Judge Lee S. Arian, Case Number: 19STCV11651, Date: 2024-02-14 Tentative Ruling

MOVING PARTY: Defendant Los Angeles County Metropolitan Transportation Authority (“LACMTA”)

This action arises from a fall on a bus which occurred on October 5, 2018. On April 3, 2019, Plaintiffs Richard Ian Rayner (“Rayner”) and Paivi Suvilehto (“Plaintiffs”) filed a Complaint against Defendants Los Angeles County Metropolitan Transportation Authority (“LACMTA”), Doe Bus Driver, and DOES 1 through 50, alleging causes of action for: (1) motor vehicle, (2) liability for the wrongful act or omissions by public entity employees, and (3) loss of consortium.

On January 17, 2024, Defendant LACMTA filed and served the instant motion for a protective order striking the section of Plaintiff Rayner’s January 3, 2024 Exchange of Expert Witness Information and allowing Plaintiff Rayner five days to file an Amended Exchange of Expert Witness Information listing no more than three non-retained expert witnesses for Plaintiff Rayner (the “Motion”). Plaintiff filed a late opposition on February 12, 2024; in its discretion, the Court will consider the late opposition.

The Motion is made on the grounds that: (1) Plaintiff Rayner has imposed oppression, undue burden, and expense on Defendant LACMTA by identifying 32 named non-retained experts; and (2) Plaintiff Rayner seeks to evade discovery by concealing witnesses he expects to call among those he does not expect to call.

In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

“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. (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.” (Code Civ. Proc., § 2034.250, subd. (b).)

“[T]he very purpose of the expert witness discovery statute is to give fair notice of what an expert will say at trial. This allows the parties to assess whether to take the expert’s deposition, to fully explore the relevant subject area at any deposition, and to select an expert who can respond with a competing opinion on that subject area.” (Bonds v. Roy (1999) 20 Cal.4th 140, 146-47.) “[T]he need for pretrial discovery is greater with respect to expert witnesses than it is for ordinary fact witnesses.” (Id. at p. 147.) An exchange of expert witness information must include: (1) a list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at trial; or (2) a statement that the party does not presently intend to offer the testimony of an expert witness. (Code Civ. Proc., § 2034.260, subd. (b)(1)-(2).)

The Court finds that the meet and confer requirement has been met pursuant to CCP § 2034.250 as counsel for Defendant LACMTA, Paul O’Reilly (“O’Reilly”), sets forth the meet and confer efforts to resolve the issues raised in the Motion. (O’Reilly Decl., ¶ 4.)

Plaintiff Rayner alleges that he fell inside a moving bus when it suddenly braked to avoid a vehicle that changed lanes in front of it and then stopped at an intersection. (O’Reilly Decl., ¶ 2.) Plaintiff Rayner claims injuries such as head and cognitive injuries, traumatic brain injury, and subdural hematoma among other injuries. (Id.) On January 3, 2024, Plaintiff served an Exchange of Expert Witness Information. (Id., ¶¶ 3-4; Exhibit A.) Plaintiff’s counsel has refused to provide an appropriate disclosure identifying which non-retained expert witnesses Plaintiff Rayner expects to call at trial. (Id., ¶ 5.) O’Reilly states that he lacks information needed to determine which non-retained experts he needs to subpoena and depose. (Id.) Counsel states that Plaintiff Rayner is hiding the identities of intended witnesses. (Id., ¶ 6.)

Plaintiff Rayner has identified 32 non-retained experts. The Court finds that Plaintiff Rayner has designated “Beverly Hills Medical Imaging” as a non-retained expert without identifying individual persons. (O’Reilly Decl., ¶ 3; Exhibit A.) This is not in compliance with CCP § 2034.260.

However, Defendant LACMTA’s motion for a protective order limiting Plaintiff to three expert witnesses is far too restrictive in the Court’s view, even taking into account the defective designation of Beverly Hills Imaging.[1].despite such a defect. Plaintiff Rayner’s Exchange of Expert Witness Information clearly states that Plaintiff Rayner expects to offer the opinions of the non-retained experts into evidence at trial. (Id., ¶ 3; Exhibit A at 1:22-23.)

has complied with CCP § 2034.260(b)(1) which provides that the exchange of expert witness information must set forth “the name and address of a person whose expert opinion that party expects to offer into evidence at trial.” The Court fails to see any support for Defendant LACMTA’s contention that Plaintiff Rayner is hiding intended witnesses when all non-retained experts have been identified in the Exchange of Expert Information and those non-retained experts are treating health care providers.

In sum, the Court finds that Defendant LACMTA has not shown good cause for issuance of its requested protective order. As such, the Motion is DENIED.

Accordingly, Defendant LACMTA’s Motion for a Protective Order regarding Plaintiffs’ Exchange of Expert Witness Information 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.

Hon. Lee S. Arian

Judge of the Superior Court

[1] The Court’s decision here on the issue before it is not in any way intended to signal that the Court approves of or accepts the clearly defective designation of Beverly Hills Medical Imaging.