Judge: Michael E. Whitaker, Case: 21STCV16735, Date: 2023-01-12 Tentative Ruling

Case Number: 21STCV16735    Hearing Date: January 12, 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

 

DEPARTMENT

32

HEARING DATE

January 12, 2023

CASE NUMBER

21STCV16735

MOTION

Motion to Reopen Discovery or in the alternative Amend and Augment Expert Designation

MOVING PARTY

Plaintiff Kathi McWhorter

OPPOSING PARTIES

Defendants Adam Blackman and Stacy Sukov Blackman

 

MOTION

 

Plaintiff Kathi McWhorter (Plaintiff) sued Defendants Adam Blackman and Stacy Sukov Blackman (collectively, Defendants) based on a motor vehicle collision.  Plaintiff moves to reopen expert discovery to permit Plaintiff to amend the Designation of Expert Witnesses to include three new expert witnesses and allow for their depositions, or in the alternative, an order allowing counsel to amend the expert witness list.  Defendants oppose the motion. 

 

Preliminarily, the Court notes that Plaintiff requests monetary sanctions within the memorandum of points and authorities.  However, Plaintiff failed to include her request for monetary sanctions in the notice of motion.  As such, the Court finds Plaintiff has not provided proper notice of the request for monetary sanctions and denies the request as procedurally defective. 

 

Further, the Court notes that on December 14, 2022, this Court denied Plaintiff’s request to augment the expert witness list for lack of standing per Code of Civil Procedure section 2034.610, subdivision (a).  Accordingly, the Court shall only consider Plaintiff’s request to reopen expert discovery.

 

ANALYSIS

 

On December 14, 2022, the Court set the trial on March 15, 2023 and ordered that all discovery remains closed; on November 9, 2022, the Court vacated the trial date and set a trial setting conference for December 15, 2022 (which was advanced to December 14, 2022).  (See November 9, 2022 & December 14, 2022 Minute Orders.) 

 

The initial trial date in the action was set for November 1, 2022.  (See Standing Order re Personal Injury Procedures, Central District issued on May 26, 2021.)  “The 30-day and 15-day “cut-offs” are measured from the first date set for trial of the case. A continuance or postponement of the trial does not operate to reopen discovery proceedings.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:450 (citing Code Civ. Proc., § 2024.020, subd. (b) & Pelton-Shepherd Indus., Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1575, fn. 10); see also December 14, 2022 Minute Order.) 

 

“The purposes of California's discovery statutes are well known. They are intended, among other things, 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.  We must construe the statutes time limitations in a way which is consistent with the overall purposes of discovery cited above.”  (Beverly Hosp. v. Superior Court (1993) 19 Cal.App.4th 1289, 1294–1295 [cleaned up].)  “The purpose of the expert witness discovery statutes is to give fair notice of what an expert will say at trial. 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. Indeed, 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. The Legislature responded to this need by enacting detailed procedures for discovery pertaining to expert witnesses.”  (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 416 [cleaned up].) 

 

Based upon the initial trial date, the deadline for the exchange of expert witness information was September 12, 2022.  (See Code Civ. Proc., § 2034.230, subd. (b).)   To that end, Defendants served on Plaintiff a Demand for Exchange of Expert Witnesses on August 19, 2022 which set forth the deadline as September 12, 2022.  (See Declaration of Mihir Desai, Exhibit A.)  Thereafter, Defendants served their Designation of Expert Witnesses on September 12, 2022.  As part of the designation, Defendants designated the following retained and non-retained expert witnesses:

 

  1. Hamid R. Djalilian, M.D.  (Retained)

  2. Hrair E. Darakjian, M.D.  (Retained)

  3. David Shamouelian, M.D.  (Non Retained)

  4. Troy I. Mounts, M.D. (Non Retained)

  5. Abbas Asker Anwar, M.D. (Non Retained)

  6. Jason Sher (Non Retained)

     

    Defendants did not designate a Life Care Planning or Vocational Economic experts as part of the September 12, 2022 designation.

