Judge: Glenn R. Salter, Case: 17-917072, Date: 2022-09-01 Tentative Ruling
Motion to Compel Expert Deposition
The motion of defendants Decton, Inc., and Mission Hospital Regional Medical Center to compel the deposition of plaintiff’s expert, Dr. Joshua Prager, on or before September 9, 2022, is GRANTED as modified. The deposition shall be taken by September 16, 2022.
The plaintiff designated Dr. Prager as an expert in February 2022, and the defendants have noticed his deposition several times. However, he has never been made available for different reasons. Apparently, the basic reason (although not the only reason) is that this expert has not had time because of other trials.
The plaintiff indicates that Dr. Prager will be made available September 27, 2022. But trial is currently scheduled for October 3, 2022, and trial will go forward as now set because the complaint was filed April 27, 2017, and the five-year statute (as extended) will expire soon.
The competing requests for sanctions are DENIED in the interests of justice.
Motion for Late Designation of Supplemental Experts
The motion of defendants Decton, Inc., and Mission Hospital Regional Medical Center to file tardy expert information is DENIED. The defendants do not make a sufficient showing of mistake, inadvertence, surprise, or excusable neglect, as required by the Code of Civil Procedure section 2034.720, subdivision (c)(1).
Although the opposition was filed one day late, the court exercises its discretion to consider it.
The defendants seek leave to designate three rebuttal experts: Jeff Bruno (vocational rehabilitation); Dominick Addario, M.D. (psychiatrist); and Henry Lubow, M.D. (medical billing).
The plaintiff served an expert designation in late February 2022. One of her designated experts was Janice Wexler, a vocational rehabilitation expert. The defendants did not timely file a supplemental designation of a vocational rehabilitation expert because they understood Dr. Prager, plaintiff’s pain management expert to state that the plaintiff would continue to work and thus a vocational rehabilitation expert was not necessary. Now, they claim “mistake” because they just learned on July 19, 2022, when served with plaintiff’s vocational expert report for the Mandatory Settlement Conference, that the plaintiff would not be working in the future. The court finds this does not qualify as mistake, inadvertence, surprise, or excusable neglect sufficient to justify the relief sought in the motion. The initial designation of a vocational rehabilitation expert put the defendants on notice.
The plaintiff’s initial designation identified two psychology and psychiatry experts. Defendants objected on the ground that these two experts would be testifying on the same issues and that one should be de-designated. It is unclear why, but the plaintiff never responded. Now, around six months later, the defendants want to designate their own psychiatrist. The defendants offer no sufficient reason why they did not timely designate a psychologist or a psychiatrist.
Finally, the defendants want to designate a billing expert to counter the plaintiff’s designated expert. Other than a hopeful assertion that billing experts will probably not be needed, again the defendants fail to offer a sufficient explanation as required by the statute.
The plaintiff shall give notice.
Trial
The parties are advised that the court is likely to be engaged in another five-year trial on October 3, 2022. The court anticipates the other trial will finish the week of October 10, 2022, and the court will then become available.