Judge: Lisa R. Jaskol, Case: 22STCV08926, Date: 2024-01-24 Tentative Ruling
Case Number: 22STCV08926 Hearing Date: January 24, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On March 14, 2022, Plaintiffs Maria Ramos (“Plaintiff”) and Nina Carrillo filed this action against Defendants Andrew Jacobs (“Defendant”) and Does 1-100 for motor vehicle tort and general negligence.
On April 13, 2022, Defendant filed an answer.
On September 29, 2023, the parties stipulated to continue the trial from December 5, 2023 to January 2, 2024 and stipulated that all discovery and motion cut-off dates would be based on the new trial date. The Court granted the stipulated extension request.
On December 27, 2023, Plaintiff filed a motion to reopen expert discovery to take a second deposition of non-retained treating physician Lawrence Miller, M.D., to be heard on January 24, 2024. On January 16, 2024, Defendant filed an opposition. On January 22, 2024, Plaintiff filed a reply.
On December 28, 2023, the Court granted Plaintiff’s ex parte application to continue the trial. The Court continued the trial to March 11, 2024. The Court did not reopen discovery.
Trial is currently scheduled for March 11, 2024.
PARTIES’ REQUESTS
Plaintiff requests that the Court reopen expert discovery so that Plaintiff can take a second deposition of non-retained treating physician Lawrence Miller, M.D.
Defendant requests that the Court deny the motion.
LEGAL STANDARD
A. Motion to reopen discovery
Code of Civil Procedure section 2024.020 provides:
“(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.
“(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.”
(Code Civ. Proc., § 2024.020.)
Code of Civil Procedure section 2024.050 provides:
“(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:
“(1) The necessity and the reasons for the discovery.
“(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.
“(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.
“(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.
“(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
(Code Civ. Proc., § 2024.050.)
B. Motion to take a second deposition
Code of Civil Procedure section 2025.610 provides in part:
“(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.
“(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.”
(Code Civ. Proc., § 2025.610, subds. (a), (b).)
DISCUSSION
Plaintiff asks the Court to re-open expert discovery because Dr. Miller recently treated Plaintiff and has new opinions. Plaintiff also asks the Court for leave to take Dr. Miller’s second deposition.
On July 24, 2023, Plaintiff served a “Designation of Expert Witness Information” under Code of Civil Procedure section 2034.260. The designation listed Dr. Miller as a non-retained expert “whose expert opinions Plaintiffs expect to offer at trial.” It did not list any retained experts.
On August 18, 2023, Defendant took Dr. Miller’s deposition. At the deposition, Dr. Miller stated that he had discussed all of his opinions about Plaintiff and had no other opinions.
On November 6, 2023, after learning that Plaintiff was planning to return to Dr. Miller for additional evaluation, Defendant’s counsel asked if Plaintiff’s counsel wished to “rely on the current 2034 [expert] designations or pick a new date to re-designate?” Plaintiff’s counsel responded, “we can keep the current expert designations and see what happens with the visit to Dr. Miller.”
On November 14, 2023, Dr. Miller evaluated Plaintiff for a post-cervical epidural injection. Dr. Miller reviewed medical records provided by Plaintiff’s counsel, made a report, and ordered an updated cervical MRI. On November 26, 2023, the cervical MRI was performed. Plaintiff was scheduled for a post-MRI evaluation with Dr. Miller on January 9, 2024.
On December 28, 2023, Plaintiff’s counsel emailed Defendant’s counsel asking: “As a feeler, please let me know if the carrier [is] willing to stipulate to plaintiff amending the expert designation to name retained experts . . . This is a meet and confer attempt.” Defendant’s counsel denied the request for a stipulation.
Plaintiff argues that Dr. Miller is a non-retained treating physician with the most up-to-date opinion on Plaintiff’s condition and his testimony is critical to establish Plaintiff’s present and future medical condition.
In opposition, Defendant argues that Plaintiff is attempting to convert non-retained treating physician Dr. Miller into a retained expert and obtain, through Dr. Miller’s deposition, trial opinions which Plaintiff is not entitled to obtain because of her failure to designate Dr. Miller as a retained expert.
“ ‘A treating physician is a percipient expert, but that does not mean that his testimony is limited only to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony. As the legislative history clarifies, what distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff's injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion.’ ” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 245 (Belfiore-Braman), quoting Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35-36 (Schreiber).
“In some cases, it is possible for a treating physician to be transformed into a retained expert, such as where counsel supplies the physician with ‘additional information and ask[s] him to testify at trial to opinions formed on the basis of that additional information.’ ” (Belfiore-Braman, supra, 25 Cal.App.5th at p. 246, quoting Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1521.) “When that occurs, the treating physician goes beyond the traditional role of examining a patient by receiving additional materials from counsel after his deposition and using them to form an opinion about another doctor's adherence to the standard of care, and the rules for disclosing new information from a retained expert apply.” (Ibid.; Schreiber, supra, 22 Cal.4th at p. 38; see Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 141 [plaintiffs were entitled to present testimony, outside of expert witness disclosure rules, from nonretained treating physician on subject of reasonable value of medical services, “as long as such testimony is based on facts acquired in the physician-patient relationship or otherwise acquired independently of this litigation,” but not acquired for the purpose of forming and expressing an opinion in preparation for trial].)
The Court has considered the factors listed in Code of Civil Procedure section 2024.050 and grants the motion to reopen expert discovery for the purpose of taking a second deposition of Dr. Miller. The Court also finds good cause and grants the motion to take a second deposition of Dr. Miller. The Court expresses no opinion on whether Dr. Miller’s testimony is admissible at trial on any particular subject.
CONCLUSION
The Court GRANTS Plaintiff Maria Ramos’s motion to reopen expert discovery for the purpose of taking a second deposition of non-retained treating physician Lawrence Miller, M.D. Expert discovery for this purpose and related deadlines are reopened and will be based on the March 11, 2024 trial date.
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.