Judge: Daniel M. Crowley, Case: 19STCV20224, Date: 2022-12-22 Tentative Ruling

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Case Number: 19STCV20224    Hearing Date: December 22, 2022    Dept: 28

Motion for a Protective Order to Limit the Number of Plaintiff’s Retained Expert Witnesses

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

This is a personal injury action arising from an August 16, 2018 accident that occurred at a construction site.

On June 10, 2019, Plaintiff Joel Benjamin Fuentes filed a complaint (“Plaintiff”).

On August 7, 2019, Plaintiff filed a first amended complaint (“FAC”) against Defendants Trencore Plastering, Inc, Brix Masonry, Inc., Trencore and Brix, Jose Quintana, and Does 1 through 100, inclusive.  The FAC is for damages for personal injuries for negligence.

On September 13, 2022, Defendants, Trencore Plastering, Inc. and Jose Quintana (collectively “Defendants”), filed an ex parte application for a protective order to limit Plaintiff’s expert witnesses prior to the commencement of expert discovery, on in the alternative, for an order shortening time to have heard a motion to continue trial.

On September 14, 2022, the Court denied the ex parte application. (Minute Order 09/14/2022.)

On September 15, 2022, Defendants filed a motion for a protective order to limit the number of retained expert witnesses designated by Plaintiff.

On September 19, 2022, Defendants filed an ex parte application for an order to advance the hearing date on their motion for a protective order to limit the expert witnesses designated by Plaintiff from December 22, 2022 to the first available on the Court’s calendar.

On September 20, 2022, the Court denied the ex parte application. (Minute Order 09/20/22.)  On the Court’s own motion, the Court continued the jury trial scheduled for October 28, 2022 to February 1, 2023. (Ibid.)

On December 9, 2022, Plaintiff filed an opposition to Defendants’ motion for a protective order to limit the number of Plaintiff’s retained expert witnesses.

No reply has been filed.

Trial is set for February 1, 2023.

PARTY’S REQUESTS 

            Defendants request for a protective order to limit the number of retained expert witnesses designated by Plaintiff, pursuant to CCP §§2034.250 and 2019.030, and Evidence Code §723 “on the grounds that Plaintiff has designated multiple retained expert witnesses for trial to cover identical topics, including three retained neurologists and two retained neuro-radiologists to testify regarding Plaintiff’s medical injuries.” (Motion for a Protective Order.)

            Defendants also request to continue the trial date in this matter to allow for the Court to rule on Defendants’ motion for a protective order and to allow the parties to complete expert discovery based on the Court’s ruling on the motion, pursuant to CRC rule 3.1332 “on the grounds that good cause exists to continue the trial date due to the Defendants’ pending motion for a protective order and the Defendants’ inability to have their motion heard before the current trial date of October 28, 2022.” (Ibid.)

LEGAL STANDARD 

            Under CCP § 2019.030(a), the court must restrict the frequency or extent of use of discovery if “[t]he discovery sought is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive” or “[t]he selected method of discovery is unduly burdensome or expensive.”  Such an order may be made on a motion for a protective order by a party or affected person, which must be accompanied by a meet and confer declaration.  (CCP § 2019.030(b).) 

            Further, under CCP § 2034.250, a party who has been served with a demand to exchange information concerning expert trial witnesses, may promptly move for a protective order accompanied by a meet and confer declaration.  (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 419.)  CCP § 2034.250(b) authorizes a protective order that directs a party to reduce the list of employed or retained experts. The party seeking the protective order to stay discovery has the burden of showing good cause for the order sought.  (Fairmount Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) 

            Lastly, Evidence Code §§ 352 and 723 pertain to the Court’s discretion to exclude evidence whose probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice and mislead the jury and to limit the number of expert witnesses called by a party, respectively. 

DISCUSSION 

            Here, Defendants contend Plaintiff’s retained experts should be limited to one neurologist and one neuroradiologist. According to Defendants, Plaintiff designated three treating neurologists (Dr. Fisk, Dr. Nikolskaya, and Dr. Nudleman) and two neuroradiologists (Dr. Chaudhry and Dr. Gul) as retained expert witnesses.

