Judge: David J. Cowan, Case: 20STCV33002, Date: 2024-05-17 Tentative Ruling

Case Number: 20STCV33002    Hearing Date: May 17, 2024    Dept: 200

LOS ANGELES SUPERIOR COURT

WEST DISTRICT - BEVERLY HILLS COURTHOUSE

DEPT. 200

TENTATIVE RULING ON DEFENDANTS’ MOTION TO REOPEN DISCOVERY ON A LIMITED BASIS RE: RECENT SURGERY, OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE AT TRIAL CONCERNING THE SURGERY  

Nguyen, et al. v. Robertsons Transport, et al., Case No. 20STCV33002

Hearing Date: May 17, 2024, Time: 8:30 a.m.

INTRODUCTION

          Defendants seek to reopen discovery to take a further deposition of plaintiff Katherine Vargas-Moreno, have Vargas-Moreno re-examined by their expert, Dr. Paul Kaloostian and take the deposition of plaintiff’s surgeon, Dr. Stephen Kasimian.

          A Final Status Conference is scheduled for September 13, 2024 and trial is scheduled for October 14, 2024.  

BACKGROUND AND STATEMENT OF CONTENTIONS

On September 14, 2019, Vargas-Moreno sustained the injuries at issue.

On October 10, 2022, Dr. Kaloostian testified at his deposition that “the chronic cervical and lumbar degenerative disc disease…is unrelated to the subject accident.”

On April 17, 2023, Defendants received the March 16, 2023 report of Vargas-Moreno’s neurosurgeon, Dr. Ali Najafi, recommending surgery.

On April 23, 2023, when Defendants took the deposition of Vargas-Moreno, she had not undergone surgery on her lumbar spine. However, she testified that she was in the process of rescheduling surgery that had been scheduled that week.

On August 7, 2023, when the parties exchanged expert witness information, Dr. Kasimian was disclosed only as a non-retained treating physician who had not performed any surgery on Vargas-Moreno.

On August 25, 2023, Vargas-Moreno’s sister, Lelie Figueroa, testified Vargas-Moreno was scheduled to proceed with surgery.

August 28, 2023 was the discovery cut-off.

On September 21, 2023, Defendants learned Vargas-Moreno had undergone lumbar spine surgery on September 14, 2023.

On September 21, 2023, Plaintiffs requested Defendants agree to re-opening of discovery and to continue trial. The parties thereafter met and conferred during the rest of September as to this issue but were not able to reach any agreement.

Trial was earlier scheduled for September 26, 2023. According to Plaintiffs, both sides announced ready on September 26, 2023.

On January 22, 2024, Kaloostian prepared a supplemental report, after considering Dr. Kasimian’s records, confirming that his opinions had not changed and that there was “certainly no indication and no necessity for the L4-S1 decompression.”

On March 5, 2024, the parties represented that they were ready for trial when the case was assigned to Dept. 1 as Long Cause and trailed until assigned to a long cause courtroom.

On April 4, 2024, with the agreement of both sides, the undersigned at an initial trial setting conference scheduled a firm trial date for October 14, 2014 and a final status conference on September 13, 2024. Defendants raised the issue which is the subject of this motion and a hearing on the motion was scheduled.

On April 10, 2024, Defendants filed the motion. They contend there is good cause for each of their requests and that they would be unduly prejudiced without having the opportunity to conduct this discovery.

On April 25, 2024, Plaintiffs filed opposition to the motion. They contend trial has been continued three times already and that this request to re-open discovery is untimely.

On May 2, 2024, Defendants filed a Reply. They contend that trial will not have to be continued to conduct this discovery. They also now seek to depose Vargas-Moreno’s urologist, Dr. Justin Houman, concerning certain after-effects of the surgery, about which they just learned, and represent Plaintiffs are not opposed to at least that doctor’s deposition and of Vargas-Moreno on this issue only.

DISCUSSION

          CCP sec. 2024.050 empowers a court to reopen discovery after a new trial date is set. The primary factor to be assessed is the necessity and reasons for discovery. Courts, however, are also to consider any lack of diligence in seeking the discovery, the reasons why it was not completed previously, the likelihood that permitting the discovery will interfere with the trial date set and the length of time between past and present trail dates. 

          CCP sec. 2025.610(b) allows a court for good cause shown to grant a subsequent deposition.

          CCP sec. 2032.310 provides that a court may likewise for good cause shown grant a second physical exam.

          Defendants have shown good cause for each of the pieces of discovery which they wish to conduct. It is undisputed that having this sort of major surgery is highly significant in assessing the extent of damages, including as to Vargas-Moreno’s prognosis and in terms of the costs involved in her care – whether those be past special damages or future ones. In this trial involving only damages, not having this basic information would put Defendants at an unfair disadvantage, as well as create unnecessary uncertainties that could be addressed and potentially resolved before trial. The Court does not know why Vargas-Moreno scheduled the surgery when she did (four years after the accident), however, if it had been sooner, Defendants would have had this information before trial. Indeed, Plaintiffs do not seriously contend Defendants having this information is not significant. While it is true Defendants could have deposed Kasimian previously, it was not unreasonable for them not to have done so at that point when he had not conducted surgery. Similarly, while Kaloostian’s opinion is that the surgery was not needed due to the accident, that does not mean Defendants cannot find out why Kasimian’s opinion is otherwise.  Finally, Defendants should be able to know what Vargas-Moreno has to say about her injuries after the surgery and conduct their own IME. The true issue is the trial date.  

          It is unclear why Defendants waited some six months between when they met and conferred and filed this motion to address this concern. Regardless of when trial was to be scheduled, the same issue of the discovery cut-off having expired to be able to conduct this additional discovery concerning the surgery had already arisen. In addition, it could not have come as a surprise that Vargas-Moreno proceeded with surgery when she said she would and her doctor had recommended it – both prior to the cut-off. Hence, any difficulty in completing this discovery should fall on Defendants (unless there is some unreasonable refusal by Plaintiffs to cooperate.) Moreover, Defendants agreed to this trial date, knowing these facts, and after having previously represented to the Court that they were ready for trial, and cannot now reasonably contend otherwise. It would seem this discovery can be completed without moving trial. Defendants do not seek a continuance of trial. Plaintiffs assume trial would have to be continued to accommodate this extra discovery but do not explain why it could not be done within the current time prior to trial. While the Court understands this new information may impact the life care plan and expert testimony concerning same, the parties should address those issues now also to be ready for trial as scheduled.   

CONCLUSION

          For these reasons, the Court grants the motion, subject to the conditions that said further discovery, including related to the urology report, be completed by August 15, 2024, and the documents required in advance of a final status conference, including revised joint lists of trial exhibits and witnesses, be filed by August 30, 2024, as previously ordered. Defendants have essentially three months to do what they need to do. If they are unable to do so, trial will proceed as scheduled. In this way, Plaintiffs’ primary concern – that the trial will not be delayed further – is also thereby addressed.