Judge: James L. Crandall, Case: 19-1103686, Date: 2022-10-06 Tentative Ruling

Motion for an Order Granting Leave to Amend Plaintiffs’ Expert Witness List

Plaintiff Lunden David Peterson, a minor, by and through his Guardian ad Litem, Lorinda Vasquez’s Motion for an Order Granting Lave to Amend Plaintiff’s Expert Witness List (Motion), filed 5-25-22 under ROA No. 233 is GRANTED.

California Code of Civil Procedure section 2034.610, subdivision (a) provides:

“On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following: [¶] (1) 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.”

Section 2034.610, subdivision (b) provides:

“A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.”

Section 2034. 620 provides:

The court shall grant leave to augment or amend an expert witness list or declaration 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.

Plaintiff seeks an order permitting him to designate Mr. Harlan Kistler in place of the currently designated wrestling expert, Mr. Jeff Roberts.

Plaintiff represents that Mr. Kistler has already been retained and that Plaintiff will obtain deposition dates from Mr. Kistler after the court’s ruling so that Defendants can take his deposition immediately. (Motion, 8.) Further, Mr. Kistler was retained to testimony on the same categories as Mr. Roberts. (Motion, 5.)

Procedural History

On 11-5-21, Plaintiff served his Expert Witness Designation. On 12-3-21, Defendants filed a Motion to Strike Plaintiff’s Tardy Ex Witness Designation. On 12-3-21, Plaintiff filed an Ex Parte Application for an order permitting service of a tardy expert witness declaration. The court denied Plaintiff’s ex parte and continued the ex parte to a noticed motion on 2-17-22.

On 2-17-22, the court granted Plaintiff’s Motion for Leave to Serve a Late Expert Witness Designation ON THE CONDITIONS THAT Plaintiffs make their expert witnesses available immediately for deposition, and Defendants are granted leave to designate additional expert witnesses or to elicit additional opinions from those previously designated based upon any expert witnesses identified by Plaintiffs in their tardy expert witness designations that are outside the scope of Defendants’ timely expert witness designations. (See ROA No. 215).

Plaintiff’s counsel, Diamo Dokhanian, attests that on 3-23-22, Plaintiff’s wrestling expert informed their office by email that he would “pass on helping with this case.” (Dokhanian Decl., ¶ 3, Exhibit 1.) The parties were engaged in meet and confer efforts regarding Mr. Roberts’ expert designation, availability for deposition, and Plaintiff’s request for Defendants’ to stipulate to substituting Mr. Roberts out from 2-23-22 to 5-2-22. (See Dokhanian Decl., ¶¶ 3-6, Exhibits 2-3; Kontarovsky Decl., ¶¶ 13-24, Exhibits 8-17.)

Merits

Plaintiff argues that they should be permitted to substitute Mr. Kistler for Mr. Roberts as Mr. Roberts was designated on 11-5-21 and has not done substantive work to date. (Motion, 7-8.) His deposition has not been taken and he has not generated any reports. Replacing Mr. Roberts with another expert in the same area will not prejudice Defendants.

Plaintiffs will be prejudiced if they are not permitted to amend their expert witness list because they will not have a wrestling expert at the time of trial, as Mr. Roberts has withdrawn.

In opposition, Defendants argue Plaintiff never actually retained Mr. Roberts. (Opposition, 9-11.) For example, Plaintiff’s initial expert witness designation was served on 11-5-21 but did not include Mr. Roberts’ CV or information related to his rate. There is no evidence that Mr. Roberts was ever retained. Additionally, Defendants argue that Mr. Roberts’ statement that he would “pass on this case” two years after he was first contacted is further evidence that Mr. Roberts was never retained and does not know about this case.

Further, and according to Defendants, Plaintiff can only submit a supplemental expert witness only if Plaintiff has not previously retained an expert on the subject. (Opposition, 13-14.) Defendants cite to Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723 (Basham) for this argument.

In Basham, Plaintiff filed a lawsuit alleging that Defendant had caused him personal injuries arising out of an automobile accident. (Id. at 1719.) The parties exchanged expert witness designations on 11-28-94 and Defendant designated an orthopedic expert, then designated a radiologist on substantially identical areas. (Id. at 1719-1720.) Both doctors then testified at trial. (Id. at 1720-1722.) The court further stated: “A party may submit a supplemental expert witness list within 20 days after the exchange, but only “if the party supplementing the expert witness list has not previously retained an expert to testify on that subject…It follows that a party who has designated an expert to testify on a particular subject may not use a supplemental list to substitute experts.” (Id. at 1720-1723.)

Finally, Defendants argue that they will suffer undue prejudice if Plaintiff’s motion is granted. (Opposition, 14-15.) Defendants are suffering undue prejudice because they have been timely complying with all expert discovery deadlines such as making their experts available for deposition. Plaintiff is therefore getting to “continue seeing Defendants’ litigation strategy” without offering the same to Defendants. Thus, the court should not grant leave to amend Plaintiff’s expert designation.

The court finds that the Motion fulfills the requirements of Code of Civil Procedure section 2034.620, subdivisions (a), (b) and (c).

First, the court finds that Defendants’ have not demonstrated reliance on Plaintiff’s designation of Mr. Roberts. It is undisputed that Mr. Roberts has done no work on this case and was not deposed. Defendants’ argument that they were prejudiced by Plaintiff’s designation is unavailing. The Motion fulfills the requirements of Code of Civil Procedure section 2034.620(a) as Defendants have not relied on Mr. Roberts’ work.

Second, the court finds that Defendants have not been prejudiced by Plaintiff’s designation of Mr. Roberts for purposes of Code of Civil Procedure section 2034.620(b). Defendants’ arguments that they have been prejudiced due to having to seek Mr. Roberts’ deposition is unpersuasive as Plaintiff represents that he will be replacing Mr. Roberts with an expert the same area who will be made available for deposition immediately.

Further, Plaintiff’s counsel attests that after learning of Mr. Roberts’ withdrawal, he called Defense counsel on 4-12-22 to inform him and seek his agreement to substitute a new expert witness in place of Mr. Roberts. (See Dokhanian Decl., ¶ 3.)

Despite this notification, Defense counsel still noticed Mr. Roberts’ deposition on 4-14-22, allegedly because Plaintiff would not respond to Defendants’ request to de-designate Mr. Roberts. (See Kontarovsky Decl., ¶¶ 18-19, Exhibits 10-11.)

The timing of the parties’ meet and confer efforts demonstrates that Plaintiff did not delay in seeking to replace Mr. Roberts after learning of his withdrawal. Defendants’ argument that they were prejudiced by expending efforts to obtain Mr. Roberts’ deposition fails, as Defendants chose to notice the deposition even after being notified that Mr. Roberts would not be available for this case.

With respect to Code of Civil Procedure section 2034.620(c), Plaintiff has sufficiently shown surprise from Mr. Roberts’ withdrawal on 3-23-22. (Dokhanian Decl., ¶ 2.)

Plaintiff has also shown that he quickly informed Defense counsel on 4-12-22, then sought leave to augment on 5-24-22 when the parties’ meet and confer efforts regarding his request proved unsuccessful.

Accordingly, Plaintiff’s Motion for an Order Granting Lave to Amend Plaintiff’s Expert Witness List (Motion), filed 5-25-22 under ROA No. 233 is GRANTED, conditioned on Plaintiff making Harlan Kistler immediately available for deposition by no later than 10/31/22.

Further, Mr. Kistler is to testify on exactly the same issues as Mr. Roberts.

Plaintiff is to give notice.

Future hearing dates

2/17/23 – MSC

3/20/23 – Jury Trial