Judge: Daniel M. Crowley, Case: 19STCV25808, Date: 2022-10-12 Tentative Ruling

Case Number: 19STCV25808    Hearing Date: October 12, 2022    Dept: 28

Priscilla Lim de Goma’s Motion for
Leave to De-Designate Retained Expert Ronald Fisk and Replacement Designation
of Retained Expert Marisa Corinne Chang, M.D

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

BACKGROUND

On July 14, 2019, Plaintiff Priscilla
Lim de Goma (“Plaintiff”) filed this action against Defendant Los Angeles
County Metropolitan Transporation Authority (“Defendant”) for motor vehicle
negligence.

On January 22, 2020, Defendant filed
an answer.

On June 24, 2022, Plaintiff filed a
Motion for Leave to De-Designate Retained Expert Ronald Fisk and Replacement
Designation of Retained Expert Marisa Corinne Chang, M.D., to be heard on October
12, 2022. On September 28, 2022, Defendant filed an opposition. On October 3,
2022, Plaintiff filed a reply.

Trial is currently set for December
12, 2022.

PARTY’S REQUESTS

Plaintiff
requests the Court grant leave to de-designate Dr. Ronald Fisk (“Fisk”) and
designate Dr. Marisa Corinne Chang (“Chang”) as an expert.

Defendant
requests the Court deny the motion.

LEGAL STANDARD

CCP
§2034.610 provides “(a) On motion of any party who has engaged in a timely
exchange of expert witness information, the court may grant leave to do either
or both of the following: (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.”

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. OR (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.”

DISCUSSION

Parties
designated their expert witnesses in January of 2022; Defendant inquired into
taking the deposition of Fisk, but Fisk unfortunately has suffered from a
broken back, making him unavailable for live deposition and trial for
approximately six months. He has agreed to appear for his deposition and trial by
Zoom. Plaintiff argues that due to Fisk’s inability to appear in person makes
him an inappropriate expert witness, and requests leave to replace Fisk with
Chang.

Fisk
has yet to be deposed as an expert, indicating that there is no additional
expense or prejudice to defendant. As early as April 2022, Plaintiff’s counsel
indicated they intended to de-designate Fisk and instead designate another
expert. On June 3, 2022, Plaintiff confirmed that they would be replacing Fisk
with Chang.

Given
Fisk’s back injury occurring after the expert designation date, the Court finds
that the failure to originally elect another expert was due to surprise.

Defendant
argues that the Court should deny the motion as Fisk is available for trial;
Fisk appeared in person during a trial on July 14, 2022. Defendant has served
Fisk with a trial subpoena. Fisk has confirmed he can and will appear in person
in trial. In Plaintiff’s reply, Plaintiff attached a declaration from Fisk,
indicating he would only provide deposition and trial testimony by Zoom. (Declaration
of Ronald Fisk ¶ 7.) The Court finds these appropriate grounds to de-designate
Fisk as an expert. However, because Defendant did not take Fisk’s deposition
earlier as they were under the impression Fisk would be designated an expert,
the Court grants leave for Defendant to take Fisk’s non-expert deposition.

Defendant
also argues that Dr. Isaac Regev (“Regev”) should be offered as a substitute
over Chang; Regev is one of Plaintiff’s treating neurologists and produced his
reports to Defendants years ago. Defendant’s expert has already relief upon the
reports of Fisk and Regev. If Regev is utilized as the new expert, Defendant
will not need to pay its expert to again review expert reports. However, if
Chang is designated, Defendant will both have to pay additional fees and wait
for its expert to conduct a new review. Plaintiff does not address this in
their reply, but the Court notes that Regev was already designated a
non-retained expert.

Based
on the above, the Court grants the motion. However, Plaintiff will need to pay
the reasonable cost of Defendant’s expert reviewing Chang’s findings. This includes
any fees for expedition of the expert’s review, should it be needed, given the
close proximity of trial.

CONCLUSION

Plaintiff
Priscilla Lim de Goma’s Motion for Leave to De-Designate Retained Expert Ronald
Fisk and Replacement Designation of Retained Expert Marisa Corinne Chang, M.D
is GRANTED.

Plaintiff
is granted leave to de-designate Fisk, and instead designate Chang as a
retained expert.

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.