Judge: Michael E. Whitaker, Case: 19STCV24850, Date: 2022-10-12 Tentative Ruling

Case Number: 19STCV24850    Hearing Date: October 12, 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 

Defendants State of California, acting by and through the Department of Corrections and Rehabilitation and Ginger Fierro (collectively, “Defendants”) move to exclude the opinions of Plaintiff Michael Wayne Minnifield’s (“Plaintiff”) retained expert witnesses, Dr. John Baker,  Kelly Nasser, Dr. Simon Lavi, and Dr. P. Benjamin Nikravesh as evidentiary sanctions because Plaintiff failed to timely produce all discoverable reports and writings of said expert witnesses.  Defendants also seek monetary sanctions in the amount of $11,848.45. 

Plaintiff opposes the motion and Defendants reply to the opposition. 

ANALYSIS 

Code of Civil Procedure section 2034.300 provides that, with certain exceptions, “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, emphasis added; see also Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 418.)

            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.”  (See also Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 951 (hereafter Boston) [“neither this provision nor any other requires that expert witnesses refrain from creating new or additional reports or writings after the specified date”].)  Further, Code of Civil Procedure section 2033.210, subdivision (c), states in pertinent part:  “Any party may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert described in subdivision (b) in the course of preparing that expert's opinion.” 

The Supreme Court has noted that the need for pretrial discovery is greater with respect to expert witnesses than ordinary fact witnesses because the opponent must prepare to cope with the expert's specialized knowledge.[1]  The Legislature responded to this need by enacting detailed procedures for discovery pertaining to expert witnesses. Upon the demand of any party, all parties must exchange written information about their expert trial witnesses. The information must include a sworn declaration containing, among other things, a brief narrative statement of the general substance of the testimony the expert is expected to give.  A party may also demand production of any discoverable reports and writings made by expert witnesses in the course of preparing their opinions. This allows the parties to assess whether to take the expert's deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area.

(Boston, supra, 170 Cal.App.4th at p. 951 [cleaned up].)  Notwithstanding, “[w]e cannot, as Penny Lane implicitly invites us to do, declare a rule that expert reports and writings must be created by the specified exchange date or not at all. As explained, the Legislature appears to have anticipated that experts would continue their preparations after the specified date.”  (Id. at p. 952.)  On the other hand, “[o]n the motion of a party, a trial court may issue a protective order requiring that all expert reports and writings be created and produced by a specified exchange date.”  (Ibid.)  Further, the court of appeal held that “[s]ection 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.  If the trial court concludes that a party intentionally manipulated the discovery process to ensure that expert reports and writings were not created until after the specified date, it may find the failure to produce the reports and writings was unreasonable and exclude the expert's opinions. Accordingly, a party who fails to instruct its expert to create all reports and writings before the specified date does so at its own risk.”  (Ibid., emphasis in original & citation omitted.)

a. Dr. John Baker[2]

Defendants argue that at the July 14, 2022 deposition, Dr. Baker testified that he would be preparing an expert report regarding the site inspection with approximately 150 photos and five videos that would be finalized after the deposition. (Motion p. 9, citing Baker Transcript: 20:6-25; 40:2-25; 41:1-22; 50:25-51:1-25; 52:1-6.)[3] As such, Dr. Baker indicated that he would be available for another deposition after Defense counsel had an opportunity to review the expert reports, videos and photos taken on July 12, 2022.[4] However, the evening prior to the continued July 29 deposition date, Plaintiff’s counsel unilaterally refused to produce Dr. Baker.

In Opposition, Plaintiff cites to the deposition transcription wherein Dr. Baker states that “I haven’t been asked to do [prepare a supplemental inspection report], but it might be a good idea. We’ll find out.” (Opposition, p. 17.)  But, according to Plaintiff, Plaintiff’s counsel has not requested that Dr. Baker prepare a supplemental report.[5] As for cancelling the second deposition, Plaintiff argues that Defendants failed to timely pay the expert’s deposition fees.

The court determines that Plaintiff’s opposition concedes that it unilaterally and improperly cancelled the second deposition. To the extent that Plaintiff argues it had the right to do so for Defendants’ failure to pay for the deposition fee, Defense counsel explains that Plaintiff’s counsel still refused “after fees were requested and paid.” (Motion p. 25, italics added.)

Accordingly, although Plaintiff offered a second deposition of Dr. Baker limited to the July 12, 2022 site inspection photos and videos, but then refused to produce Dr. Baker, the court finds Defendants’ arguments meritorious.  

Notwithstanding, the court will deny imposing evidentiary sanctions against Plaintiff regarding Dr. Baker, but will order Plaintiff to produce “all discoverable reports and writings” and make Dr. Baker available for another deposition (if warranted).  Further, Plaintiff’s refusal to produce Dr. Baker for a further deposition was without justification, warranting the imposition of monetary sanctions.  (See Code Civ. Proc., § 2023.010, subd. (e).) 

ii. Dr. Simon Lavi[6]

            Defendants argue that Plaintiff failed to timely produce Dr. Lavi’s expert files and then failed to provide a complete production of records. More specifically, Dr. Lavi testified that he reviewed “well over a hundred pages” of records, but Plaintiff’s production of documents contained only “41 pages and no x-rays or images purportedly reviewed or relied upon by the expert . . . [and] no treatment records or bills were produced regarding [Dr. Lavi’s July 6, 2022 patient] visit.” (Motion, p. 9.)

