TENTATIVE RULING

Defendants The Regents of the University of California and V. Reggie Edgerton, Ph.D.’s Motion to Bifurcate and Try First Issues of Statute of Limitation Before All Other Issues is DENIED.

Defendants The Regents of the University of California and V. Reggie Edgerton, Ph.D. to give notice.

REASONING

Defendants The Regents of the University of California and V. Reggie Edgerton, Ph.D. (“Defendants”) move the Court for an order bifurcating the issues of the applicable statutes of limitation before trying the issues of liability or damages. In the Court’s July 28, 2023, ruling denying Defendants’ motion for summary judgment, the Court stated that the issue of tolling based on purported fraud was a matter for the trier of fact to determine. (Order dated July 28, 2023, at p. 4.) Defendants argue that severance of a statute of limitations defense is mandatory pursuant to Code of Civil Procedure section 597.5, which provides as follows:

In an action against a physician or surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, veterinarian, or a licensed hospital as the employer of any such person, based upon the person’s alleged professional negligence, or for rendering professional services without consent, or for error or omission in the person’s practice, if the answer pleads that the action is barred by the statute of limitations, and if any party so moves or the court upon its own motion requires, the issues raised thereby must be tried separately and before any other issues in the case are tried. If the issue raised by the statute of limitations is finally determined in favor of the plaintiff, the remaining issues shall then be tried.

Plaintiff Xander Mozejewski (“Plaintiff”) argues that bifurcation is not warranted here because this is not a medical malpractice claim, Defendants are not healthcare providers, and Plaintiff’s causes of action are so intertwined that bifurcation would cause an unnecessary waste of judicial resources, time, and expense, and Plaintiff would be prejudiced. While the Court rejected Defendants’ arguments in their motion as to medical malpractice, finding that such a claim had not been alleged, the Court made no statement that Plaintiff’s lack of informed consent claim did not arise out of purported negligence in a medical context. It is clear that Plaintiff’s claim for lack of informed consent intends to hold Defendants liable as providers of medical treatment and their failure to properly disclose the risks of the clinical trial to Plaintiff. (Third Am. Compl. ¶¶ 48-55.)

However, the Court finds that bifurcation under Code of Civil Procedure section 597.5 is not required here. Defendants fail to set forth how Dr. Edgerton qualifies under the statute, i.e., Code of Civil Procedure section 597.5 appears to apply to medical professionals only, and Dr. Edgerton is not alleged to be a medical professional, despite Plaintiff’s lack of informed consent claim arising out of medical treatment. Of all the professions set forth in Code of Civil Procedure section 597.5, Dr. Edgerton does not appear to qualify as any one of them.

Code of Civil Procedure sections 597, 598, and 1048, subdivision (b), allow the Court discretion to try the statute of limitations defense first, but the Court finds that bifurcation here would require presentation of the same evidence twice. Defendants’ statute of limitations defense focuses on invalidating Plaintiff’s contention that Defendants defrauded him, which is an integral part of Plaintiff’s claims for breach of contract and failure to obtain informed consent. The Court need not determine at this juncture the applicable statute of limitations and its application, as this is a matter for the trier of fact.

Defendants further assert that Plaintiffs have not specifically set forth Health & Safety Code Section 24170, the Protection.  However, Plaintiff is not foreclosed from amending his complaint as Health & Safety Code Section 24170 essentially mirrors the common law negligence claim that Plaintiff has advanced in the lack of informed consent claim since that claim was pled.  H&S Code Section 24170 states, "This chapter shall be known and may be cited as the Protection of Human Subjects in Medical Experimentation Act.   H&S Code Section 24172 sets for the Bill of Rights of human subjects. 

Defendants also assert that Insurance Code Section 11583 did not toll the statute of limitation as payment by one defendant where notice is provided inures to the benefit of other defendants as well.  Insurance Code Section 11583 provides,

No advance payment or partial payment of damages made by any person, or made by his insurer under liability insurance as defined in subdivision (a) of Section 108, as an accommodation to an injured person or on his behalf to others or to the heirs at law or dependents of a deceased person because of an injury or death claim or potential claim against any person or insured shall be construed as an admission of liability by the person claimed against, or of that person's or the insurer's recognition of such liability, with respect to such injured or deceased person or with respect to any other claim arising from the same accident or event. Any such payments shall, however, constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person which does not expressly take into account such advance payments. Any person, including any insurer, who makes such an advance or partial payment, shall at the time of beginning payment, notify the recipient thereof in writing of the statute of limitations applicable to the cause of action which such recipient may bring against such person as a result of such injury or death, including any time limitations within which claims are required to be made against the state or any local public entity when such payments are made on behalf of such public entities. Failure to provide such written notice shall operate to toll any such applicable statute of limitations or time limitations from the time of such advance or partial payment until such written notice is actually given. That notification shall not be required if the recipient is represented by an attorney.

However here, under the theory of informed consent for violation of health and safety regulations even if the notification by letter applies, Plaintiff filed his action within the 3 year statute of limitations for informed consent.  

For these reasons, Defendants The Regents of the University of California and V. Reggie Edgerton, Ph.D.’s Motion to Bifurcate and Try First Issues of Statute of Limitation Before All Other Issues is DENIED.