Judge Audra Mori, Case 21STCV10152 2022-11-14 Tentative Ruling

Plaintiffs Kevin Gomez (“Gomez”) and Heidi Keller (collectively, “Plaintiffs”) filed this action against defendants Edwin Antonio Manuel Espinoza and C & W Facility Services, Inc. (collectively, “Defendants”) for damages arising out of a motor vehicle accident.

At this time, Defendants move for an order granting leave to augment their expert witness list to add the name of Jacqueline Bloink (“Bloink”), MBA, CFE, a medical billing expert as a retained expert.

Defendants assert they timely designated their experts on July 25, 2022, listing an orthopedic surgeon and an accident reconstruction expert. Defendants provide they deposed Plaintiffs’ expert witness, Anthony A. Virella, M.D. (“Virella”), a neurosurgeon, on September 14, 2022, who was designated to “issues of causation, damages, including but not limited, to the reasonableness of medical care (past and future) and the spinal cord aspects of plaintiff’s injuries.” (Mot. at p. 1:14-17.) Defendants assert that during his deposition, Virella opined not only on the reasonableness of Gomez’s medical care, but also on the reasonableness of Gomez’s medical costs, including costs beyond those provided by a neurosurgeon. Defendants assert they now seek to augment their expert designation to add a medical billing expert to address the issue of the reasonableness of Gomez’s medical costs based on Virella’s unanticipated testimony. Plaintiffs oppose the motion, and Defendants filed a reply.

CCP § 2034.610 governs motions to augment expert witness lists. A party who has engaged in a timely exchange of expert witness information may move to add the name and address of a subsequently retained witness or to amend the statement of the testimony a previously designated expert is expected to give. The motion must be accompanied by a declaration showing a reasonable and good faith attempt at an informal resolution of each issue presented. (CCP §2034.610.)

The court shall grant leave to augment or amend an expert witness list or declaration 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.

(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.

(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:

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

(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.

(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.

Notably, granting or denial of relief in these cases lies within the court's sound discretion, and is subject to appellate review only for abuse of discretion. (Bonds v. Roy (1999) 20 Cal.4th 140, 149.)

Here, Defendants argue that Virella’s testimony constitutes mistake, inadvertence, surprise, or excusable neglect, and that Defendants could not in the exercise of reasonable diligence have determined to call a medical billing expert. Defendants contend that while it was arguably reasonably anticipated that Virella would opine on the cost of the spine surgery allegedly needed by Gomez, Defendants could not have anticipated that Virella would offer testimony regarding the reasonableness of all of Gomez’s medical billing costs from a variety of medical specialists. Defendants assert this issue became apparent only after defense counsel finished questioning Virella, and Plaintiffs’ counsel began to ask questions about the entirety of Gomez’s medical costs. Further, Defendants assert that Plaintiffs will not be prejudiced by the granting of this motion because Plaintiffs already anticipated they would call an expert to opine on medical billing.

Plaintiffs, in opposition, argue that Defendants have failed to comply with the requirement to augment their expert witness list because Defendants were aware of the necessity of Plaintiffs’ expert to opine on the necessity and reasonableness of the cost of medical treatment when Virella was designated on July 22, 2022. Plaintiffs contend that Defendants failed to then act diligently in designating expert witnesses. In addition, Plaintiffs argue they will be prejudiced if the motion is granted because Plaintiffs will be forced to spend additional sums to prepare and depose the additional expert.[1]

Plaintiffs in their expert designation provided regarding Virella, “Dr. Virella will provide testimony regarding the issues of causation, damages, including but not limited, to the reasonableness and necessity of medical care (past and future) and the spinal cord aspects of plaintiff’s injuries.” (Mot. Exh. C; Opp. Exh. B.) While the expert designation states that Virella will testify regarding issues of damages, including the reasonableness and necessity of medical care, it is conceivable that Defendants did not anticipate based on this designation that Virella would be opining about the reasonableness of a variety of Gomez’s medical costs. Plaintiffs do not dispute that Virella testified as to the reasonableness of charges for care provided by other medical providers, including the reasonableness of charges for MRIs, for outpatient surgery centers for epidural injections, for a pain management doctor, for a nerve conduction study, for physical therapy, and for various consultations and office visits. (Mot. at p. 5:4-12.) Consequently, Defendants’ evidence shows that they could not have determined the need to call an expert witness to opine on the reasonableness of the entirety of Gomez’s medical costs.

Moreover, even if Defendants could have anticipated that Virella would opine as to the entirety of Gomez’s medical costs based on the statement that Virella would testify regarding Gomez’s damages, defense counsel’s declaration establishes that the failure to earlier designate Bloink was due to mistake, inadvertence, surprise, and excusable neglect. (Mot. Mannshahia Decl. ¶13.) Defendants complied with their initial disclosure obligations, promptly met and conferred with Plaintiffs and sought leave to amend their expert witness list, and there is no evidence that Defendants engaged in gamesmanship in failing to designate Bloink. Furthermore, while Plaintiffs contend that they will be prejudiced if the motion is granted, trial is set for more than one month after this hearing, and Defendants have agreed to make Bloink immediately available for deposition, such that Plaintiffs will have adequate time to depose Bloink. Although Plaintiffs further argue they will be forced to spend additional sums in deposing Bloink, Plaintiffs provide no details regarding what such costs would entail as to establish that this alone warrants denying the motion.[2]

Based on the foregoing, Plaintiff’s motion for leave to augment his expert witness list designation is granted. Plaintiff is to make Bloink immediately available for deposition.

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiffs further argue that Defendants’ motion is untimely under CCP § 2024.030, which requires motions concerning expert discovery be heard on or before the 10th day. At the time Plaintiffs filed their opposition, this matter was set for trial on November 16, 2022; however, pursuant to Plaintiffs’ request, the trial date was continued to January 4, 2023. (Min. Order, Nov. 2, 2022.) Thus, as Defendants argue in reply, the motion now conforms to the timing requirements of CCP § 2024.030. Further, any prejudice that would be caused by hearing a motion of this nature less than 10 days before trial has been ameliorated. According to Defendants, expert witness discovery was still ongoing as of November 4, 2022.

[2] Plaintiffs do not dispute that Defendants previously offered to pay for Plaintiffs’ deposition of Defendants’ medical billing expert, but Plaintiffs did not agree to the offer.