Judge: Daniel S. Murphy, Case: BC701989, Date: 2022-10-10 Tentative Ruling

Case Number: BC701989    Hearing Date: October 10, 2022    Dept: 32

BACKGROUND

            This is a personal injury and wrongful death action filed by Plaintiffs Harold Figueroa ("Harold") individually and on behalf of the Estate of Juan Diego Figueroa ("Estate"), Ana Lopez ("Ana") individually and on behalf of the Estate, and Marcos Figueroa ("Marcos") (collectively, "Plaintiffs") against Defendants AT&T Corporation ("AT&T"); AT&T Mobility Wireless Operations Holdings Inc. ("AT&T Mobility"); All Access Equipment Rentals, Inc. ("All Access"); RBR Properties, Inc. ("RBR"); Vinculums Services, LLC ("Vinculums"); New Cingular Wireless PCS LLC ("Cingular"); JLG Industries, Inc ("JLG"); Joel Lupercio ("Lupercio"); Jorge Ceja ("Ceja"); Roberto Guerrero ("Guerrero") (collectively, "Defendants").

The operative pleading is the First Amended Complaint (''FAC") filed on September 6, 2018. The FAC asserts causes of action for (1) strict product liability-failure to warn, (2) negligence-product liability, (3) negligent entrustment, (4) negligent hiring and retention, (5) premises liability, (6) negligent provision of required safeguards, (7) negligence-peculiar risk of harm, (8) wrongful death, and (9) negligent infliction of emotional distress. The action stems from the death of Juan Diego Figueroa and injuries sustained by his brother, Marcos Figueroa, after a boom lift operated by Juan contacted a high voltage powerline.

On September 16, 2022, Defendants Vinculums Services, LLC, Joel Lupercio, Roberto Guerrero, Jorge Ceja, And AT&T Mobility, LLC filed the instant motion to augment expert list. Defendants seek to replace their safety expert, Gerald Fulghum, who was diagnosed with a medical condition and is no longer able to serve on this case. Defendants seek to replace Mr. Fulghum with Samuel Iler.

LEGAL STANDARD

“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. (2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.” (Code Civ. Proc., § 2034.610(a).) This motion must normally be made prior to the discovery cutoff, but under exceptional circumstances, the court may permit the motion to be made at a later time. (Id., subd. (b).)

In deciding the motion, the court must consider various factors: (a) the extent to which the opposing party has relied on the list of expert witnesses; (b) prejudice to the other party in maintaining its action; and (c) the reasonable diligence or excusable neglect of the party seeking the amendment. (Code Civ. Proc., § 2034.620(a)-(c).) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition and on any other terms as may be just. (Id., subd. (d).)

DISCUSSION

            Defendants had timely exchanged their expert witness list. (Delis Decl. ¶¶ 2-3, Ex. A, B.) Defendants seek to augment their expert list to add Samuel Iler. While Defendants filed this motion after the discovery cutoff, exceptional circumstances exist because Defendants could not have predicted that Mr. Fulghum would be diagnosed with a condition rendering him unable to serve on the case. In his declaration, Mr. Fulghum avers that “[f]ollowing a recent medical review, doctors have determined that I have lesions and swelling in the brain, and I am no longer able to serve in this matter or any other matter due to this condition.” (Delis Decl., Ex. D (Fulghum Decl.) ¶ 6.) Mr. Fulghum informed defense counsel of his condition on August 31, 2022. (Id., ¶ 7.) Defendants promptly filed this motion thereafter.

            Without a safety expert to testify on their behalf, Defendants would be severely prejudiced, as this case largely concerns safety standards and the hazards of powerlines. In opposition, Plaintiffs argue that they will be prejudiced because Defendants seek to provide new opinions at the eleventh hour after Mr. Fulghum provided damaging testimony during his deposition. However, Mr. Fulghum’s testimony may still be read or played during trial. Furthermore, Plaintiffs’ timeliness argument is based on the previous trial date of October 10, 2022. The trial has since been continued to February 2023. Defendants predict that Mr. Iler would be available for a deposition by the end of October. (Delis Decl. ¶ 7.) The Court finds minimal prejudice to Plaintiffs. Defendants have exercised diligence in making the expert exchange, and the diagnosis of Mr. Fulghum constitutes surprise justifying the amendment.

CONCLUSION

            The motion to augment expert list by Defendants Vinculums Services, LLC, Joel Lupercio, Roberto Guerrero, Jorge Ceja, And AT&T Mobility, LLC is GRANTED.