Judge: Lisa R. Jaskol, Case: 19STCV21428, Date: 2024-03-05 Tentative Ruling
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Case Number: 19STCV21428 Hearing Date: March 5, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
PROCEDURAL HISTORY
On June 19, 2019, Plaintiff Kwang Ho Lee (“Plaintiff”) filed this action against Defendants Restaurant Depot, LLC and Does 1-50 for premises liability and negligence.
On July 25, 2019, Defendant RD America, LLC (erroneously sued as Restaurant Depot, LLC) (“Defendant”) filed an answer.
On December 28, 2023, Defendant filed a Motion to Submit Tardy Supplemental Expert Witness Designation of a Neuroradiologist to be heard on March 5, 2024. On February 27, 2024, Plaintiff filed an untimely opposition. On February 28, 2024, Defendant filed a reply. On March 4, 2024, the Court granted Plaintiff’s ex parte application for relief from the late filing of the opposition.
Trial is currently scheduled for March 11, 2024.
PARTIES’ REQUESTS
Defendant asks the Court to rule that Defendant’s supplemental designation of expert witness served December 21, 2023 is timely.
Plaintiff asks the Court to deny the motion.
Code of Civil Procedure section 2034.610 provides in part:
“(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following:
“(1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.
* * *
“(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”
(Code Civ. Proc., § 2034.610, subds. (a)(1), (b), (c).)
Code of Civil Procedure section 2034.620 provides:
“The court shall grant leave to augment or amend an expert witness list or declaration 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 Civ. Proc., § 2034.620.)
DISCUSSION
A. Background
On September 11, 2023, the parties exchanged expert witness information. Afterward, on October 10, 2023, the Court continued the trial from October 31, 2023 to January 16, 2024 in response to Plaintiff’s ex parte application. However, the Court denied Plaintiff’s request to continue or reopen discovery without prejudice. On December 28, 2023, the Court continued the trial to February 26, 2024 in response to Plaintiff’s ex parte application but again denied the request to continue or reopen discovery without prejudice. On February 22, 2024, based on the parties’ stipulation, the Court continued the trial to March 11, 2024, but did not reopen discovery. As a result, discovery and related dates remained tied to the previous October 31, 2023 trial date.
On October 25, 2023, Plaintiff served an amended expert witness designation adding neuroradiologist Ammar Chaudhry, M.D. (“Dr. Chaudhry”). The parties scheduled Dr. Chaudhry’s deposition for November 27, 2023. A few minutes before the deposition began, Plaintiff provided several thousand MRI images from Dr. Chaudhry’s case file to Defendant. The scans had been completed two years before the deposition and were the basis for Dr. Chaudhry’s conclusion that Plaintiff suffered a traumatic brain injury.
Defendant subsequently retained neuroradiologist Barry Pressman, M.D. (“Dr. Pressman”) to review the scans and respond to Dr. Chaudhry’s opinions. On December 21, 2023, Defendant served a supplemental expert designation of Dr. Pressman. Defendant offered to make Dr. Pressman available for deposition at Plaintiff’s request.
B. Timeliness
A motion to augment a party’s expert witness list “shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit . . . .” (Code Civ. Proc., § 2034.610, subd. (b).) However, “[u]nder exceptional circumstances, the court may permit the motion to be made at a later time.” (Ibid.)
Defendant filed its motion to augment the expert witness list after the close of discovery. Therefore, Defendant was required to establish the existence of exceptional circumstances. (See Code Civ. Proc., § 2034.610, subd. (b).) Defendant does not address the requirement that a moving party show exceptional circumstances to file a motion to augment an expert witness list after the close of discovery.
Plaintiff’s October 25, 2023 amended designation adding Dr. Chaudhry and Plaintiff's production of MRI images at Dr. Chaudhry’s November 27, 2023 deposition do not constitute exceptional circumstances justifying the filing of Defendant's motion after the close of discovery. Defendant could have objected to Plaintiff’s designation of Dr. Chaudhry under Code of Civil Procedure section 2034.300 and sought to exclude his testimony. Defendant also could have filed a noticed motion to reopen discovery. Because Defendant had alternative means of addressing Plaintiff's amended expert witness designation and production of MRI images, the Court finds they do not constitute exceptional circumstances for purposes of Code of Civil Procedure section 2034.610, subdivision (b).
The Court denies the motion as untimely.
CONCLUSION
The Court DENIES Defendant RD America, LLC’s Motion to Submit Tardy Supplemental Expert Witness Designation of a Neuroradiologist.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.