            In Opposition, Plaintiff argues that (i) the billing records were not in existence at the time of Dr. Lavi’s deposition (because the deposition took place on July 11 but the visit occurred on July 6) and (ii) Defendants have the documents (including from Dr. John Regan, County+USC, and imaging from Plaintiff’s providers).

            As Defendants’ reply does not comment on Plaintiff’s contentions that Defendants already have various documents in their possession, the court will decline levying evidentiary sanctions against Plaintiff regarding Dr. Lavi.  Notwithstanding, the court will order Plaintiff to produce “all discoverable reports and writings” and make Dr. Lavi available for another deposition (if warranted).

iii. Kelly Nasser[7]

 Defendants argue that Plaintiff’s counsel sent Nasser’s updated plan 31 minutes before the deposition. Additionally, Plaintiff also failed to produce the interview notes from a home visit that Ms. Nasser conducted on June 28, 2022.

Plaintiff concedes the production was untimely, but argues it was unintentional. (Opposition, p. 10.)   Indeed, a review of the deposition transcript reveals the purported oversight:

A. I – this is – the life care plan is on the 29th. That’s the latest life care plan.

Q. So it’s been updated since the one on the 28th?

A. Yes.

Q. And to update, it’s just the removal of Dr. Miller’s recommendations; correct? A. Correct.

Q. Okay. I haven’t seen that one yet. All I have is the 28th. So maybe, Dylan, can you send me over the 29th?

Dylan Dordick: I could have sworn you have that. That’s weird. … Mr. Dordick: I’ll send it to you right now. I’m almost 100 percent sure I sent that over already, but give me a minute. I’ll send it right now.

Mr. Adam: Okay. We can always come back to it.

(Opposition, p. 11, emphasis added).

Therefore, because Plaintiff’s actions amount to a technical violation and lack any sign of unreasonableness, the court will decline to impose evidentiary sanctions against Plaintiff as to Kelly Nasser.  Notwithstanding, the court will order Plaintiff to produce “all discoverable reports and writings” and make Kelly Nasser available for another deposition (if warranted) forthwith.

iv. Dr. P. Benjamin Nikravesh[8]

Defendants seek to exclude Dr. Nikravesh’s testimony based on alleged failures to produce (1) correspondence between him and Plaintiff’s co-counsel’s office; (2) a corrected version of a report erroneously dated July 7, 2021 (instead of July 7, 2022); and (3) X-ray images of Plaintiff’s left foot taken by Dr. Nikravesh.

The court agrees with Plaintiff that Defendants’ insistence that there must be communications between Dr. Nikravesh and Plaintiff’s co-counsel is unfounded. Second, as for the corrected version of a report, Plaintiff explains that was a mere typo correcting July 7, 2021 to July 7, 2022. As for the x-ray, Plaintiff states that all x-ray reports describing the x-ray images were produced.

Therefore, as the Reply does not provide counter arguments to Plaintiff’s arguments (notably that Defendants have the documents in their possession), the court will decline to issue evidentiary sanctions concerning Dr. Nikravesh. Notwithstanding, the court will order Plaintiff to produce “all discoverable reports and writings” and make Dr. Baker available for another deposition (if warranted).

CONCLUSION AND ORDER 

In short, the court finds the Plaintiff’s failure to timely produce “all discoverable reports and writings” made by, or in the possession of, his retained experts was not unreasonable and not done so with an intent to manipulate the discovery process to ensure that expert reports and writings were not created or produced until after a specified date. Accordingly, the court denies Defendants’ motion for evidentiary sanctions without prejudice. 

Nonetheless, to ensure fair notice of what Plaintiff’s expert witnesses will testify at trial, the court orders counsel for Plaintiff and Defendants to meet and confer regarding the production of  “all discoverable reports and writings” made by, or in the possession of, his retained experts, Dr. Baker, Dr. Lavi, Dr. Nikravesh and Kelly Nasser, not previously produced to Defendants, forthwith. 

The Court further orders Plaintiff to produce “all discoverable reports and writings” made by, or in the possession of, his retained experts, Dr. Baker, Dr. Lavi, Dr. Nikravesh and Kelly Nasser, not previously produced to Defendants, immediately.  In addition, the court orders Plaintiff to make his expert witnesses, Dr. Baker, Dr. Lavi, Dr. Nikravesh and Kelly Nasser, available for further depositions based upon any further production of “discoverable reports and writings” of said expert witnesses. 

Lastly, the Court grants in part Defendants’ request for monetary sanctions and orders Plaintiff to pay monetary sanctions in the amount of $848.45 (deposition no-show fees related to the second deposition of Dr. Baker) to Defendants, through counsel for Defendants, within 10 days of notice of the court’s orders.    

Defendants shall provide notice of the court’s orders and file a proof of service regarding the same.