            Defendants contend good causes exists pursuant to CCP §§2019.030 and 2034.250, and Evidence Code §723, for the Court to issue a protective order to prevent unreasonably cumulative and duplicative expert discovery. Also, Defendants contend good cause exists pursuant to Evidence Code §352 for the Court to issue a protective order to prevent gamesmanship and prejudice to defendants.

            In opposition, Plaintiff contends that there are not two neuroradiology experts. Dr. Chaudhry is Plaintiff’s only retained, designated neuroradiologists. Dr. Gul (Dr. Chaudhry’s wife) is a rheumatologist and Plaintiff’s Expert Designation listed her out of caution regarding foundation. Plaintiff also opposes Defendants’ argument that Plaintiff has three cumulative neurologists. Dr. Fisk, for example, is a neurologist MD and has a PhD in neuroscience. Dr. Fisk treated the Plaintiff in 2019, 2021, and 2022, and prescribed three MRIs of the brain and medicine for headaches. Dr. Nudleman is a neurologist trained in electromyography and electroencephalography.  Dr. Nudleman also treated Plaintiff and had diagnosed Plaintiff with post-concussion symptoms and TBI. Lastly, Dr. Nikolskaya is a neurophysiologist and treated Plaintiff’s droopy eye. Dr. Nikolskaya continues to treat Plaintiff and recently re-evaluated Plaintiff’s condition.

            Based on the following, Defendants’ motion is denied.

            The Court finds the meet and confer requirement has been satisfied as Defendants’ counsel has attached proof of email communication with Plaintiff’s counsel concerning this matter. (McIntyre Decl. ¶ 8; Exhibit “B”.)

            The Court also finds that Evidence Code §§ 352 and 723 are authority for excluding evidence at trial through evidentiary objections or in limine motions. These provisions are not authority to issue a discovery order that would exclude or limit expert witnesses during discovery. As such, there are no grounds for Defendants to make the objection under Evidence Code §§ 352 and 723.

            The Court notes that the Legislature did not provide for parties to make objections to demands for exchanges of experts, such as Defendants’ objection that Plaintiffs’ experts are cumulative under Evidence Code section 352. (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1112.)  Instead, the Legislature enacted CCP § 2034.250, which provides that a party who has been served with a demand to exchange information concerning expert trial witnesses, may promptly move for a protective order. (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 419.) CCP § 2034.250(b) authorizes a protective order that directs a party to reduce the list of employed or retained experts.  The party seeking the protective order to stay discovery has the burden of showing good cause for the order sought.  (Fairmount Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) 

            While Defendants move pursuant to CCP § 2034.250, the Court finds that Defendants have failed to show good cause for limiting the number of retained expert witnesses designated by Plaintiff.  The fact that Plaintiff’s designation includes three retained neurologists is insufficient to demonstrate that they will indeed be offering cumulative testimonies given their differences in experience, expertise, and treatment. Dr. Frisk is a neurologist MD and has a PhD in neuroscience. Dr. Frisk started treating the Plaintiff in 2019, 2021, and 2022, and prescribed three MRIs of the brain and medicine for headaches. Further, Dr. Nudleman is a neurologist trained in electromyography and electroencephalography. Dr. Nudleman also treated Plaintiff and had diagnosed Plaintiff with post-concussion symptoms and TBI. Lastly, Dr. Nikolskaya is a neurophysiologist and treated Plaintiff’s droopy eye. Dr. Nikolskaya continues to treat Plaintiff and recently re-evaluated Plaintiff’s condition. Defendants’ concern that these witnesses will offer unreasonably cumulative testimonies is speculative when Defendants have yet to depose them. Lastly, the Court finds that Plaintiff does not have two neuroradiology experts. Dr. Chaudhry is Plaintiff’s only retained, designated neuroradiologists.

            Defendants’ request to continue the trial date was based on Defendants’ inability to have their motion heard before the trial date of October 28, 2022. However, the Court on its own motion had continued the trial scheduled for October 28, 2022 to February 1, 2023.

            For these reasons, the Court DENIES Defendants, motion for a protective order to limit Plaintiff’s retained expert witnesses and to continue the trial date.

CONCLUSION 

            Defendants’ motion is DENIED.

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the 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.