Judge: Lee S. Arian, Case: 22STCV24548, Date: 2024-10-22 Tentative Ruling
Case Number: 22STCV24548 Hearing Date: October 22, 2024 Dept: 27
Hon. Lee S. Arian, Dept 27
MOTION TO AMEND EXPERT DESIGNATION
Hearing Date: 10/22/24¿
CASE NO./NAME: 22STCV24548 DAVID GONZALEZ
POLANCO vs MANIK MKHITARYAN, et al.
Moving Party: Defendants Finchey
Corporation and Manik Mkhitaryan
Responding Party: Plaintiff¿
Notice: Sufficient¿
Ruling: THE COURT WILL HEAR ARGUMENT ON THE MOTION
TO AMEND EXPERT DESIGNATION; THE REQUEST FOR SANCTIONS IS DENIED
Background
On July 29, 2022,
Plaintiff filed the present auto accident case against Manik Mkhitaryan, the
driver of the vehicle that rear-ended Plaintiff, and Finchey Corporation dba
Pacific BMW, the owner of the vehicle and employer of Defendant Mkhitaryan.
Trial was originally
set for May 28, 2024. The parties initially designated experts on April 9,
2024, with Pacific BMW designating four (4) experts.
Due to impacted trial
schedules and Defendants' desire to depose several of Plaintiff’s medical
providers, the parties stipulated to continue trial to September 24, 2024, and
stipulated to continue all related trial matters, including expert designation,
to follow the new trial date.
On July 12, 2024,
Defendants served a new Demand for Exchange of Experts and set the date of the
exchange for August 5, 2024.
On August 5, 2024, the
parties exchanged expert designations. Defendants designated only one expert,
Mark J. Spoonamore, MD.
On August 19, 2024, in
an email exchange between the parties, defense counsel was informed that they
had designated only one expert – Mark J. Spoonamore, MD. The email from
Plaintiff to defense counsel states: "While defense has ONE expert, you
have failed to provide his (Dr. Spoonamore) availability." To which
counsel replied, "Can you give me a time estimate for Spoonamore?"
In September 2024,
Plaintiff’s experts prepared their reports and sat for their depositions with
the understanding that Pacific BMW had designated only one expert—Mark J.
Spoonamore, MD, orthopedic surgeon. [Nematollahi Decl., ¶ 19.]
On September 10, 2024,
Pacific BMW, without prior notification, added three additional experts (Ken
Solomon, PhD, Phillip Rake, D.C., Michael Millar, D.C.) to the Joint Proposed
Witness List.
On September 12, 2024,
Plaintiff filed an Ex Parte Application to Strike Defendants’ Undisclosed
Expert Witnesses. On the same date, Defendants filed an Ex Parte Application to
Amend Expert Disclosure. The Court denied both applications.
On September 17, 2024,
Defendants filed another Ex Parte Application to Continue Trial and for an
Order Shortening Time for Notice of Defendants’ Motion to Re-open Discovery and
Amend Defendants’ Expert Witness Disclosure. The Court denied the application
in its entirety, finding that the "moving party was not diligent in
addressing the issue, having waited one month to bring the ex parte."
On September 30, 2024,
all parties appeared in this Court, announced ready for trial a second time and
were deemed ready by the Court. However, due to a lack of court availability,
the parties were ordered to stipulate to a date to return for trial. The
parties stipulated to return for trial on October 29, 2024.
Defendants now seek
leave of Court to amend their expert designation and add three additional
experts.
Legal Standard
The court shall grant leave to
augment or amend an expert witness list 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 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 either of
the following:¿
¿
(1) The moving party would not in the
exercise of reasonable diligence have determined to call that expert witness or
have decided to offer the different or additional testimony of that expert
witness.¿
¿
(2) The moving party failed to
determine to call that expert witness, or to offer the different or additional
testimony of that expert witness as a result of mistake, inadvertence,
surprise, or excusable neglect, and the moving party has done both of the following:¿
¿
(A)
Sought leave
to augment or amend promptly after deciding to call the expert witness or to
offer the different or additional testimony.
(B) Promptly
thereafter served a copy of the proposed expert witness information concerning
the expert or the testimony described in Section 2034.260 on all other parties
who have appeared in the action.
