Judge: George F. Bird, Jr., Case: BC681477, Date: 2023-02-10 Tentative Ruling

Case Number: BC681477    Hearing Date: February 10, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

             Plaintiffs are Marissa Kelly and Caroline Kelly (“Plaintiffs”), individually, and as the successors in interest of their brother, decedent George M. Kelly. The Fourth Amended Complaint states that George M. Kelly, a minor, suffered from Chronic Granulomatous Disease (“CGD”) which is a disorder of the leukocyte function which left George M. Kelly imuno-compromised. (Fourth Amended Complaint (“FAC”), ¶ 20.) As a result of his condition, George M. Kelly suffered from repeated infections and was hospitalized frequently. (FAC, ¶ 22.) Defendant Children’s Hospital Los Angeles (“Defendant” or “CHLA”) is a health services provider where George M. Kelly received three bone marrow transplants in a clinical trial developed by Bellicum. (FAC, ¶¶ 5, 43.)

            In 2014, Bellicum, a company engaged in the manufacture, production, packaging, marketing, sale, and distribution of pharmaceutical protocols, began a study titled “Phase II Extension Study of CaspaCIDe T Cells (BPX-501) From an HLA-partially Matched Family Donor After Negative Selection of TCR ab+T Cells in Pediatric Patients Affected by Hematological Disorders.” (FAC, ¶¶ 6 footnote 2, 68.) Bellicum developed a protocol (the “Bellicum Protocol”) which was a “T-cell depleted” transplant procedure. (FAC, ¶ 25.) Defendant hosted the clinical trial of the Bellicum Protocol and BPX-501, and George M. Kelly participated in the study. (FAC, ¶¶ 6, 8.)

            Plaintiffs allege that Defendant failed to disclose that the Bellicum Protocol was strictly experimental, that a waiver was required to allow George M. Kelly to receive the transplant, or that the Bellicum Protocol did not comply with the procedures for a Haplo transplant in the transplant community. (FAC, ¶¶ 8, 30.) 

            George M. Kelly underwent three bone marrow transplants in accordance with the Bellicum Protocol and all the transplants failed. George M. Kelly died on October 30, 2016, from encephalitis, Disseminated Fungal Disease, Chronic Granulomatous Disease, and Renal Failure. (FAC, ¶ 37.) Plaintiffs allege that Defendant’s actions were a direct cause of George M. Kelly’s death. (FAC, ¶ 139.)

II.       MOTION FOR PROTECTIVE ORDER

A.    Defendant filed the Motion for Protective Order on January 13, 2023.

            Defendant argues that Reena Killen, R.N. (“Ms. Killen”) was deposed on May 8, 2019, in her capacity as Person Most Knowledgeable at CHLA regarding the Bellicum Protocol and informed consent of George M. Kelly for the Bellicum Protocol. Defendant argues that a second deposition of Ms. Killen in her capacity as an individual is unreasonably cumulative or duplicative and the burden, expense, and intrusiveness of the deposition outweighs the likelihood that the deposition will lead to the discovery of admissible evidence. (See Code Civ. Proc., § 2017.020, subd. (a); Code Civ. Proc., § 2019.030, subd. (a).)  Defendant argues that Ms. Killen was not involved in the clinical care of George M. Kelly, so her deposition is unlikely to lead to any admissible evidence. Finally, Defendant states that Ms. Killen is unavailable until mid-March at the earliest because she is on medical leave after undergoing surgery.

B.     Defendant filed a Notice of No Opposition on February 3, 2023.

Under Code of Civil Procedure section 1005, subdivision (b), an opposition to a protective order must be filed and served at least nine court days before the hearing. On February 3, 2023, five court days before the hearing, Defendant filed a Notice of No Opposition and requested that the Court grant the protective order and prevent Plaintiffs from deposing Ms. Killen again.

C.     Plaintiffs filed an opposition on February 2, 2023.

            Because the court has discretion to consider late papers, and because Defendant was able to file a responsive reply before the hearing, the Court will consider the tardy opposition. (Cal. Rules of Court, rule 3.1300, subd. (d).)

            The Court notes that Plaintiffs have filed late oppositions to the Motion for Summary Judgment as to Bellicum, the Motions to Compel Discovery and Deem Requests for Admission as admitted, and now this opposition to the Motion for a Protective Order. Plaintiffs are encouraged and review the filing deadlines under Code of Civil Procedure section 1005. Though the Court prefers to consider the late papers and dispose of motions on their merits, Plaintiffs risk having their papers not considered simply by failing to file them in a timely manner.

            Plaintiffs argue that Ms. Killen has sent emails and is listed on approximately 600 documents related to the care of George M. Kelly. Plaintiffs state that many of the documents involving Ms. Killen were given to Plaintiffs on January 24, 2023, which is well after the original deposition of Ms. Killen on May 8, 2019. Plaintiffs state that the deposition of Ms. Killen regarding the documents is crucial to understanding the interrelationship between Dr. Neena Kapoor, Defendant, and Bellicum. Plaintiffs argue that they have the right to depose Ms. Killen under Code of Civil Procedure section 2025.610, subdivision (c).

