Judge: Donald F. Gaffney, Case: Ridley v. La Font, Date: 2022-08-24 Tentative Ruling

TENTATIVE RULINGS:

Motion to Augment Expert Witness Designation

Defendant Tracie Souve (“Defendant”) moves to augment her expert witness designation.  For the reasons set forth below, the motion is GRANTED.

Defendant moves to add two additional retained experts: (1) Medical billing expert: Kathy Corona; and (2) Economist: David Weiner.  Pursuant to the Declaration of Amundson filed in support of the Reply, Defendant seeks to de-designate Mr. Gomez because he is unavailable to testify at trial. (Amundson Decl. ¶ 4.)

After the setting of a trial date, any party may demand “a mutual and simultaneous exchange” of a list of expert witnesses the parties “expect” to call as expert witnesses at trial.  (Code Civ. Proc. §§ 2034.210, subd. (a), 2034.260, subd. (b).)  Within 20 days after the initial disclosure of expert witnesses, parties who engaged in the initial exchange may submit a supplemental expert witness list containing the name and address of any person expected to offer an expert opinion on a subject to be covered by an opposing expert “if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.”  (Code Civ. Proc. §2034.280, subd. (a).)

The very purpose of expert designations is to allow the parties to assess whether to take the expert's deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area.  The rules of discovery contemplate two-way disclosure and do not envision that one party may sit back in idleness and savor the fruits which his adversary has cultivated and harvested in diligence and industry.  Mutual exchange of data provides some protection against this.  Late disclosure of experts frustrates the very purposes of the discovery statutes, and should be permitted, with appropriate safeguards and limits, only when necessary to avoid a miscarriage of justice.  (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147; City of Fresno v. Harrison (1984) 154 Cal.App.3d 296, 301.)

Pursuant to Code of Civil Procedure section 2034.610, subdivision (a)(1), on the motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to 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.

This motion shall be made a sufficient time in advance of the time limit for the completion of discovery (the 15th day before the date initially set for trial) to permit the deposition of any expert to whom the motion relates to be taken within that time limit.  (Code Civ. Proc. §§ 2034.610, subd. (b) and 2024.020, subd. (a).)  Under exceptional circumstances, the court may permit the motion to be made at a later time.  (Code Civ. Proc., § 2034.610, subd. (b).) 

This motion “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2034.610, subd. (c).) 

Additionally, pursuant to Code of Civil Procedure section 2034.620, the court shall grant leave to augment or amend an expert witness list 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.

(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.

The moving party should show evidence of reasonable diligence even though the party “failed to determine to call this witness earlier.”  (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1477-1478.) 

Factors a Court may consider in determining whether the opposing party will suffer prejudice include:  (1) the time in which the opposing party has to prepare for the new expert’s technical testimony; and (2) the opposing party’s reliance on the existing witness list, which may affect the opposing party’s time and opportunity to conduct expert discovery and respond to the expert testimony.  (Dickison v. Howen, 220 Cal.App.3d at 1478-1479.)  A Court may properly find no prejudice where the opposing party is given every opportunity to recover from any disadvantage caused by the surprise and has the ability to respond to the expert’s testimony.  (Id., at 1479.)  “The determination of prejudice…turned on the party’s ability to respond to the new testimony.”  (Id.) 

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to augment or amend expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., § 2034.630.) 

“The decision to grant relief from the failure to designate an expert witness is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of that discretion.”  (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.) 

The Judges Benchbook provides this Judicial Practice note:  “Many judges are liberal in granting leave to augment a list or amend a declaration…if there is still sufficient time for a deposition and there is no showing that an opposing party will be prejudiced.”  (Cal. Judges Benchbook Civ. Proc. Discovery § 23.38.)

There is no dispute that the parties timely exchanged their expert witness information to coincide with the original trial date of 11/2/20.  Defendant’s expert designation was served by her prior counsel 9/11/20 and only designated three retained medical experts.  (Guevara Decl., Ex. 2). Plaintiff’s expert designation set forth two retained experts: Mr. Avrit, a safety engineering and premises liability expert; and Mr. Donell, a property management expert. In addition, Plaintiff also identified treating physicians as non-retained experts.  (Guevara Decl., Ex. 8).  There is also no dispute that this motion is timely or that the parties attempted to meet and confer prior to the filing of this motion. 

