Judge: Daniel M. Crowley, Case: 19STCV10729, Date: 2023-02-21 Tentative Ruling

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Case Number: 19STCV10729    Hearing Date: February 21, 2023    Dept: 28

Motion to for Leave to Augment Expert Witness List 

Having considered the moving papers, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On March 28, 2019, Plaintiff Jordan Nice (“Plaintiff”) filed a complaint against Defendant Home Depot, U.S.A., Inc. (“Defendant”).  Plaintiff alleges premises liability and negligence arising from an object falling from a forklift and on Plaintiff on May 12, 2017. 

Trial is set for July 25, 2023. 

PARTY’S REQUEST 

Plaintiff asks the Court to grant it leave to augment its expert witness list.  

LEGAL STANDARD 

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.)

CCP § 2034.620 states:

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.

(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.

(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.

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.)

DISCUSSION

            Plaintiff served a timely designation of expert witness information on January 16, 2023.  Plaintiff now seeks to designate Dr. Andrew Ghatan, to whom Plaintiff was referred on January 18, 2023.  Dr. Ghatan has recommended Plaintiff receive a nerve ablation for injuries Plaintiff claims in this matter.  The Court finds:

The court takes into account the extent to which the Defendant has relied on Plaintiff’s prior list of expert witnesses and finds that such reliance is not a factor here.  Plaintiff just saw Dr. Ghatan, and Plaintiff wishes to introduce his testimony.  Defendant and Plaintiff were both  unaware of Dr. Ghatan’s involvement until recently, so Defendant cannot be said to have relied on Dr. Ghatan’s not testifying. 

Defendant will not be prejudiced in maintaining its action or defense on the merits.

The court has determined that Plaintiff 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 and has sought leave to augment or amend promptly after deciding to call the expert witness and has 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.

CONCLUSION 

The Court grants Plaintiff’s motion, although the grant is conditioned on Plaintiff making Dr. Ghatan available for deposition within the next 30 days,  In addition, Defendant may have 14 days within which to designate any additional experts Defendant needs to respond to Dr. Ghatan’s anticipated testimony. 

Plaintiff is ordered to give notice of this ruling. 

Plaintiff is ordered to file a proof of service of this ruling with the Court within five days. 

The parties are directed to the header of this tentative ruling for further instructions.