But for a treating physician who is not ‘retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial’, no expert witness declaration is required, and the exclusion sanction is unavailable.”  (Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 139, citations and fn. omitted.) 

“[W]hat distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff’s injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion.  The contextual nature of the inquiry is implicit in the language of [former] section 2034, subdivision (a)(2), which describes a retained expert as one ‘retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action.’ ” (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35–36 (Schreiber).)  “A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff’s injuries and medical history because of the underlying physician-patient relationship.”  (Id. at p. 36.)

Plaintiff designated Drs. Feiwell and Musher as non-retained experts.  Defendant argues they do not qualify as non-retained experts because they did not treat plaintiff and instead served as Panel Qualified Medical Examiners (PQMEs) in plaintiff’s worker’s compensation proceeding.  But defendant fails to show plaintiff “retained” them.  The above authority does not mean that only a treating physician can be a non-retained expert.  The question, rather, is whether the expert was “a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action.”  (Code Civ. Proc., § 2034.210, subd. (b).)  For example, in Lee, no expert declaration was required for an expert because he “was not … a party, an employee of a party, or a retained expert.”  (Lee, supra, 5 Cal.App.5th at p. 638.)

Defendant presents no evidence that plaintiff retained these two doctors for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for trial of the action.  To the contrary, defendant acknowledges the doctors were PQMEs.  A PQME is a neutral evaluator assigned via an administrative proceeding.  (Lab. Code, § 4062.2, subds. (a-c).)  “[T]he administrative director” in the worker’s compensation proceeding assigns a panel of three evaluators, then “each party may strike one name from the panel.”  (Id., subd. (c).) 

Moreover, both parties have equal access to the medical evaluator.  (Lab. Code, § 4602.3.)  “All communications with a qualified medical evaluator selected from a panel … shall be in writing and shall be served on the opposing party.”  (Id., subd. (e).)  “Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited.”  (Id., subd. (g).)  If any party “retains” a PQME, it is the employer.  “The employer shall be liable for the cost of each reasonable and necessary comprehensive medical-legal evaluation obtained by the employee pursuant to Sections 4060, 4061, and 4062.”  (Lab. Code, § 4064(a).)  Plaintiff therefore was not required to serve an expert witness declaration for Dr. Feiwell or Dr. Musher under Code of Civil Procedure sections 2034.210, subdivision (b) and 2034.260. 

This conclusion also follows the California Supreme Court’s reasoning in Schreiber and the purpose behind the Civil Discovery Act’s provisions on expert discovery.  “The identity and opinions of a party’s retained experts are generally privileged unless they are going to testify at trial.”  (Schreiber, supra, 22 Cal.4th at p. 37.)  “By contrast, the identity and opinions of treating physicians are not privileged.  Rather, because they acquire the information that forms the factual basis for their opinions independently of the litigation, they are subject to no special discovery restrictions.”  (Id. at p. 38.)  “They can be identified early in the litigation through interrogatories, production of the plaintiff’s medical records.”  (Ibid.) 

The same is true of Drs. Feiwell and Musher.  Defendant acquired the reports by Drs. Feiwell and Musher at the same time plaintiff did.  Plaintiff never had the power to claim privilege over the experts’ identities, reports, or opinions.  Though Drs. Feiwell and Musher did not have a normal physician-patient relationship with plaintiff and did not treat her, the information they have was “ ‘acquired independently of the trial preparation activities of the side designating’ ” them.  (Schreiber, supra, 22 Cal.4th at p. 35.)

In its reply, defendant also contends these doctors should not be permitted to testify because “Dr. Musher and Dr. Feiwell provided initial reports that were done many months after Ms. Hernandez was laid off, and thus they have no percipient knowledge of her condition on August 29, 2017, the day she was laid off.”  (Reply, p. 3.)  The court will not grant the motion on this basis because defendant did not raise it until the reply.  Moreover, these two doctors are percipient witnesses because they examined plaintiff to evaluate the injury that constitutes her alleged disability.  That they did not examine her until later goes to the weight of the evidence, not its admissibility.    

Finally, defendant argues that any testimony by Drs. Feiwell and Musher about other doctors’ treatment of plaintiff constitutes inadmissible hearsay.  “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay.”  (People v. Sanchez (2016) 63 Cal.4th 665, 686.)  But “[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.”  (Id. at p. 685.)  Furthermore, experts can give their opinions about case-specific facts when there “is independent competent proof of those case-specific facts” (Id. at p. 684.)

The court will not exclude Drs. Feiwell and Musher from testifying on this basis.  The court cannot foresee whether they will relate case-specific hearsay that has not been independently proven.  Defendant may object on this basis during their examinations.  The court denies defendant’s motion in limine No. 5.

            6.         Order to “exclude information re loans and salary payments related to             defendant’s CEO”

Defendant moves to exclude “any and all evidence, testimony, references, insinuations, suggestions, accusations, argument or any mention of the specific transactions involving distributions to Defendant’s sole shareholder, Courtney Dubar, and loans and repayments made to Mr. Dubar.”  This motion thus seeks to exclude evidence of certain transactions among the 16,000 pages of documents from the 2014-2017 general ledgers discussed above with respect to defendant’s motion in limine No. 3. 

The court grants defendant’s motion in limine No. 6 for the same reasons as its motion in limine No. 3.  The probative value, if any, of testimony regarding specific transaction involving distributions, loans, or repayments to defendant’s sole shareholder Courtney Dubar is substantially outweighed by an undue consumption of time, of confusing of issues, and undue prejudice.  (Evid. Code, § 352.)  This order does not prohibit an expert witness from stating he or she has reviewed and considered the general ledger. 

Sealing

Defendant also seeks an order sealing this motion in limine. 

California Rules of Court, rule 2.550(d) provides:

A court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

Assuming defendant meets the first four elements, it does not meet the fifth.  It seeks to the seal portions of the moving papers revealing the details of its finances, including amounts stated in its general ledgers.  The less restrictive means of redaction (which defendant has already done in its publicly filed moving papers) suffices to achieve defendant’s interest in confidentiality.  These redacted details are not necessary for the court to rule on this motion in limine.  Determining whether this evidence should be excluded does not require knowing the amounts involved.  The court can and has made this determination based only on the publicly disclosed evidence.

Defendant’s motion to seal is denied.

IT IS SO ORDERED

Date:   April 14, 2023

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