Judge: Daniel S. Murphy, Case: 21STCV10900, Date: 2023-04-03 Tentative Ruling

Case Number: 21STCV10900    Hearing Date: April 3, 2023    Dept: 32

BACKGROUND

            On March 22, 2021, Plaintiff Randall Stewart initiated this action against Defendants Los Angeles Police Department, City of Los Angeles, County of Los Angeles, and Bryan Dameworth. The operative Second Amended Complaint, filed January 18, 2023, alleges (1) battery, (2) assault, (3) battery by peace officer, (4) negligent hiring, (5) negligence, (6) negligent use of deadly force, (7) intentional infliction of emotional distress, and (8) violation of the Bane Act. Plaintiff alleges that he was attending a protest on May 30, 2020, in Los Angeles when Officer Dameworth fired a rubber bullet, striking him. (SAC ¶¶ 10-12.) The incident allegedly left Plaintiff with severe injuries and continued pain and suffering (Id., ¶ 30.)

            On January 4, 2023, Dr. Barry Ludwig performed an independent medical examination (IME) of Plaintiff. Plaintiff subsequently sought to depose Dr. Ludwig and obtain certain documents. On February 21, 2023, Defendant City of Los Angeles filed the instant motion for protective order. Defendant does not dispute Plaintiff’s right to take Dr. Ludwig’s deposition but argues that the deposition cannot take place until the time for expert discovery.

LEGAL STANDARD

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (Code Civ. Proc., § 2025.420(a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Id., subd. (b).) “The issuance and formulation of protective orders are to a large extent discretionary.” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316.) “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Id. at p. 318.)

DISCUSSION

            “After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses . . . .” (Code Civ. Proc., § 2034.210.) “On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list.” (Id., § 2034.410.) “Code of Civil Procedure section 2034 prescribes a detailed legislative scheme for discovery of expert witnesses, including parties. It establishes the times and conditions for such discovery.” (County of L.A. v. Superior Court (1990) 224 Cal.App.3d 1446, 1456.) Under Section 2034, “expert witnesses may be deposed only on receipt of an expert witness list.” (Ibid.)

            A party who submits to an IME may subsequently demand: (1) “A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner;” and (2) “A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.” (Code Civ. Proc., § 2032.610(a).) “[A] copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.” (Id., subd. (b).) “[T]he protection for work product . . . is waived, both for the examiner’s writings and reports and to the taking of the examiner’s testimony.” (Id., subd. (c).)

            Defendant relies on Section 2034 and County of L.A. to argue that while Plaintiff is entitled to take Dr. Ludwig’s deposition, he cannot do so before the time for expert exchange. Plaintiff relies on Section 2032.610 to argue that he is entitled to take Dr. Ludwig’s deposition notwithstanding the timing requirements of Section 2034.

            Although Section 2032.610 waives the work product privilege as to an examiner’s deposition, it is silent on the timing of the deposition. Nothing in Section 2032 overrides the legislative scheme imposed for expert discovery. (See County of L.A., supra, 224 Cal.App.3d at p. 1456.) Plaintiff does not cite any authority for the proposition that the deposition of a medical examiner may take place before the time normally prescribed for expert discovery. In Kennedy v. Superior Court (1998) 64 Cal.App.4th 674, 679, the court held that withdrawing an expert and dubbing him a consultant does not protect him from being deposed if he is a medical examiner under Section 2032. However, even in that case, the deposition of the medical examiner would have taken place during the time for expert discovery, not before.

            Defendant has otherwise complied with Section 2032 by providing a copy of Dr. Ludwig’s report. (See Lippold Decl. ¶ 4.) Plaintiff acknowledges that Dr. Ludwig “issued a report setting out the details of his examination and his diagnoses, prognoses, and conclusions.” (Opp. 4:16-17.) However, Plaintiff has also demanded all expert disclosure reports prepared by Dr. Ludwig in the past 5 years, all independent and defense medical examination reports created by Dr. Ludwig while working with Defendant’s counsel, and all reports by Dr. Ludwig for patients with the same medical conditions as Plaintiff. (Lippold Decl. ¶ 11, Ex. E.) Section 2032 requires production of the reports and conclusions related to Plaintiff’s IME. Plaintiff cites no authority interpreting “writings and reports” as used in Section 2032 to mean any and all reports related to any case.

CONCLUSION

            Defendant’s motion for protective order is GRANTED. Dr. Barry Ludwig is not to be deposed until the time for expert discovery. The subpoena for records is quashed. Sanctions are denied as the parties acted with substantial justification.