Judge: Michael E. Whitaker, Case: 19STCV20201, Date: 2022-12-19 Tentative Ruling

Case Number: 19STCV20201    Hearing Date: December 19, 2022    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 Reyna Ventura (Plaintiff) moves to strike the supplemental expert designation served by Defendant La Luna Lavanderia, Inc. (Defendant), thereby excluding Defendant’s designated experts in the fields of liability and psychology, Brian Sam Iler and Young Bui, Ph.D., as well as Maribel Munoz, M.D., as Plaintiff’s treating physician, from testifying at trial.  Defendant opposes the motion.  Plaintiff replies.

ANALYSIS

Under Code of Civil Procedure section 2034.280, “[w]ithin 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.”  (Code Civ. Proc., § 2034.280, subd. (a).)  “This supplemental list shall be accompanied by an expert witness declaration under subdivision (c) of Section 2034.260 concerning those additional experts, and by all discoverable reports and writings, if any, made by those additional experts.”  (Code Civ. Proc., § 2034.280, subd. (b).)  “The party shall also make those experts available immediately for a deposition under Article 3 (commencing with Section 2034.410), which deposition may be taken even though the time limit for discovery under Chapter 8 (commencing with Section 2024.010) has expired.”  (Code Civ. Proc., § 2034.280, subd. (c).)  A party’s supplemental expert designation is proper where (1) the party seeking to supplement its expert designation complied with its disclosure obligations; (2) there is no indication it acted unreasonably or engaged in gamesmanship; and (3) there is no prejudice to the other party.  (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 498.)

Here, the parties engaged in a mutual expert exchange on October 17, 2022.  (See Declaration of Avetis Nalbandyan, ¶¶ 4, 14, Exhibits C and M.)  In its initial expert witness designation, Defendant designated retained experts Philip Yuan, M.D., an orthopedic surgeon, and Barry Posner, B.S., M.S., a medical billing expert. (Declaration of Bernadette Castillo Brouses, ¶ 4, Exhibit 2.) 

Plaintiff designated retained experts, Andrew Fox, MD, a neurosurgeon, and Mark Burns (Burns), an engineer, regarding “human factors, building codes, and safety and construction issues.” (Declaration of Bernadette Castillo Brouses ¶ 5, Exhibit 3.)     

On November 4, 2022, eighteen days after service of its initial expert witness designation, Defendant served its supplemental designation of Brian Iler (Mr. Iler) as a liability expert, Young Bui (Dr. Bui) as a psychology expert, and Maribel Munoz, M.D. (Dr. Munoz), as a non-retained treating doctor.  (Declaration of Bernadette Castillo Brouses, ¶ 6, Exhibit 4.)  

On November 10, 2022, Plaintiff served an untimely supplemental designation also designating Dr. Munoz as a non-retained treating medical expert. (Declaration of Bernadette Castillo Brouses, ¶ 8, Exhibit 6.)

Plaintiff argues that Defendant’s supplemental expert designations of Mr. Iler, Dr. Bui, and Dr. Munoz are improper as Plaintiff alleges Defendant knew well before the initial designation that the issues of liability, specifically regarding human factors, building codes, and construction safety issues, as well as Plaintiff’s injuries, would be in dispute at trial.   Plaintiff attests Defendant should have been on notice of these likely to be litigated issues based on (1) Plaintiff’s site inspection of Defendant’s laundromat, with Plaintiff’s designated expert witness, Mr. Burns, performing the inspection himself, and (2) Defendant’s knowledge of Dr. Munoz’s treatment of Plaintiff since February 26, 2020. 

In opposition, Defendant contends Defendant initially disclosed the experts Defendant deemed necessary and supplemented its expert designation with Mr. Iler and Dr. Bui based upon Defendant’s designation of Burns.  Further Defendant argues that Plaintiff’s attempt to supplementally designate Dr. Munoz as a non-retained expert invalidates Plaintiff’s argument that Dr. Munoz should not serve as Defendant’s non-retained treating expert in this case. 

In reply, Plaintiff argues that because Plaintiff offered a stipulation on November 17, 2022, that Burns will not testify as to “human factors”, the testimony of Dr. Bui who is designated to testify as to “human factors” is unnecessary.  Further Plaintiff argues that the scope of testimony Mr. Iller and Dr. Bui are designated to address is wider in scope than the topics Burns is designated to testify about.  Thus, there supplemental designation reflects gamesmanship rather than direct responsiveness.  Finally, Plaintiff notes that Defendant has failed to explain why they did not designate Dr. Munoz in their initial expert designation and why it was necessary to add Dr. Munoz in its supplemental designations as a response to Plaintiff’s expert designations.

The Court agrees in part with Plaintiff’s assessment as to Dr. Munoz, finding that Defendant has failed to provide an explanation as to why Dr. Munoz was designated in its supplemental expert designations, rather than its initial, and what in Plaintiff’s expert designation required Defendant to include Dr. Munoz in its supplemental designations.  However, the Court disagrees with Plaintiff as to Mr. Iller and Dr. Bui.  While the Court understands that Defendant, in this case, likely should have anticipated the need for a liability expert, this is not the standard under Du-All.  To the contrary, Du-All strongly criticized the trial court for using this standard. The real issue, therefore, is whether there is evidence of gamesmanship in this case.  Here, the Court finds Plaintiff has not demonstrated that Defendant acted unreasonably or engaged in gamesmanship in his supplemental designation of Dr. Bui and Mr. Iller.  The Court also finds Defendant’s supplemental designations of Dr. Bui and Mr. Iller will not prejudice Plaintiff, as Plaintiff has designated its own expert, Burns[1] who will address overlapping topics with Dr. Bui[2] and Mr. Iller[3].  Further, the parties have ample time before trial to depose their respective experts.  Accordingly, the Court finds Defendant’s supplemental designations of Dr. Bui and Mr. Iller to be proper. 

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion to strike Defendant’s supplemental expert designations is granted in part as to Dr. Munoz and denied in part as to Dr. Bui and Mr. Iller.

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