Judge: Lee W. Tsao, Case: 21STCV13187, Date: 2023-05-04 Tentative Ruling

Case Number: 21STCV13187    Hearing Date: May 4, 2023    Dept: C

DREWS v. PIH HEALTH HOSPITAL – WHITTIER

CASE NO.:  21STCV13187

HEARING:  05/04/23

#5

TENTATIVE ORDER

Plaintiff’s Motion to Compel Justin Braverman, M.D. to Answer Questions at Deposition is DENIED.  

Opposing Party to give Notice.

The following questions are at issue:

1.    “Okay. And then it mentions his hemoglobin dropping to 6.9. I understand that you’re saying you were called before this note was written, but is that concerning to you?”

2.    “Do you believe that an endoscopy would have saved Mr. Drews’ life?”

3.    “Who do you feel was in charge of Mr. Drews’ care between the hours of 7:00 p.m. on February 6, 2020 and 6:00 a.m. February 7, 2020?”

4.    “I know you testified earlier about these comorbidities that Mr. Drews was experiencing, you know, before you even did the gastric bypass. Do you think that makes him at a heightened risk of, you know, dying from something like a GI bleed?”

5.    “Okay. What about as it pertains to gastric bypass surgeries? Can you comment on the standard of care with respect to that?”

In Opposition, Defendant Justin Braverman, M.D. argues that Plaintiff’s Motion should be denied because Dr. Braverman has not been designated as an expert in this case, and Plaintiff is prohibited from soliciting expert testimony from people who are not designated experts.

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP §2025.480(a).)

The Motion is DENIED. The prohibition of questions calling for legal conclusions in the deposition of a witness is well established. (Wilson v. Richmond Elementary School Dist. (1957) 148 Cal.App.2nd 433, 439-440.) Questions in deposition about legal contentions are not permissible. (Rifkind v. Sup. Ct. (1994) 22 Cal.App.4th 1255, 1259.) “Questions to the defendant physicians about their impressions and reasons for their action or lack of action at the time the medical procedure was performed are, of course, entirely appropriate…. But… questions about after-the-fact opinions and impressions of the physicians stand in quite another light. [¶] The only argument presented to justify that inquiry is that the physicians might be designated as defense experts on the propriety of the procedures used in the delivery. Should they be so designated, a full inquiry into their present opinions would be entirely appropriate. But… the inquiry is not appropriate until and unless there is a designation.” (County of Los Angeles v. Sup. Ct. (1990) 224 Cal.App.3d 1446, 1455-1456.)

Defendant’s request for sanctions is GRANTED. Plaintiff and their counsel of record are ORDERED to pay Defendant JUSTIN BRAVERMAN, M.D. and his counsel of record sanctions in the amount of $750.00 ($250/hr. x 3 hrs.) by no later than 30 days from the date of the Court’s issuance of this Order. This date may be extended per agreement of the parties.