Judge Lee S. Arian, Case Number: 22STCV31068, Date: 2024-11-13 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV31068, Date: 2024-11-13 Tentative Ruling

Case Number: 22STCV31068 Hearing Date: November 13, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO STRIKE SUPPLEMENTAL EXPERT DESIGNATION

Hearing Date: 11/13/24¿

CASE NO./NAME: 22STCV31068 MISTY STEVENSON vs VICTOR S. KAO, et al.

Moving Party: Plaintiff

Responding Party: Defendant City of Los Angeles

Notice: Sufficient¿

Ruling: DENIED

Prior Hearing

On October 18, 2024, the court issued a tentative order stating:

“the use of supplemental designations is impermissible, such as: (1) adding an expert on subjects already designated by the City in its original exchange; (2) adding experts on new subjects not raised by an opposing party's designation; or (3) substituting for an already-designated expert. [CCP § 2034.280(a); see Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723, 52 Cal.Rptr.2d 456, 460—party dissatisfied with a designated expert's deposition testimony could not call a supplementally named expert to testify on the same subjects at trial.] However, Defendant argues that this situation does not fall under those categories, as Dr. Shanfield, a foot and ankle specialist, is designated to address a subject raised by Plaintiff through her designation of Dr. Ouzounian, also a foot and ankle specialist. Defendant cites Du-All Safety, LLC v. Superior Ct., 34 Cal.App.5th 485, 498–99, for the position that a party has the right to supplement its expert witness exchange by adding experts to cover subjects on which the other party indicates it plans to offer expert testimony, and on which the opposing party had not previously retained an expert to testify.”

This argument, however, is not supported by the evidence. First, Defendant attached no exhibits or declarations, such as one from Dr. Shanfield, attesting to his specialty as a foot and ankle specialist. Second, defense counsel’s declarations regarding both the initial expert disclosure of Dr. Korchek and the supplemental disclosure of Dr.Shanfield show that they are both orthopedic surgeons, and the area of testimony is exactly the same. (Ex. G and Ex. I to Motion.)”

The court heard arguments from both parties and granted Defendant's counsel’s request for leave to file a supplemental response on the issue. The court ordered that the supplemental briefing be completed by October 25.

Analysis

On October 25, 2024, Defendant submitted declarations from Dr. Jeffrey Korchek and Dr. Shanfield. Dr. Korchek, a general orthopedic surgeon, stated that he is not qualified to testify in the specialized field of foot and ankle surgery. In contrast, Dr. Shanfield attested to his qualifications as a foot and ankle surgery specialist.

The key question is whether Defendant may supplement its expert witness exchange to address a subject introduced by Plaintiff’s expert designation, as allowed under Du-All Safety, LLC v. Superior Ct. (2019) 34 Cal.App.5th 485, or whether Defendant is barred from supplementing, as in Fairfax v. Lords (2006) 138 Cal.App.4th 1019, which requires parties to anticipate all issues requiring expert testimony and disclose experts on those issues simultaneously at the outset.

In Fairfax (138 Cal.App.4th 1019), the defendant withheld any expert designation on a critical, anticipated issue—the standard of care in a medical malpractice case—and attempted to designate an expert only after reviewing Plaintiff’s expert disclosure, which the court deemed impermissible. By contrast, in Du-All (34 Cal.App.5th 485), the defendant initially disclosed general experts (a safety consultant and structural engineer) and later supplemented with specialized experts, including a life care planner, after Plaintiff designated experts in these areas. The court found this permissible under Code Civ. Proc., § 2034.280, as Defendant’s supplemental disclosure responded to new, unanticipated areas introduced by Plaintiff’s designations.

Here, Defendant initially designated a general orthopedic surgeon to address musculoskeletal issues broadly, including the foot and ankle. Unlike in Fairfax, where the defendant deliberately withheld an expert designation to "reserve the right" to identify rebuttal experts after seeing Plaintiff's designations, Defendant acted in good faith by designating a generalist without anticipating the need for a foot and ankle subspecialist. In Fairfax, the defendant withheld expert designation on the core issue of standard of care in a medical malpractice case, an essential issue that should have been anticipated. Here, however, Defendant designated an expert on Plaintiff’s injuries, which would have sufficed but for Plaintiff’s subsequent disclosure of a foot and ankle specialist, introducing an unforeseen level of specialization. Although not perfectly aligned, this case is more similar to Du-All, where a supplemental designation was allowed in response to new areas introduced by Plaintiff’s experts.

Furthermore, the Court finds no evidence of bad faith or gamesmanship by Defendant, and Plaintiff is not shown to suffer substantial prejudice beyond having to address a specialized expert. Accordingly, in light of these considerations, Plaintiff’s motion to strike is denied.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.