Judge: Kerry Bensinger, Case: 21STCV20191, Date: 2023-08-21 Tentative Ruling

Case Number: 21STCV20191    Hearing Date: August 21, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 21, 2023                                 TRIAL DATE:  September 26, 2023

CASE:                                Aisan Kiahmehr v. Gerald Powell, et al.

CASE NO.:                 21STCV20191

MOTION TO SUBMIT TARDY EXPERT WITNESS LIST

MOVING PARTY:               Defendants Gerald Powell and SPS Ventures, Inc.

RESPONDING PARTY:     Plaintiff Aisan Kianmehr

I.          BACKGROUND

            On May 28, 2021, Plaintiff, Aisan Kianmehr, initiated this action against Defendants, Gerald Powell (“Powell”), Penske Truck Rental, and SPS Ventures, Inc. (“SPS”), for injuries Plaintiff sustained when Powell opened the door to his vehicle and struck Plaintiff while riding a bicycle.  

On May 17, 2023, Plaintiff served a Demand for Exchange of Expert Information, demanding designation of experts on or before June 21, 2023.

On June 20, 2023, Plaintiff timely served her expert witness designation.  Plaintiff designated two medical doctors, one to address her cervical and lumbar spine injuries and one to address her knee and shoulder injuries.  Defendants did not serve their expert witness designation.

On July 3, 2023, Defendants served their expert witness designation.  Defendants’ counsel contacted Plaintiff’s counsel wherein he admits the designation had not been timely served.  Defense counsel then asks Plaintiff to stipulate to Defendants’ tardy expert designation.  The tardy expert designation identifies two retained experts: Ronald Kvitne, M.D., and Tracy L. Witty, OTD.  Dr. Kvitne conducted an IME of the Plaintiff.  Tracy L. Witty is a medical billing expert.  Plaintiff did not agree to the stipulation.

On July 31, 2023, Powell and SPS (hereafter, “Defendants”), filed this motion to submit a tardy expert witness list.  Plaintiff opposes and Defendants reply.

II.        LEGAL STANDARDS

            Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any person whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.  (Code Civ. Proc., § 2034.210, subd. (a).)  “On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.”  (Code Civ. Proc., § 2034.710, subd. (a).)  The motion shall be made a sufficient time in advance of the time limit for the completion of discovery 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.  (Code Civ. Proc., § 2034.610, subd. (b).)  The motion shall be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2034.610, subd. (c).) 

            The court shall grant leave to submit tardy expert witness information 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 absence of a 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 that the moving party did all of the following: (1) failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect, (2) sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect; and (3) promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action; and,

(d) the order is conditioned on the moving party making the expert available immediately for a deposition, 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.  (Code Civ. Proc., § 2034.720.) 

III.      DISCUSSION

A. Meet and Confer

Defense counsel has satisfied this requirement.  (Williamson Decl., ¶¶ 8-10.)

B.  Analysis

Defendants seek leave to submit a tardy expert witness list identifying Ronald Kvitne, M.D., and Tracy L. Witty, OTD as their retained experts.  After consideration of the factors, the Court finds Defendants are entitled to an order relieving Defendants of their waiver to submit an expert witness designation.      

            The Applicable Test (Code Civ. Proc., § 2034.620) 

(a)  Reliance on the Expert Witness List¿ 

            Plaintiff argues she relied on the absence of Defendants’ expert witness designation by deciding not to retain a medical billing expert.  Defendants argue Plaintiff cannot establish reliance because Plaintiff did not seek leave to amend her expert witness designation after Defendants served their late designation.  It’s not clear whether Plaintiff failed to serve a supplemental designation with a medical billing expert because Plaintiff believed she could stand on her objection to the tardy designation.  A risk to be sure.  But a potentially meritorious argument.  This factor weighs slightly in Plaintiff’s favor; however, any prejudice can be mitigated as discussed below.  

            (b) Prejudice¿ 

            Plaintiff argues she will be prejudiced if she cannot offer expert testimony of a medical billing expert to rebut Defendant’s expert.  Plaintiff confuses the inquiry.  The issue is whether permitting Defendants to serve an expert witness list would prejudice Plaintiff.  If Plaintiff’s concern is her ability to offer expert testimony of a medical billing expert, Defendants represent in their reply they would stipulate to allow Plaintiff to designate a billing expert.  Plaintiff further argues there is insufficient time to complete the requisite discovery should Defendants be permitted to serve their designation.  However, the Court can continue the trial date, if necessary, to allow the parties to complete expert discovery, and mitigate any resulting prejudice.  In sum, Plaintiff does not demonstrate prejudice.  This fact supports the motion.   

(c) Excuse – Defendants must demonstrate all of the following: 

             (c)(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(c)(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(c)(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

            Defendants argue the failure to serve a timely expert witness list is the result of mistake,  inadvertence, or excusable neglect.  Defendants explain Adam J. Jaffe, the handling attorney for the case, left the firm to attend to his obligations with the U.S. Coast Guard reserve and family duties.  Defendants’ current counsel erroneously believed Mr. Jaffe had prepared and served the expert designation before his departure.  Defendants learned of the oversight as they prepared to notice depositions of Plaintiff’s experts and thereafter reached out to Plaintiff on July 3, 2023.  Defendants’ expert designation was served that same day.  This motion was then filed on July 9, 2023.

            Plaintiff argues elements (c)(1) – (3) are not met.  Plaintiff points out a declaration from Mr. Jaffe has not been submitted to show the expert designation was not served due to his military obligations.  In this way, Plaintiff argues there is no evidence of excusable neglect.  Plaintiff also points to the lack of facts regarding when Defendants became aware their expert designation had not been served.  Due to this lack of clarity, Plaintiff argues that Defendants could have been aware of the oversight as early as June 21, 2023—when Defendants’ expert designation was due.  Defendants could have known of the oversight for twelve days before serving their expert designation on July 3, 2023.  Taken together with the filing of this motion on July 9, 2023, Plaintiff argues this timeline demonstrates a lack of promptness in seeking relief and serving the tardy proposed designation. 

            Although Defendants do not submit a declaration from Mr. Jaffe, the Court finds Defendants’ current counsel, Ian Williamson, has submitted a sufficient declaration to establish excusable neglect in believing Mr. Jaffe had served an expert designation prior to Mr. Jaffe’s departure from the firm.  As to the lack of clarity of when Defendants learned of the oversight, the Court finds that under either scenario (whether using a June 21, 2023 or July 3, 2023 date) Defendants acted promptly in serving the proposed designation whether.  The Court also finds the filing of this motion on July 9, 2023, to be sufficiently prompt under either date.   

IV.       CONCLUSION 

The Court finds Defendants satisfy the required elements.  Accordingly, the motion is granted.  Pursuant to Code of Civil Procedure section 2034.720, subdivision (d), this order is conditioned on Defendants making their experts available immediately for a deposition.  Additionally, Defendants are ordered to pay Plaintiff her costs in opposing this motion and any costs related to the taking of Defendants’ expert’s depositions.  Plaintiff may file a supplemental expert designation identifying a medical billing expert. The Court will hear from the parties regarding the trial date.

Moving party to give notice. 

Dated:   August 21, 2023                                          ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.