Judge Jill Feeney, Case BC696395 2022-09-28 Tentative Ruling

On March 2, 2018, Jebb Dykstra, Makenna Dykstra, and Lilly Dykstra (“Plaintiffs”) initiated the present action against Raffy Karamanoukian, M.D., Raffy Karamanoukian, M.D., Inc., Kare Plastic Surgery and Skin Health Center, and Does 1 through 100. Plaintiffs’ Complaint alleges a single cause of action for Professional Negligence.

Plaintiffs seeks a protective order limiting the number of Defendants’ retained experts. Plaintiffs argue that six of Defendants’ retained experts are cumulative. Plaintiffs contend that good cause exists for the protective order because Defendants have multiple experts testifying as to the standard of care, causation, and damages. Plaintiffs argue the testimony is cumulative and is more prejudicial than probative. Additionally, Plaintiff argues that Defendant’s experts pose undue expense upon Plaintiffs.

Defendants argue that the number of experts they retained are appropriate because there were 12 specialists involved in Decedent’s care. Defendant also argues that six of its originally retained experts have been withdrawn and that the remaining experts are necessary to address rare and complex medical issues presented by this case. Defendant also argues Plaintiff’s motion is premature because the Court cannot decide if the testimony is cumulative until it is given.

On reply, Plaintiffs state that they have already deposed four of Defendant’s experts and paid $13,100 to depose those experts. They will depose another two experts before the date of the hearing on this motion. To depose the remaining six experts, Plaintiffs will incur an additional $26,000 in fees to obtain testimony which is cumulative. Plaintiffs argue this constitutes undue expense. Plaintiffs also provide explanations as to why the testimony of the six remaining experts is cumulative.

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).)

Plaintiffs seek a protective order limiting Defendant’s retained experts to those deposed prior to the hearing on this motion. Plaintiffs’ counsel properly attached a meet and confer declaration indicating the parties met and conferred prior to the filing of this motion.

Defendants argue that Plaintiffs’ motion is premature because the Court cannot determine if testimony is cumulative until the testimony is heard. Defendants cite case law which states motions in limine are inappropriate when the presentation of evidence may be unpredictable at trial. However, Plaintiffs in the case at hand are seeking a protective order to prevent undue expense. A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order. (Code Civ. Pro. section 2034.250.) Plaintiffs’ motion is permitted by Code Civ. Pro. section 2034.250.

Plaintiffs argue that Defendants’ experts should be limited because their testimony is cumulative and the number of experts retained poses undue expense upon Plaintiff. Plaintiffs contend that they have already spent $13,100 to depose four expert witnesses and plan to depose two more before the hearing on this motion. Defendants withdrew Dr. Samir Makani, Dr. Gregory Hammer, Dr. Daniel Wohlgelernter, Dr. Gary Vilke, and Dr. Michael Fishbein. Plaintiffs allege that they will need to spend an additional $26,000 to depose the remaining six expert witnesses. Although this matter does involve complex medical issues, expenses in excess of $39,000 do pose undue expense upon Plaintiffs.

Defendants allege that Dr. Olfsten is a neuroradiologist who will testify as to Decedent’s chest x-ray, which demonstrated bilateral fluffy infiltrates suggestive of pneumonitis. (Opp., p.13.) However, Plaintiffs allege that Dr. Terry Dubrow, who Plaintiffs already deposed on September 2, 2022, has already testified that Decedent “suffered from a chemical pneumonitis from aspirating and how the aspiration affected her condition.” (Reply, p. 4.) Dr. Dubrow is a plastic surgeon currently engaged in private practice. His background and expertise in surgical procedures show that he would have the expertise necessary to interpret an x-ray. (Motion, Exhibit 1, Owens Decl., ¶3.) Additionally, Dr. Gary Nitti, who Plaintiffs deposed on September 15, 2022, already testified that Decedent’s x-ray indicated that she had aspirated. (Reply, p. 4.) Dr. Nitti is an anesthesiologist with expertise in the management of airways who would have the expertise necessary to interpret an x-ray as to Decedent’s lungs. (Motion, Exhibit 1, Owens Decl., ¶6.) Given that Dr. Dubrow and Dr. Nitti have both provided consistent opinions as to Decedent’s x-ray, there is no need for a third expert opinion on the same issue.

Defendants allege that Dr. Sanchez is an autopsy pathologist who will testify as to Dr. Matthew Miller of the Los Angeles County Coroner’s office, and his management of Decedent’s autopsy, which allegedly resulted in an inaccurate reading of the lidocaine levels in Decedent’s blood. (Opp., p. 9, 13.) Dr. Simonian is also offered to testify on the lidocaine levels and the effect of lipid emulsion on the coroner’s office’s toxicology findings. (Reply, p.5.) However, Defendants also retained and Plaintiffs already deposed another forensic toxicologist, Dr. Iain McIntyre, who has already addressed the errors made by the Los Angeles County Coroner’s Office. (Motion, Exhibit 1, Owens Decl., ¶12.) Additionally, Plaintiffs allege Dr. Nitti also testified as to this issue. There is no need for a third or fourth opinion on this issue.

Defendants allege that Dr. Leo is an emergency medicine and critical care intensivist who will testify as to the cause of Decedent’s sudden decline once hospitalized based on records of Decedent’s care in the ICU. (Motion, Exhibit 1, Owens Decl., ¶2.) Plaintiffs allege Decedent’s condition in the ICU and the events leading to her death has already been discussed by Drs. Dubrow and Nitti. (Reply, p. 5.) However, it is reasonable for Defendants to retain an expert to opine on Decedent’s care in the ICU. No other expert has been offered with expertise in emergency medicine.

Defendants also allege that Dr. Becker is an anesthesiologist who will testify as to the standard of care for paramedics and Decedent’s lidocaine toxicity. However, as discussed above, Dr. Leo will testify as to the standard of care in the ICU and has the expertise in emergency medicine necessary to opine on the standard of care of the paramedics. Additionally, Plaintiffs allege that the standard of care of the paramedics has already been covered by Dr. Putnam. Regarding Decedent’s lidocaine toxicity, Defendants retained a number of other experts to comment on lidocaine toxicity, including Dr. McIntyre, Dr. Nitti (also an anesthesiologist), and Dr. Benowitz. There is no reason to include a third expert on the issue.