Judge Lee S. Arian, Case Number: 20STCV25254, Date: 2024-02-14 Tentative Ruling

On June 30, 2020, Plaintiff Gloria Watson filed this action against Defendants Regents of the University of California (The Regents), Aparna Sridhar, M.D. (Dr. Sridhar), and Jenny Yang Mei, M.D. (Dr. Mei) (collectively, Defendants) for medical malpractice and medical battery. On December 31, 2020, Plaintiff filed the operative First Amended Complaint (“FAC”) adding causes of action for breach of fiduciary duty, fraudulent concealment, and intentional infliction of emotional distress.

Plaintiff alleges she scheduled a vaginal birth for her second child after delivering her first child through a Caesarean section (“C-section”). As used in the briefing before the Court, this procedure is referred to as a “VBAC,” an acronym for Vaginal Birth After Caesarean. However, instead of performing a VBAC, Plaintiff alleges that Dr. Sridhar and Dr. Mei performed an unauthorized C-section delivery of her second child and, and, during the delivery, ruptured, punctured, or perforated her small bowel, with numerous consequences.

On May 20, 2021, the defendants moved for summary judgment. On September 27, 2021, the Court granted summary judgment as to the third, fourth, and fifth causes of action and denied it as to the first and second causes of action.

On January 5, 2024, Defendants moved to exclude Plaintiff’s expert witness Felice Gersh, M.D. from testifying at trial.

Code of Civil Procedure section 2034.300 states that the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

Failure to comply with expert designation rules may be found to be “unreasonable” when a party's conduct gives the appearance of gamesmanship. (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447.) This includes undue rigidity in responding to expert scheduling issues. (Ibid.) The operative inquiry is whether the conduct being evaluated will compromise the purposes of the discovery statutes: “to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.” (Ibid.)

To have standing to object to opposing expert testimony under Code of Civil Procedure section 2034.300, the objecting party must have “made a complete and timely compliance” with all expert witness exchange requirements. (Code Civ. Proc., § 2034.300; Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1446.) However, where the objecting party attempts exchange but does not timely comply with exchange requirements due to opposing party's “gamesmanship,” the trial court has the inherent power to exclude testimony as sanctions for opposing party's “egregious violation” of exchange requirements. (Cottini v. Enloe Med. Ctr. (2014) 226 Cal.App.4th 401, 424-425.)

Defendants assert that Plaintiff repeatedly did not make Dr. Gersh available for deposition and did not produce her reports and writings prior to the close of expert discovery.

On the issue of standing, Defendants do not assert that they complied with all expert witness exchange requirements. Nonetheless, the Court will adjudicate the merits of the instant motion.

Defendants assert that they noticed Dr. Gersh’s deposition testimony five times: (1) November 5, 2021; (2) September 6, 2022; (3) September 21, 2022; (4) April 11, 2023; and (5) November 17, 2023. (Mot, pg. 5; Decl. Aitelli, ¶¶ 7, 11, 13, 17, 20.) Defendants further assert that the expert discovery deadline has passed; thus, Plaintiff has frustrated their attempts at deposing Dr. Gersh.

Defendants advance the declaration of their counsel. He states that Defendants first noticed Dr. Gersh’s deposition on November 5, 2021. (Decl. Aitelli, ¶ 7.) Plaintiff served a written objection. (Decl. Aitelli, ¶ 8.) Defendants next noticed Dr. Gersh’s deposition on September 6, 2022. (Decl. Aitelli, ¶ 11.) Plaintiff objected and offered an alternate date of October 4, 2022. (Decl. Aitelli, ¶ 12.) Defendants noticed Dr. Gersh’s deposition on September 21, 2022 for October 4, 2022. (Decl. Aitelli, ¶ 13.) Plaintiff confirmed the October 4 date. (Decl. Aitelli, ¶ 14.) However, Dr. Gersh’s deposition did not go forward[1] (Decl. Aitelli, ¶ 14.) Plaintiff also did not offer an alternate date. (Decl. Aitelli, ¶ 14.) Defendants noticed Dr. Gersh’s deposition on April 11, 2023. (Decl. Aitelli, ¶ 17.) Plaintiff objected. (Decl. Aitelli, ¶ 18.) Defendants noticed Dr. Gersh’s deposition again on November 17, 2023. (Decl. Aitelli, ¶ 20.) Plaintiff again objected. (Decl. Aitelli, ¶ 21.)

