Judge: Gary Y. Tanaka, Case: BC708163, Date: 2023-02-01 Tentative Ruling

Case Number: BC708163    Hearing Date: February 1, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                               Wednesday, February 1, 2023

Department B                                                                                                                            Calendar No. 6

PROCEEDINGS

Dan O’Leary, et al. v. The Dow Chemical Company, et al. 

BC708163

1.      Dan O’Leary, et al.’s Motion for Protective Order

2.      Larry J. Chilton, Esq.’s Application to be Admitted as Counsel Pro Hac Vice  

TENTATIVE RULING

            Dan O’Leary, et al.’s Motion for Protective Order is denied.

Larry J. Chilton, Esq.’s Application to be Admitted as Counsel Pro Hac Vice is continued.

Background

Plaintiffs filed their Complaint on May 31, 2018.  Plaintiffs’ First Amended Complaint was filed on October 15, 2018.  Plaintiffs allege the following facts.  From 1982 to 2000, Plaintiff Dan O’ Leary worked for The Boeing Company (“Boeing”) as an electrical journeyman at Boeing. (First Am. Compl. (“FAC”) ¶ 20.) Plaintiffs allege that, during this time, Dan O’Leary used or was exposed to certain solvents containing trichloroethylene (“TCE”), perchloroethylene, and other toxic chemicals that were manufactured by Defendants.  (FAC ¶ 21.)  Dan O’Leary sued the manufacturers and suppliers of the chemicals to which he was exposed, alleging causes of action for negligence, strict product liability, concealment, and breach of implied warranty. Dan O’Leary's wife Darla O’Leary alleges a claim for Loss of Consortium, and both Plaintiffs seek punitive damages.

Meet and Confer

Code Civ. Proc., § 2034.250 states: “(a) A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  The Court notes that Plaintiff submitted a declaration which purports to comply with CCP § 2034.250. (Decl., Scott Brust, ¶ 12.)  However, Plaintiff is also reminded of the language of Section 2016.040 which states: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Defendants BC Stocking Distributing and Petro Source Investments, Inc. (“Supplier Defendants”) contend that the specific issues related to their two designated experts at issue herein - Philip A. Edelman, M.D. and Michael Fischman, M.D., M.P.H., FACOEM – and whether their testimonies overlap were not adequately discussed during the meet and confer process.

Motion for Protective Order

Pursuant to Code of Civil Procedure § 2034.250(a), “a party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order.”  Id.   “The protective order may include, but is not limited to, one or more of the following directions: (3) That the exchange be made only on specified terms and conditions. (6) That a party or a side reduce the list of employed or retained experts designated by that party or side under subdivision (b) of Section 2034.210.”  Code Civ. Proc., § 2034.250(b)(3)(6).  Pursuant to Evidence Code § 723, “[t]he court may, at any time before or during trial of an action, limit the number of expert witnesses to be called by any party.”  

Plaintiffs move, pursuant to CCP § 2034.250, for the following orders: 1. An order limiting the number of retained experts designated by the Defendants; and 2. An order limiting the fees charged by all retained experts.  (Notice of Motion, page 1, lines 6-9.)

As to the Supplier Defendants, Supplier Defendants have adequately demonstrated that their testimonies are not duplicative and will not excessively overlap.  Supplier Defendants contend that Dr. Edelman will offer testimony regarding volitalization pertaining to mineral spirits. More specifically, Dr. Edelman will offer testimony that any benzene content in Supplier Defendants’ mineral spirits would have volatized once the mineral spirits were unsealed and would not be present when delivered to the jobsite.  However, Dr. Fischman will testify regarding whether the Supplier Defendants’ mineral spirits is generally medically capable of causing Mr. O’Leary’s Parkinson’s Disease.  Thus, while Dr. Fischman and Dr. Edelman may have some areas of overlap regarding foundational issues, their testimonies will not overlap in a manner that would be prejudicial to Plaintiffs.

As to Defendants CRC Industries, The Sherwin-Williams Company, and The Dow Chemical Company (“Exposure Defendants”), the motion is also denied.  Defendants collectively designated one neurologist, and one economist.  CRC and Dow collectively retained one industrial hygiene expert.  CRC and Sherwin-Williams jointly retained one epidemiologist.  Dow retained two independent experts - a toxicologist, David Dodge, and an epidemiologist, Dominik Alexander, Ph.D. Dow has adequately demonstrated that the expert opinions of these two individuals are not duplicative.  Mr. Dodge will opine based on the field of toxicology.  Dr. Alexander, an epidemiologist, will provide a distinct expert opinion as an epidemiologist.  Each of the experts will opine within their respective fields of expertise such as epidemiology, industrial hygiene, and toxicology.  

In addition, Plaintiffs request to limit the fee of retained experts is denied.  While the notice of motion does not specify whether this request applies to all experts, it appears that the motion is only directed to two experts - Michele Tagliati, M.D. and Brian Daly.  First, the Court notes that Plaintiff did not comply with CCP § 2034.470.

Code Civ. Proc., § 2034.470 states:

“(a) If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert.

(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. In any attempt at an informal resolution under Section 2016.040, either the party or the expert shall provide the other with all of the following:

(1) Proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.

(2) The total number of times the presently demanded fee has ever been charged and received by that expert.

(3) The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.

(c) In addition to any other facts or evidence, the expert or the party designating the expert shall provide, and the court's determination as to the reasonableness of the fee shall be based on, proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.

(d) In an action filed after January 1, 1994, the expert or the party designating the expert shall also provide, and the court's determination as to the reasonableness of the fee shall also be based on, both of the following:

(1) The total number of times the presently demanded fee has ever been charged and received by that expert.

(2) The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.

(e) The court may also consider the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination.

(f) Upon a determination that the fee demanded by that expert is unreasonable, and based upon the evidence and factors considered, the court shall set the fee of the expert providing testimony.

(g) 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 set the expert witness fee, 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.”

As demonstrated by the language noted above, the statute requires that notice be given to the experts.  In any event, Exposure Defendants have provided sufficient evidence to demonstrate the reasonableness of the fees of experts Michele Tagliati, M.D. and Brian Daly.  (Decls., Michele Tagliati, M.D. and Brian Daly.)

The Court is sympathetic to Plaintiffs’ arguments regarding the sheer number of experts that have been designated.  However, unfortunately, this is simply a by-product of the number of Defendants that Plaintiffs have chosen to name and serve.  In fact, in reviewing the expert designations, the Court, for the most part, believes that Defendants have done an adequate job of streamlining and coordinating the experts.  The Court believes that the number of experts could conceivably have been even greater had not Defendants coordinated together to streamline where possible.

Thus, Plaintiffs’ Motion for a Protective Order is denied.

Application to Appear Pro Hac Vice

Cal. Rules of Court, Rule 9.40 states, in relevant part:

“(d) The application must state:

(1) The applicant's residence and office address;

(2) The courts to which the applicant has been admitted to practice and the dates of admission;

(3) That the applicant is a licensee in good standing in those courts;

(4) That the applicant is not currently suspended or disbarred in any court;

(5) The title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and

(6) The name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record.

(e) An applicant for permission to appear as counsel pro hac vice under this rule must pay a reasonable fee not exceeding $50 to the State Bar of California with the copy of the application and the notice of hearing that is served on the State Bar.”

Moving party has failed to demonstrate that all parties, as well as the State Bar of California, have been provided notice of the hearing date. The proof of service of the Notice of Ruling, dated January 6, 2023, filed and served by Dow simply directs one to a website.  This does not provide sufficient information for the Court to determine whether proper notice was provided.

Defendant CRC Industries is ordered to give notice of this ruling.