     

    Plaintiff served her Designation of Expert Witnesses on September 20, 2022.  (See Declaration of Mihir Desai, Exhibit C.)  As part of the designation, Plaintiff designated the following retained and non-retained expert witnesses:

     

  1. David Shamouelian, M.D.  (Retained)

  2. Troy I. Mounts, M.D. (Retained)

  3. Abbas Asker Anwar (Non Retained)

  4. Jason Sher (Non Retained)

  1. Hamid R. Djalilian, M.D. (Non Retained)

  2. Hrair E. Arakjian, M.D. (Non Retained)

     

    Of Plaintiff’s retained experts, neither Dr. Mounts nor Dr. Shamouelian seem to be Life Care Planning Experts.  On November 5, 2022, Plaintiff served an Amended Designation of Expert Witnesses.  (See Declaration of Mihir Desai, Exhibit H.)  As part of the amended designation, Plaintiff designated the following retained and non-retained expert witnesses:

     

  1. Laura Lampton, RN (Retained) (Life Care Plan Specialist)

  2. David Shamouelian, M.D.  (Retained)

  3. Troy I. Mounts, M.D. (Non Retained)

  4. Abbas Asker Anwar (Non Retained)

  5. Jason Sher (Non Retained)

  6. Hamid R. Djalilian, M.D. (Non Retained)

  7. Hrair E. Arakjian, M.D. (Non Retained)

     

    As part of the amended designation, Plaintiff did not designate either April Stallings, RN or Paul Thomas, Ph.D.  On November 10, 2022, Plaintiff served a further Amended Designation of Expert Witnesses.  (See Declaration of Mihir Desai, Exhibit I.)  As part of the further amended designation, Plaintiff designated the following retained and non-retained expert witnesses:

     

  1. David Shamouelian, M.D.  (Retained)

  2. April Stallings, RN (Retained)

  3. Paul Thomas, Ph.D. (Retained)

  4. Troy I. Mounts, M.D. (Non Retained)

  5. Abbas Asker Anwar (Non Retained)

  6. Jason Sher (Non Retained)

  7. Hamid R. Djalilian, M.D. (Non Retained)

  8. Hrair E. Arakjian, M.D. (Non Retained)

     

    As part of the further amended designation, Plaintiff designated April Stallings and Paul Thomas, who is a Vocational Economic expert.    

     

    Here, Plaintiff seeks to reopen expert discovery in order to designate the following expert witnesses: (1) David Shamouelian, M.D.; (2) April Stallings, RN; and (3) Paul Thomas, Ph.D.  Plaintiff advances the declaration of Roger L. Wilkerson, Plaintiff’s counsel (Counsel). 

     

    (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.

     

    (Code Civ. Proc., § 2024.050. subds. (a)-(b).) 

     

    According to Counsel, “In September of 2022, Plaintiff’s counsel attempted to retain Life Care Planning Expert, Kelly Harvey. Ms. Harvey was scheduled to review Plaintiff’s medical records from an upcoming medical exam.  . . .  Unexpectedly on approximately November 1, 2022, Ms. Harvey advised counsel that she nor anyone affiliated with her company would be able to serve as an expert witness in our case due to her professional and personal relationship with Co-Defendant Stacy Blackman.”  (Declaration of Roger L. Wilkerson, ¶ 5, emphasis added.)  Counsel also states “Ms. Harvey was scheduled to review Plaintiff’s medical records from an upcoming medical exam. On October 28, 2022, Plaintiff attended a follow up examination with Dr. David Shamouelian, an otolaryngologist.”  (Declaration of Roger L. Wilkerson, ¶ 7.) 

     

    Next, Counsel states that “This unexpected conflict necessitated the need for Plaintiff’s counsel to seek a Life Care Planning Expert outside of the Los Angeles area. As soon as confirmation could be obtained, Plaintiff’s counsel retained Life Care Planning Expert, Laura Lampton, RN. On November 5, 2022, Plaintiff filed and served an Amended Designation of Expert Witnesses to Defendants’ counsel and Amended Joint Witness List.  . . .   Unexpectedly, on November 8, 2022, Ms. Lampton rescinded her availability stating Covid and Covid related complications to her schedule.”  (Declaration of Roger L. Wilkerson, ¶ 5.)  Plaintiff designated Ms. Lampton as part of her November 5, 2022 amended designation. 

     

    In addition, Counsel declares:  “As a replacement for the unexpectedly unavailable Ms. Lampton, Vocational Economics, Inc. provided Plaintiff with the services of Certified Nurse Life Care Planning Specialist, Ms. April Stallings, RN, BSN, CNLCP, CBIS and Vocational Expert Paul Thomas, both of Vocational Economics, Inc. Both Ms. Stallings & Mr. Thomas are available to Defendants for deposition.”  (Declaration of Roger L. Wilkerson, ¶ 5.) 