In opposition, Plaintiff argues that defendants repeatedly did not meet and confer about scheduling Dr. Gersh’s deposition. (Opp., pg. 11.) The Court notes that Plaintiff does not support this assertion with evidence. Plaintiff also argues that Dr. Gersh was unavailable in December 2023 for both personal and professional reasons, including a death in the family. (Opp., pg. 11; Decl. Gersh, ¶ 3.) In addition, Plaintiff argues that both Plaintiff’s counsel and Defendant’s counsel were unavailable in December 2023. (Opp., pg. 11.) The Court notes that Plaintiff does not assert this with admissible evidence. Plaintiff also argues that Defendants cancelled the October 4, 2022, deposition at the last minute. (Decl. Gersh, ¶ 4.) In addition, Plaintiff argues that she deposed Dr. Gersh on January 22, 2024; thus, this motion is moot.[2] (Mot, pgs. 8-9.)

In reply, Defendants argue that the parties mutually agreed to postpone the October 4, 2022, deposition given the continuing of the trial. (Reply Mot., pg. 6.) Defendants also argue that on three separate occasions, their counsel stated that they would be willing to move the deposition date if the stated date was inconvenient for Plaintiff’s counsel or for the witness. (Reply Mot., pg. 3; Decl. Aitelli, ¶¶ 11, 17, 20, Ex. G, K, M.) Thus, they argue that they did not unilaterally set deposition on those three occasions ¿ September 6, 2022, April 11, 2023, and November 17, 2023. Rhater, those were starting points for discussion, but for some reason, even though Plaintiff is responsible for making her expert available for deposition, her counsel never made a concerted effort to set the deposition of that witness.

The Court finds Plaintiff’s conduct unreasonable. Expert discovery closed on January 2, 2024. Defendants have not had the opportunity to depose Dr. Gersh or, as discussed further below, learn her opinions through her reports and writings. On three separate occasions, Defendants’ counsel has communicated their flexibility in scheduling Dr. Gersh, but Plaintiff offers no explanation for her rigidity, including any explanation for why she could not reschedule a deposition upon receiving the deposition notice on April 11, 2023. The Court notes that Plaintiff has only explained why she could not reschedule the deposition notice served on November 17, 2023. In addition, as referenced in footnote 2, the Court does not understand why Plaintiff would depose her own expert after the close of expert discovery and assert that the instant motion is moot. Accordingly, the Court grants the motion.

Separately, Defendants assert that they requested reports and writings of Dr. Gersh, but Plaintiff has not produced them. (Decl. Aitelli, ¶ 27.) Plaintiff asserts that Dr. Gersh has offered her opinion in the declaration Plaintiff submitted in opposition to Defendants’ motion for summary judgment; thus, any further report and writing is unnecessary.

This is not what the code states. (Code Civ. Proc., § 2034.10.) A declaration cannot substitute for the expert’s reports and writings under the code. Further, Plaintiff submitted Dr. Gersh’s declaration as part of the motion for summary judgment. Defendants request Dr. Gersh’s reports and writings for her expert opinion testimony at trial. The declaration serves a different purpose than Dr. Gersh’s reports and writings.

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]In their Reply, Defendants acknowledge that the October 4 deposition did not go forward based on a mutual agreement, which leads the Court to question why in his Declaration, Defendants’ counsel stated, and even emphasized through the use of italics, that Plaintiff did not produce Dr. Gersh for deposition on October 4. (See Decl. Aitelli, ¶ 14.)

[2] Much like defendants’ statement regarding Dr. Gersh not being made available referenced in footnote 1 is counterproductive to Defendants’ argument, this effort to thwart the rules by taking a deposition of your own witness when discovery is closed is counterproductive to Plaintiff’s argument.