Judge: Michael E. Whitaker, Case: 19STCV16679, Date: 2023-02-28 Tentative Ruling

Case Number: 19STCV16679    Hearing Date: February 28, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Samantha Kosai (Plaintiff) sued Defendants University of Southern California and Staff Pro, Inc. (collectively, Defendants) based on injuries she alleges she sustained when a golf cart collided with her while she was walking through Defendant University of Southern California’s campus.  Defendants move to amend their expert witness list to replace their two biomechanic and accident reconstruction experts – Dr. Kenneth Solomon and Babak Malek – with one expert, Dr. Alfred Bowles.  Plaintiff filed a notice of non-opposition of February 14, 2023.

ANALYSIS

Per Code of Civil Procedure section 2034.610, subdivision (a), “On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to…[a]ugment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.”  (Code Civ. Proc., § 2034.610, subd. (a)(1).)

In ruling on a motion to augment an expert witness designation, the court must take into account “the extent to which the opposing party has relied on the list of expert witnesses . . . ,” and must determine that the opposing party “will not be prejudiced in maintaining that party’s action or defense on the merits.”    (Code Civ. Proc., § 2034.620, subd. (a)-(b).)  Additionally, the court must determine that “[t]he 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 witness . . . ,” or that “[t]he 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: [¶] Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. [¶] 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.”  (Code Civ. Proc., § 2034.620, subd. (c).)  Finally, the moving party must “mak[e] the expert available immediately for a deposition.”  (Code Civ. Proc., § 2034.620, subd. (d).)  The court may also condition leave to amend on any other term the court deems just.  (Ibid.)

Here, Defendants advance the declaration of counsel for Defendants, Steven D. Smelser (Counsel).  Counsel avers that on March 9, 2022, Defendants’ prior counsel designated among others, Dr. Kenneth Solomon and Babek Malek as their expert witnesses on bio-mechanic and accident reconstruction.  (Declaration of Steven D. Smelser, ¶ 3.)  Counsel states that on April 26, 2022, Defendants’ current counsel filed a Substitution of Attorneys.  (Declaration of Steven D. Smelser, ¶ 7.) 

On May 13, 2022, the parties mutually agreed to extend Plaintiff’s supplemental expert designation deadline from May 13, 2022 to July 12, 2022 in order to allow newly substituted Defendants’ counsel to assess the opinions of Defendants’ accident reconstruction and biomechanic experts – Dr. Solomon and Mr. Malek.  (Declaration of Steven D. Smelser, ¶ 9.)   Counsel avers that he met and conferred with Plaintiff’s counsel and explained that Defendants would like to replace their previously designated expert witnesses, Dr. Solomon and Mr. Malek, with Dr. Bowles in the areas of biomechanics and accident reconstruction.  (Declaration of Steven D. Smelser, ¶ 10.)  It was Counsel’s understanding that Plaintiff’s Counsel was amenable to Defendants preparing an amended designation in lieu of a motion for leave to amend the expert designation.  Declaration of Steven D. Smelser, ¶ 10.)  However, on July 20, 2022, Plaintiff served an objection to Defendants’ Amended Designation of Expert Witnesses on the grounds that Defendants failed to move under Code of Civil Procedure section 2034.610 to amend the expert designation.  Declaration of Steven D. Smelser, ¶ 13.) 

Moreover, counsel for Defendants declares as follows:

·         There is absolutely no prejudice to Plaintiff from allowing Defendants to amend their expert designations. Not a single expert deposition has been taken in this case. Plaintiff has not relied on Defendants’ designation of Dr. Solomon and Mr. Malek in any substantive way in preparing their case for trial.

·         Conversely, Plaintiff has relied upon Defendants’ amended designation of Dr. Bowles to designate supplemental experts. Plaintiff could not designate supplemental/rebuttal experts until Defendants provided information regarding the anticipated testimony and opinions of Defendants’ biomechanic and accident reconstruction expert witnesses. Such information was provided on July 8, 2022 when I told Mr. Azizi that Defendants wanted to amend their expert designation by replacing Dr. Solomon and Mr. Malek with Dr. Bowles. Furthermore, Dr. Bowles is expected to testify on the exact same subject matter as Dr. Solomon. Allowing Defendants to amend their expert designation would save Plaintiff time and money from having to depose only one expert instead of two.

·         Defendants would not in the exercise of reasonable diligence have determined to designate Dr. Bowles. Yukevich | Cavanaugh substituted into the case on April 26, 2022. The parties intended to provide additional time to Yukevich | Cavanaugh to assess the opinions of Defendants’ accident reconstruction and biomechanic experts—Dr. Solomon and Mr. Malek. I reached out to Plaintiff’s counsel as soon as I was able to confirm the anticipated expert opinions and testimony of Dr. Solomon, Mr. Malek, and Dr. Bowles regarding this matter.

·         Defendants’ failure to bring a motion pursuant to Code of Civil Procedure 2034.610 to amend expert their designation is based on the mistaken belief that Plaintiff would honor the July 8, 2022 agreement between the parties allowing such amendment. Thus, Defendants’ were completely surprised when Plaintiff objected to the amended expert designation on the grounds that Defendants did not obtain leave of Court pursuant to Code of Civil Procedure 2034.610.

(Declaration of Steven D. Smelser, ¶¶ 15-18.)

The Court finds Defendants have established a factual and legal basis to amend their list of expert witnesses and were not dilatory in seeking to amend their expert witness list.  The Court also finds that Plaintiff will not suffer any prejudice since expert depositions have not yet been taken.  In particular, as counsel for Defendants notes, Plaintiff has not relied on Defendants’ designation of Dr. Solomon and Mr. Malek in any substantive way in preparing the case for trial. 

CONCLUSION AND ORDER

            Therefore, the Court grants Defendants’ motion for leave to amend their expert witness list per Code of Civil Procedure section 2034.610, by replacing Dr. Solomon and Mr. Malek with Dr. Bowles as their expert on biomechanics and accident reconstruction. 

Defendants shall give notice of the Court’s ruling and file a proof of service of such.