Judge Jill Feeney, Case 18STCV15160 2023-01-18 Tentative Ruling

However that does not mean that the other treating physicians may not be called as witnesses at trial to authenticate medical records or to simply testify to the treatment given, without offering any expert opinions. The parties are ordered to meet and confer about stipulations regarding the authenticity and admissibility of the relevant medical records as that would be the most efficient way for this information to be presented at trial so that it may be relied upon by Plaintiff’s and Defendant’s retained experts.

If Plaintiff believes that expert testimony is needed from more than ten treating physicians, Plaintiff should file a motion to expand that number. The motion should explain the need for additional expert testimony and set forth the expected expert testimony of each physician so that it is clear that the testimony is not cumulative or duplicative.

This is an action for negligence and negligent entrustment arising from a vehicle-pedestrian collision which took place in May 2018. Plaintiff Jeffrey Minor, by and through his guardian ad litem, Monica Watts, filed his Complaint, the Lost Angeles County Metropolitan Authority on May 1, 2019.

Defendant seeks a protective order ordering Plaintiff to reduce the number of non-retained experts on the grounds that it would be overly burdensome for Defendants to subpoena and depose all 33 of the physicians who treated Plaintiff. Defendant argues that Plaintiff should be limited to just 3 non-retained experts.

Plaintiff argues that all of the treating physicians must be designated as experts in light of the ruling in People v. Sanchez. Plaintiff argues that all 33 physicians are necessary to prove his injuries and damages. Plaintiff also argues that MTA has the resources to depose and subpoena all 33 physicians.

Defendant argues that Plaintiff’s 18 injuries fit into 3 categories, mental, orthopedic, and ophthalmological experts. Thus, only 3 physicians are necessary to testify. Defendant also argues the 33 experts’ testimony is cumulative or duplicative. Defendant argues that the ruling in Sanchez did not overrule section 2034.260. Rather, a party must designate any person whose expert opinion the party expects to offer at trial, not every physician who treated the party. Defendant also alleges that Plaintiff’s designation constitutes gamesmanship that would prejudice MTA.

Under Code of Civil Procedure section 2034.250, “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, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include…[t]hat 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., section 2034.250, subds. (a)-(b).)

“The court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, 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., section 2034.250, subd. (d).)

Defendant seeks a protective order limiting the number of Plaintiff’s 33 non-retained experts on the grounds that deposing and subpoenaing so many experts would cause undue burden and expense. Defendant requests that Plaintiff’s experts be limited to just three.

Defendant properly includes a meet and confer declaration which states that Defendant met and conferred with Plaintiff and was unable to resolve this issue. (O Reilly Decl., ¶5.)

On November 22, 2022, the parties exchanged expert designations. (Motion, Exh. A.) Plaintiff’s designations included 33 non-retained experts, who were Plaintiff’s treating physicians, and 4 retained experts. (Id.) The non-retained physicians treated Plaintiff for bruises, lacerations, a nosebleed, facial fractures, blood clots in his right eye, an epidural hematoma, a broken clavicle, broken ribs, shattered bones, soft tissue injuries, blurred vision in the right eye, anxiety, depression, and memory loss. (O Reilly Decl., ¶3.)

Defendant argues that it would have to pay for subpoenas, process servers, expert witness fees, court reporters, and for attorney time to depose all 33 witnesses. (Motion, p.6.) Defendant also argues that Plaintiff does not intend to call all 33 witnesses but designated every physician who treated Plaintiff to conceal those who will testify at trial. (Id.) Plaintiff argues that all 33 witnesses provided necessary medical treatment but does not state that he intends to call every witness to testify at trial. Plaintiff also argues that Defendant is a large transit system that has the resources to pay for the depositions.

Plaintiff cites People v. Sanchez (2016) 63 Cal.4th 665, 675, arguing it is necessary for Plaintiff to designate his treating doctors because treating doctors must lay the foundation to prevent retained expert witness testimony from being stricken. Sanchez states that an expert witness may not “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent injuries.” (People v. Sanchez (2016) 63 Cal.4th 665, 686.)

Here, there is good cause to grant Defendant’s motion because the cost of deposing 33 experts would pose undue burden and expense and naming 33 nonretained experts conceals the identity of the doctors who actually will be offering expert testimony. It is difficult to imagine that Plaintiff expects 33 treating physicians to testify as experts and that their testimony would not be cumulative or duplicative. Plaintiff may lay a foundation as to his injuries using other admissible evidence, such as his medical records or the testimony of treating physicians as to the treatment provided, without any expert opinions. However, Defendant’s request limiting the non-retained experts to just three experts appears unreasonable because Plaintiff is claiming a wide variety of injuries.

Therefore, the Court limits Plaintiff to ten nonretained experts. If Plaintiff contends that number is insufficient, Plaintiff may file a motion requesting more.