Judge: Lisa R. Jaskol, Case: 20STCV13795, Date: 2025-04-03 Tentative Ruling
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Case Number: 20STCV13795 Hearing Date: April 3, 2025 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On April 8, 2020, Plaintiff Bennett Falaughn (“Plaintiff”) filed this action against Defendants Los Angeles County Metropolitan Transportation Authority (“Metro”) and Does 1-250 for “public entity liable for tort of public employee in course and scope of public employment [Govt. Code §§815.2(a), 820(a)].”
On June 5, 2020, Metro filed an answer. On June 12, 2020, Metro filed an amended answer.
On October 14, 2020, Plaintiff amended the complaint to include Defendant Javier Orozco as Doe 1 (“Orozco”). On November 24, 2020, Orozco filed an answer.
On February 25, 2025, Metro filed a motion to exclude Plaintiff’s expert witness Neil Ghodadra, M.D. The motion was set for hearing on April 3, 2025. Plaintiff has not filed an opposition.
Trial is currently scheduled for August 6, 2025.
PARTY’S REQUEST
Metro asks the Court to exclude Plaintiff’s expert witness Neil Ghodadra, M.D.
LEGAL STANDARD
Code of Civil Procedure section 2034.300 provides:
“Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:
“(a) List that witness as an expert under Section 2034.260.
“(b) Submit an expert witness declaration.
“(c) Produce reports and writings of expert witnesses under Section 2034.270.
“(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).”
(Code Civ. Proc., § 2034.300.)
Code of Civil Procedure section 2034.270 provides:
“If a demand for an exchange of information concerning expert trial witnesses includes a demand for production of reports and writings as described in subdivision (c) of Section 2034.210, all parties shall produce and exchange, at the place and on the date specified in the demand, all discoverable reports and writings, if any, made by any designated expert described in subdivision (b) of Section 2034.210.”
(Code Civ. Proc., § 2034.270.)
DISCUSSION
Metro asks the Court to order that Plaintiff’s expert witness Neil Ghodadra, M.D. may not testify at trial because Plaintiff failed to make Dr. Ghodadra available for deposition. Metro also argues that Plaintiff withheld Dr. Ghodadra’s expert file, including his life care plan, until February 12, 2025. Plaintiff has not filed an opposition to Metro’s motion.
On June 10, 2024 and January 6, 2025, Plaintiff designated Dr. Ghodadra as his orthopedic surgeon expert witness.
On June 11, 2024, Metro noticed Dr. Ghodadra’s deposition for July 2, 2024. At Dr. Ghodadra’s request, Metro rescheduled the deposition for July 19, 2024. Plaintiff did not provide Dr. Ghodadra’s expert file before the July 19, 2024 deposition. On July 19, 2024, Plaintiff informed Metro that Dr. Ghodadra would provide a new date for his deposition. Metro took a certificate of non-appearance.
Metro requested new dates for Dr. Ghodadra’s deposition. Plaintiff did not provide available dates.
On January 6, 2025, Metro noticed Dr. Ghodadra’s deposition for January 30, 2025. On January 7, 2025, Plaintiff served an objection to the deposition notice based on Dr. Ghodadra’s availability.
On January 16, 2025, Metro noticed Dr. Ghodadra’s deposition for February 17, 2025, when Plaintiff’s counsel said Dr. Ghodadra was available. On February 12, 2025, Plaintiff gave Metro access to Dr. Ghodadra’s expert file.
The morning of February 17, 2025, at Plaintiff’s counsel’s request, Metro moved the deposition’s start time from 11:30 a.m. to 11:00 a.m. Later that morning, Plaintiff’s counsel informed Metro’s counsel that Dr. Ghodadra was running late and would not be available until 12:00 noon. Metro’s counsel declined to move the deposition time again. At 11:45 a.m., when Dr. Ghodadra did not appear, Metro’s counsel took a certificate of non-appearance.
Based on this evidence, the Court finds that Plaintiff has not acted unreasonably in failing to produce Dr. Ghodadra for a deposition or failing to produce Dr. Ghodadra’s expert file and life care plan prior to February 12, 2025. Metro has shown that Dr. Ghodadra did not appear for a scheduled deposition on July 19, 2024. Metro does not state whether Dr. Ghodadra appeared for the February 17, 2025 deposition after Metro’s 11:45 a.m. deadline. At most, Metro’s evidence suggests that Plaintiff and Dr. Ghodadra attempted to comply with Metro’s deposition requests but were thwarted by Dr. Ghodadra’s busy schedule. Metro has not shown that Plaintiff and Dr. Ghodadra have refused to schedule and attend a deposition.
Metro argues that on January 6, 2025, Plaintiff’s counsel “falsely testified in his Declaration that ‘At this time. Dr. Ghodadra does not possess any discoverable reports or writing to be produced pursuant to Code of Civil Procedure Section 2034.010 et seq.’ ” (Motion p. 2.) According to Metro, the statement was false because Dr. Ghodadra’s file contained a life care plan dated July 18, 2024. Metro contends that, while Metro designated Dr. Ghodadra as an orthopedic surgeon expert, Plaintiff’s production of Dr. Ghodadra’s expert file containing the life care plan on February 12, 2025 was “the first indication whatsoever that Dr. Ghodadra would be attempting to act as a life care planner in this trial . . . .” (Motion p. 2.)
The Court denies Metro’s request to exclude Dr. Ghodadra based on counsel’s failure to reference Dr. Ghodadra’s life care plan in counsel’s January 6, 2025 declaration. Even assuming that Plaintiff’s counsel should have disclosed the life care plan prior to February 12, 2025, trial is currently scheduled for August 6, 2025, giving Metro time to evaluate the life care plan and examine Dr. Ghodadra about it at a deposition.
CONCLUSION
The Court DENIES Defendant Los Angeles County Metropolitan Transportation Authority’s motion for an order that Plaintiff Bennett Falaughn’s expert witness Neil Ghodadra, M.D. may not testify at trial.
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.