However, all other attempts by Defendant to exchange expert witness information are untimely.  Defendant appears to concede this point as she argues in Reply that the proper remedy would have been to file a motion for leave to augment and Defendant also argues in Reply that the court should permit her to also include two additional experts that were identified in the untimely 3/22/21 and 6/3/22 designations.  Defendant’s argument that the stipulations between the parties permitted a re-designation of experts is unavailing as all but the 5/6/21 stipulation make clear that only the completion of expert depositions were being continued with the continued trial dates, and nothing else.  The 5/6/21 stipulation, for which trial was continued to 8/16/21, provided that all discovery and trial-related dates were continued with the new trial date.  ROA 118.

Because Defendant’s attempts to re-designate experts were untimely, Defendant now files the instant Motion. 

Defendant contends that the failure to designate the requested additional experts was a result of attorney mistake, inadvertence, surprise, or excusable neglect. While not much else is provided, there is certainly no evidence submitted by either party to suggest that the failure to designate a billing expert and economist was due to Defendant, herself.  The parties reference settlement discussions and the fact that they are $17,000 apart.  This difference may account for the need for these experts to comment on the reasonableness of the medical bills claimed by Plaintiff. Further, Defendant argues that experts were designated back in 2020, the trial in this matter has been continued to the current date of 10/31/22, and the case has developed since that time.  Again, not much detail is provided by defense counsel, but these assertions are likely true and undisputed by Plaintiff.  Case developments since 2020 include new trial counsel for Defendant, the settlement and subsequent dismissal of the La Font Defendants, ongoing settlement discussions between Plaintiff and defense counsel, and continued expert depositions.      

In addition, Plaintiff has known since early March 2021 that Defendant intended to designate Corona and Weiner. Defendant served a further expert designation on 5/4/22.  It is arguable whether Defendant should have sought relief much sooner as it appears unclear to the parties counsel, themselves, as to whether Defendant’s continued demands for expert designation based upon the continued trial dates were proper.  Plaintiff’s argument that Defendant should have brought this motion sooner rings hollow as Plaintiff’s own motion for protective order was filed approximately one week earlier, on 6/6/22. The parties disagreed on whether the demands and Defendant’s designations were proper, culminating in these dueling motions that were both filed in June of 2022. 

Further, trial in this matter is currently set for 10/31/22, and the parties still have time to designate these additional experts and complete their depositions prior to trial.  Moreover, it is unclear how much Plaintiff has relied on Defendant’s 2020 designation as the trial in this matter has been continued 8 times, with the deadlines to complete expert depositions extended to coincide with each new trial date, and Plaintiff makes no argument that she relied on the 2020 designation or that Plaintiff has even conducted any expert depositions.  Plaintiff only notes that Defendant took the deposition of Plaintiff’s expert, Mr. Avrit in January 2022. Although it should be noted that in Plaintiff’s motion for protective order, she alleges that her two expert depositions and the deposition of defense expert, Dr. Ludwig, have been completed. In any event, it is clear that all expert depositions have not been conducted or completed.

It would be extremely prejudicial for Defendant to have to go to trial without the requested experts based upon the fault of her counsel, and Plaintiff has not sufficiently established any prejudice in permitting the augmented designation.

Accordingly, Defendant’s motion is GRANTED, subject to the following conditions:

(1) Defendant shall serve Defendant’s augmented expert witness designation and declaration to include a medical billing expert and economist within 10 days;

(2) Defendant must make Corona and Weiner available immediately for deposition at a place and time mutually convenient for the witnesses and counsel, but no later than October 7, 2022, unless otherwise agreed to in writing between counsel;

(3) Plaintiff shall have leave to serve a notice of deposition on Defendant with an appropriate demand for production of documents by Corona and Weiner with seven calendar days’ notice before the scheduled deposition, and deponents shall appear and produce requested documents at the start of their deposition pursuant to the notice without the need for a subpoena;

(4) Plaintiff is granted leave to designate supplemental experts responding to Corona and Weiner’s designated testimony within 30 days from the date of the Court’s order granting leave to augment.

Defendant shall give notice.

Motion for Protective Order

Plaintiff Lena Ridley moves for a protective order quashing Defendant Tracie Souve’s demand for expert information.

In light of the court’s ruling granting Defendant’s motion to augment her expert witness designation, Plaintiff’s motion for protective order is DENIED as MOOT.

Defendant to give notice.