     

    With respect to Dr. Shamouelian, Counsel states that “On October 28, 2022, Plaintiff attended a follow-up examination with Dr. David Shamouelian, an otolaryngologist.”  (Declaration of Roger L. Wilkerson, ¶ 5.) 

     

    Notwithstanding, Counsel does not explain why Plaintiff failed to designate Ms. Harvey or any Life Care Planning Expert in her September 20, 2022 designation.  Moreover, Counsel does not adequately explain why Plaintiff’s initial designation of expert witnesses was served after the September 12, 2022 deadline.  As an explanation, Counsel states that on September 26, 2022 (after the deadline), “[c]ounsels met and conferred regarding the conflicts in the schedules of all retained and not yet retained Plaintiffs experts that delayed Plaintiff’s ability to designate said counsel (sic) until September 26, 2022.”  (Declaration of Roger L. Wilkerson, ¶ 4, emphasis added.)   Moreover, Counsel does not explain why Plaintiff failed to designate Mr. Thomas or any Vocational Economic Expert as part of her September 20, 2022 or November 5, 2022 designations. 

     

    What is evident from Counsel’s declaration is a lack of diligence to designate expert witnesses in a timely manner (8 days late), and in particular, a lack of diligence to designate a Life Care Planning and Vocational Economic experts whether timely or otherwise.  Although a lack of diligence may be excused, Counsel does not provide coherent reasons for Plaintiff failing to “complete” expert discovery.  And Counsel does not address in his declaration whether prejudice may befall Defendants should the Court grant the motion, and how such prejudice may be eliminated or mitigated. 

     

    On the other hand, Counsel attests that “On September 29, 2022, counsels met and conferred regarding retained experts and reached an agreement to allow discovery to continue and Plaintiff’s experts to testify.”  (Declaration of Roger L. Wilkerson, ¶ 4.)  Other than that statement, Counsel does not provide any other details of the agreement or any document that memorializes the agreement purportedly reached with Counsel for Defendants.  Interestingly, Counsel for Defendants does not address this issue in the declaration in opposition to the motion.  (See Declaration of Mihir Desai.) 

     

    In opposition, Defendants argue Plaintiff has not shown good cause to re-open discovery.  First Defendant attests that Plaintiff has misrepresented the fact that new information was discovered in the October 2022 medical report.  (Declaration of Mihir Desai, Exhibits O and P.). Further Defendants attest that Plaintiff misrepresents that she had attempted to retain expert witness Kelly Harvey in September of 2022.  Plaintiff rather attempted to retain Kelly Harvey on November 2, 2022, and Harvey notified Plaintiff within an hour that she had a conflict.  (Declaration of Kelly Harvey, ¶¶ 1-4.)  Plaintiff points out that Plaintiff knew her expert witness designation was late in September 2022 and did not diligently pursue relief.  Finally, Defendants attest that allowing the re-opening of expert discovery would further delay the trial date, since designating Plaintiff’s experts, allowing Defendant to respond to Plaintiff expert designations with their own designations, and deposing said experts will require more time than what is currently allowed for.

     

    CONCLUSION AND ORDER

     

    In considering the totality of the record before the Court, the Court finds that Plaintiff has not advanced sufficient proof to warrant the wholesale reopening of expert discovery. 

     

    With the trial date set on March 15, 2023, Plaintiff has conversely provided sufficient proof to warrant the limited reopening of expert discovery, and therefore, the Court grants in part Plaintiff’s motion to reopen expert discovery.  In doing so, the Court orders as follows:

     

  1. Plaintiff’s Designation of Expert Witnesses served on September 26, 2022 is the operative designation of Plaintiff.

  2. Defendants’ Designation of Expert Witnesses served on September 12, 2022 is the operative designation of Defendants.

  3. No party may augment the operative designations of expert witnesses.

  4. The parties shall meet and confer forthwith to schedule and complete all expert witness depositions (retained and non-retained experts) on or before February 22, 2023.

     

    Regarding Defendants’ request for monetary sanctions, the Court declines to impose monetary sanctions against Plaintiff and/or her counsel of record under the circumstances which would make the imposition of such sanctions unjust.  (See Code Civ. Proc., § 2024.050, subd. (c).) 

     

    The Clerk of the Court shall provide notice of the Court’s ruling.