Judge: Lynne M. Hobbs, Case: 20STCV15818, Date: 2023-07-11 Tentative Ruling

Case Number: 20STCV15818    Hearing Date: February 23, 2024    Dept: 30

NAZMA SULTAN vs LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY

TENTATIVE

Defendant’s motion to exclude the testimony of expert witness Dr. Rappard is DENIED without prejudice to filing this motion in the trial court.

Moving party is ordered to give notice.

Legal Standard

Failure to provide an expert witness declaration or failure to adequately disclose the expert's expected testimony may result in the exclusion of expert opinion. (Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 139.) Section 2034.300 “empowers the court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to produce expert reports and writings as required by section 2034.270. (§ 2034.300, subd. (c).) ... [A] party who fails to [comply] before the specified date does so at its own risk.” (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 952.)

C.C.P. 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).

Failure to comply with expert designation rules may be found to be “unreasonable” when a party's conduct gives the appearance of gamesmanship. (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447, citing Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504.) The operative inquiry is whether the conduct being evaluated will compromise these evident purposes of the discovery statutes: “to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.” (Id. at p. 1504.)

Discussion

Defendant moves to exclude Plaintiff’s expert witness George Rappard, M.D. from testifying at trial, arguing that Dr. Rappard refused to participate in a deposition in good faith. He refused to answer over ten essential and critical questions, only agreeing to one-hour long depositions while appearing at his depositions at least ten minutes late every time, forcing Defendant to take his deposition in three separate occasions.

The court finds that any ruling excluding Plaintiff’s expert witnesses are evidentiary in nature and must be addressed by the trial court. C.C.P. § 2034.300 specifically and appropriately designates that the trial court should hear motions pursuant to this section. Therefore, the motion to exclude the testimony of expert witness Dr. Rappard is DENIED without prejudice to filing this motion in the trial court.