(d) Leave to augment or amend is conditioned on
the moving party making the expert available immediately for a deposition under
Article 3 (commencing with Section 2034.410), 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 of Civ. Proc. § 2034.620.)
Discussion
There is no dispute
between the parties that in April 2024, Defendants disclosed four expert
witnesses, and in August 2024, only one expert was designated. While Plaintiff
argues that the mistake was inexcusable, he does not claim that this was an
intentional or deliberate tactical decision. The primary issues are whether the
mistake was excusable and whether the amendment would result in any prejudice
to Plaintiff.
Excusable Mistake
Defendants allege that
when the expert disclosure was prepared for August 2024, counsel’s legal staff
inadvertently used the wrong document file. Counsel did not realize that the
incorrect document had been prepared and served and defense counsel continued
to prepare for trial with the expectation of presenting the testimony of all
four retained experts. This aligns with the type of clerical mistakes that
courts have found excusable. (See Zamora v. Clayborn Contracting
Group, Inc. (2002) 28 Cal.4th 249, 259.)
What the Court in its
prior ex parte order takes issue with is the fact that the mistake
occurred on August 5, 2024, but was not corrected until September 10, 2024. On
August 19, 2024, Plaintiff sent an email to defense counsel stating,
"While defense has ONE expert, you have failed to provide his (Dr.
Spoonamore) availability." Defense counsel was informed that only one
expert had been designated, to which counsel responded, "Can you give me a
time estimate for Spoonamore?" This email shows that Plaintiff informed
defense counsel that only one expert had been designated, yet no action was
taken by Defendants until September 10, 2024, by which time Plaintiff’s experts
had already completed their depositions.
Defendants’ counsel contends
that they did not delay, but rather sought to correct their error as soon as
they realized it. Counsel contends the
email exchange “was in the middle of scheduling expert depositions, and I
interpreted her comment that because plaintiff had only requested the
deposition of only ‘one expert,’ it should have been easier for me to provide
dates for scheduling purposes.” (See Anooshian Dec., par. 6.) Significantly, Defendants did not provide
this explanation to the Court in either of their earlier ex parte applications.
This explanation
contradicts the clear language of the email, which states, “defense has ONE
expert.” Defendants rightly concede, “One can legitimately argue that Ms.
Anooshian should have realized something was odd when she received the
paralegal’s scheduling email….”
In any event, the Court
will hear argument on this issue. It may
be that this was a mistake, but the number of mistakes and apparent lack of
diligence is troubling: (1) initial mistake with only one expert disclosed; (2)
misinterpretation of email and failure to review disclosure to confirm interpretation;
(3) failure to provide a full explanation regarding the alleged initial mistake
in two ex parte applications.
Prejudice
Defendants argue that
Plaintiff was able to rely on Defendants’ earlier April 2024 expert disclosure
to prepare for trial, select his experts, and formulate his case. Defendants
further claim that if the expert designation is amended, Plaintiff’s experts
would only need to review three additional deposition transcripts, which they
characterize as a routine pretrial preparation step. Defendants suggest that
reviewing these transcripts is no different from what occurs in any other case
involving expert disclosures, and therefore, Plaintiff has not suffered any
prejudice.
The Court is dubious of
this argument for at least two reasons.
First, both fact and expert depositions have already been completed, and the
parties were ready to proceed to trial on September 30, 2024, with the trial
only continued due to the unavailability of courtrooms. Allowing Defendants to
amend their expert disclosure at this late stage would inevitably cause further
delay and require yet another trial continuance, even after Defendants have announced
ready.
Second, it appears incredible
to argue that Plaintiff did not rely on the August 2024 expert disclosure.
Plaintiff’s experts have reviewed Defendants’ disclosure, formed their opinions
based on the single designated expert, and completed their depositions as to
their opinions. Introducing three additional experts at this stage would force
Plaintiff’s experts to review new materials, reformulate their opinions, and
undergo additional depositions.
Conclusion
While it is arguable
that defense counsel’s conduct could constitute an excusable mistake, it seems
less arguable that Plaintiff relied on the expert designation and would be
prejudiced as a result. Still, the Court
will hear from the parties on these issues.
The Court does not find
counsel’s mistake to be sanctionable and denies Plaintiff’s request for
sanctions.