            Plaintiffs also state they have no issue waiting for Ms. Killen to be back from medical leave before taking her deposition.

D.    Defendant filed a reply on February 3, 2023.

Defendant argues that the documents which have Ms. Killen’s name on them demonstrate her involvement as the Clinical Research Coordinator at CHLA for the Bellicum Protocol and Plaintiffs already deposed Ms. Killen in her capacity as the Person Most Knowledgeable at CHLA regarding the Bellicum Protocol and informed consent of George M. Kelly for the Bellicum Protocol. Defendant argues that the documents do not demonstrate any new or different involvement by Ms. Killen and the documents simply confirm what Ms. Killen already attested to. Defendant states that the extent of Ms. Killen’s role was as a witness to the informed consent discussion and input the patient’s medical data into the format requested by Bellicum, which were both discussed at the prior deposition.

Defendant also argues that, by waiting for Ms. Killen to return from medical leave, her deposition would fall in late March or early April which would prejudice all parties and delay expert testimony.

III.       LEGAL STANDARDS

            Once a party has taken the deposition of any natural person, no party may take a subsequent deposition of that deponent unless the court grants leave to take a subsequent deposition on a showing of good cause. (Code Civ. Proc., § 2025.610. subds. (a) and (b).) This finding of good cause to have a secondary deposition does not apply when the person was examined as a result of that person’s designation to testify on behalf of an organization. (Code Civ. Proc., § 2025.610. subds. (c)(1).)     

            “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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) If the court chooses to issue a protective order, Code of Civil Procedure section 2025.420, subdivision (b), provides a non-exhaustive list of orders the court can issue.

            The court shall limit discovery if it determines that “the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.020, subd. (a).) The court also shall restrict the frequency or extent of discovery if it determines either of the following: “(1) The discovery sought is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc., § 2019.030, subd. (a).) The burden is on the party seeking the protective order to demonstrate good cause. (Fairmont Ins Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

IV.       DISCUSSION

            When weighing the burden, expense, and intrusiveness of the deposition of Ms. Killen against the likelihood that the information sought will lead to discovery of admissible evidence, the Court finds that the burden does not clearly outweigh the likelihood of discovering admissible evidence.

            There is always some burden and expense in conducting any deposition. Depositions require the investment of time and attorney’s fees are incurred for all parties. Defendant has not demonstrated an excessive burden or expense beyond that which is normally experienced when taking a deposition. As to intrusiveness, Ms. Killen has been designated as the person most knowledgeable regarding the Bellicum Protocol and informed consent of George M. Kelly. Ms. Killen has been held out as having critical knowledge about the central issues of this case and any intrusiveness is warranted.

            When analyzing the likelihood that this deposition will lead to admissible evidence, Ms. Killen is a critical, material witness. Her first deposition was held on May 8, 2019, before Plaintiffs’ counsel had received thousands of documents in discovery and an estimated 600 documents bearing the name of Ms. Killen. (Decl. of Lisa Fisher, counsel for Plaintiffs, ¶¶ 5, 6.)  The Court finds it extremely likely that this deposition could lead to more admissible evidence in this case as Ms. Killen is a witness with knowledge that goes to the core of this action and Plaintiffs now have significantly more documents and information to question Ms. Killen about. On the balance of the factors, the Court does not find that the burden clearly outweighs the likelihood that the deposition will lead to admissible evidence.

            The Court also does not find that this deposition is unreasonably cumulative or duplicative. When Ms. Killen was first deposed, Plaintiffs did not have a significant number of documents which demonstrated the involvement of Ms. Killen. Though there may be some duplicative questions or inquiries from the prior deposition, it is not unreasonably cumulative or duplicative to allow Plaintiffs to reexamine Ms. Killen in light of the massive number of documents produced since 2019.

            Defendant has argued that Ms. Killen is unavailable for deposition because she is out on medical leave. Though Plaintiffs do not object to taking Ms. Killen’s deposition until after she returns from medical leave, Defendant argues that waiting until late March or early April for Ms. Killen’s deposition would prejudice the parties. The Court agrees that delaying the deposition of Ms. Killen would prejudice all parties and as such, the Court will not order the deposition to happen after Ms. Killen is off of medical leave.

            Because the original date for this deposition of February 1, 2023, has passed, the parties should meet and confer regarding an appropriate date and/or reasonable accommodations for Ms. Killen’s deposition as soon as practicable. If accommodations cannot be made and Ms. Killen truly cannot be deposed before mid-March, the Court may revisit it’s previous rulings regarding the trial date and trial related deadlines.

V.       CONCLUSION

             This Motion for a Protective Order is DENIED.

Dated: February 10, 2023                                                      _______________________

                                                                                                Judge of the Superior Court