Judge Kerry Bensinger, Case Number: 20STCV18721, Date: 2023-09-19 Tentative Ruling

On May 15, 2020, Plaintiff, Arman Dayan, filed a complaint against Defendant, Stanley Shuster (erroneously sued as “Stanley Schuster”), for injuries arising from a pedestrian versus motor vehicle collision.

Trial was initially set for September 11, 2023. Based on that trial date, on July 21, 2023, the parties exchanged their respective expert designations. Defendant took issue with Plaintiff’s designation. Specifically, Plaintiff designated two accident reconstruction experts from the same office who are expected to provide similar testimony; Plaintiff designated nine retained experts and fourteen non-retained experts and the testimony of the non-retained experts will be duplicative or redundant of his retained experts; and last, it is unclear from Plaintiff’s counsel’s expert declaration on what issue will designated expert Timothy Lanning testify.

On July 24, 2023, Defendant notified Plaintiff of the issues he found objectionable Having not received a response, on August 16, 2023[1], Defendant filed this motion for a protective order to Plaintiff’s expert witness designation. Defendant requests the Court to reduce Defendant does not seek sanctions.

Code of Civil Procedure section 2034.250 permits a party who has been served with a demand to exchange information concerning expert trial witnesses to promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2034.250, subd. (a).) 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, but is not limited to, one or more of the following directions:

(2) That the date of exchange be earlier or later than that specified in the demand.

(4) That the production and exchange of any reports and writings of experts be made at a different place or at a different time than specified in the demand.

(5) That some or all of the parties be divided into sides on the basis of their identity of interest in the issues in the action, and that the designation of any experts as described in subdivision (b) of Section 2034.210 be made by any side so created.

(6) That 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.

If the motion for a protective order is denied in whole or in part, the court may order that the parties against whom the motion is brought, provide or permit the discovery against which the protection was sought on those terms and conditions that are just. (Code Civ. Proc., § 2034.250, subd. (c).)

Defendant seeks a protective order for three reasons: (1) to reduce the number of accident reconstruction experts Plaintiff may call to testify; (2) to limit the scope or exclude the testimony of Plaintiff’s expert Timothy Lanning; and (3) to exclude the expert opinions of Plaintiff’s non-retained experts who will provide duplicative testimony of Plaintiff’s retained experts. The Court addresses each request in turn.

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 direct a party or a side to reduce the list of employed or retained experts designated by that party. (Code Civ. Proc., § 2034.250, subd. (b).)

Defendant argues Plaintiff has designated two accident reconstruction experts—Jon Landerville and Fernando Covarrubias—who will provide duplicative testimony. Mr. Landerville and Mr. Covarrubias are mechanical engineers who work for the same company and are each qualified to provide testimony as accident reconstruction experts.

Plaintiff contends the scope of Mr. Landerville’s and Mr. Covarrubias’s respective testimony are different. Mr. Landerville will testify as to the subject incident, its reconstruction, vehicle dynamics, impact dynamics, liability, and causation. Mr. Covarrubias will testify about site inspection and his examination of an exemplar Tesla.

Plaintiff shows the scope of Mr. Landerville’s and Mr. Covarrubias’s testimony is different. To the extent Defendant still takes issue with these expert designations, Defendant is directed to bring a motion in limine with the trial court. In the Personal Injury Court system this case will be tried by a different court than the Court ruling on this motion. The trial court is better positioned to rule on this matter.

Plaintiff’s counsel describes the scope of Mr. Lanning’s testimony as follows: “Timothy Lanning is an economist.... He will testify as to damages, specifically future economic damages (life care plan and future medical care). He will opine as to the present value of the future economic losses to be suffered by Plaintiff. Mr. Lanning will also testify about any and all issues raised by Defendant, their counsel, and their expert witnesses on the topic/issue of economic or financial loss (emphasis added).” (Ex. B, Kim Decl.)

Defendant argues the emphasized portion of Plaintiff’s counsel’s declaration is vague and ambiguous because the language is so broad as to include any past or future wage loss claims which Plaintiff has already waived.[2]

Plaintiff opposes but fails to address the emphasized portion of Plaintiff’s counsel’s declaration. As such, the motion as to Plaintiff’s counsel’s declaration regarding Mr. Lanning’s testimony is granted. Plaintiff is directed to amend counsel’s declaration consistent with this order.

5. Jon Landerville (mechanical engineer specializing in accident reconstruction, computer animation, vehicle dynamics, impact dynamics, movement of the Tesla [Defendant’s vehicle] leading up to the impact, rollover analysis, and visibility studies.

7. Fernando Covarrubias, BSME (forensic engineer specializing in accident reconstruction, computer simulations, and vehicle dynamics)

Defendant argues Plaintiff’s designation of non-retained experts is duplicative or redundant. Specifically, Defendant argues Rivera, Sheily, Davar and Russo are redundant of each other; Tehranzadeh and Simon are duplicative of retained expert King; Eskenazi and aminian are duplicative of retained expert Franc; and Obukhoff is duplicative of retained expert Cuellar.

Plaintiff argues each non-retained expert provided distinct medical or dental care to Plaintiff. As such, Plaintiff should not have to reduce his expert designations.

Although Plaintiff has designated a significant number of experts, Plaintiff demonstrates that each retained expert provided medical or dental treatment to Plaintiff for injuries that include but are not limited to his head, wrist, knees, and neck. The Court is not inclined to limit Plaintiff’s ability to present his case at this juncture. As indicate above, if Defendant continues to take issue with Plaintiff’s expert designation, Defendant is directed to bring a motion in limine with the trial court.

In sum, Defendant is entitled to an order directing Plaintiff to clarify the scope of Dr. Lanning’s testimony. Defendant does not justify an order directing Plaintiff to reduce his designation of accident reconstruction experts and non-retained experts.

The motion is granted as to Dr. Lanning. Dr. Lanning is precluded from testifying to matters that Plaintiff has waived, including but not limited to Plaintiff’s past and future wage loss claims. If Plaintiff’s counsel amends his declaration regarding the scope of Dr. Lanning’s consistent with this order, Plaintiff may request that the protective order be lifted.

The motion as to Plaintiff’s reconstruction experts and non-retained experts is denied.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] The Notice of Motion is not signed by defense counsel. Defendant was made aware of the defect on September 6, 2023, and promptly filed an Amended Notice of Motion for Issuance of an Order of Protection on September 7, 2023. (See Code Civ. Proc., § 128.7.)

[2] In his Reply, Defendant also references Plaintiff’s recently served responses to Defendant’s Request for Admission wherein Plaintiff indicates he is now asserting a wage loss claim. (See Reply, p. 3:16-19.) However, the discovery response has not been submitted to the Court. Nor is it clear exactly why or how Plaintiff has waived his claim for future wage loss. Having so stated, if Defendant’s representation is correct, the Court agrees Plaintiff’s counsel’s declaration must confine the scope of Mr. Lanning’s testimony to matters that have not been waived and are at issue.