Judge: Michael E. Whitaker, Case: 21STCV26138, Date: 2023-03-06 Tentative Ruling

Case Number: 21STCV26138    Hearing Date: March 6, 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

            Defendant Bjorn David Lund (Defendant) moves to strike the supplemental expert designation served by Plaintiff Francesco Ferrario (Plaintiff), thereby excluding Plaintiff’s designated experts in the fields of life care planning and economics, Janice Roughan, and Darryl Zengler, from testifying at trial.  Plaintiff opposes the motion.  Defendant 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 November 11, 2022.  (See Declaration of Phillip S. Hwang, ¶¶ 4-5, Exhibits C and D.)  In his initial expert witness designation, Plaintiff designated retained experts Keith Wexler, M.D., a radiologist, James J. Reid, M.D., an orthopedic surgeon, and Jon Landerville, a biomechanical engineer.  (Declaration of Phillip S. Hwang, ¶ 4, Exhibit C.)  Defendant designated retained experts, Ronald S. Kvitne, M.D., an orthopedic surgeon, and Brad Rutledge, MS PE, a biomechanical engineer.  (Declaration of Phillip S. Hwang, ¶ 5, Exhibit D.)   On December 13, 2022, Plaintiff served his Supplemental Designation naming two additional experts in the fields of life care planning and economics.  (Declaration of Phillip S. Hwang, ¶ 6, Exhibit E.)  Defendant served a Supplemental Expert Designation naming Dr. Broumandi, a radiologist, in order to rebut the testimony of Plaintiff’s designated radiologist.  (Declaration of Phillip S. Hwang, ¶ 7, Exhibit F.).

Defendant argues that Plaintiff’s supplemental expert designations do not comply with Code of Civil Procedure section 2034.280 because his supplemental expert designations added two more fields of expertise, life care planning and economics, which would not act to rebut any testimony of Defendant’s initial expert designations.  Defendant attests the additional experts should have been named in the initial expert disclosure because Plaintiff knew of these areas of expertise at the time of initial disclosures and should have known he would need these experts.  Defendant specifies that Plaintiff has known for years that he is making a loss of earnings claim in this matter.  As such, an economist should have been contemplated in the initial disclosure.  In addition, the injuries have been known for years and if Plaintiff believed a life care planner was necessary, then the life care planner should have also been included initially.

In opposition, Plaintiff contends that Defendant’s motion is moot.  Plaintiff explains that whether Plaintiff’s supplemental expert designations complies with section 2034.280 is unripe as Plaintiff’s statutory deadline for supplemental expert disclosures has not lapsed.  Plaintiff notes that on December 20, 2022, the Court granted Plaintiff’s Ex Parte Application for an order to continue trial.  (See December 22, 2022 Minute Order.)  In its order the Court continued the trial to April 12, 2023 and stated that “[a]ll discovery and motion cutoff dates, as well as all other dates, are to comport with the new trial date.”  (Ibid.) 

Thereafter, Plaintiff served a demand for expert disclosure pursuant to Section 2034.230 on January 31, 2023.  Pursuant to Section 2034.230, and based upon the Court’s Order, Plaintiff had until February 21, 2023, to disclose any expert(s) that he expects to call at trial to express an expert opinion.  Plaintiff timely served his expert disclosures on February 17, 2023, prior to the lapse of the statutory deadline pursuant to Section 2034.230.  Thus, Plaintiff timely served his initial expert disclosures.  Section 2034.280, in pertinent part, provides that the supplemental exchange of information relating to the parties’ expert witnesses shall take place within 20 days after the expert exchange described in Section 2034.260.  Thus, Plaintiff has until March 13, 2023, to disclose any supplemental expert(s) that he expects to call at trial to express an expert opinion.  Accordingly, as of the date of filing his Opposition, Plaintiff’s statutory deadline for supplemental expert disclosures had not yet lapsed.  Plaintiff thus concludes that Defendant’s motion to strike supplemental expert designations is not ripe.

In reply, Defendant argues that Plaintiff’s February 17, 2023 expert disclosures qualify as supplemental expert designations based on the fact that an initial exchange of expert designations has already occurred.  The Court disagrees.  Based on the Court’s order of December 22, 2023, all discovery and motion cutoff dates were continued to comport with the new trial date of April 12, 2023.  As such, the initial expert designation cutoff was continued to February 21, 2023.  Because Plaintiff refiled his initial expert disclosures with additional expert designations before the new February 21, 2023 cutoff date, they qualify as timely initial expert disclosures.  Because Plaintiff’s supplemental designations are not due until March 13, 2023, the Court agrees with Plaintiff and finds Defendant’s motion to strike Plaintiff’s supplemental expert designations to be unripe. 

CONCLUSION AND ORDER

Accordingly, the Court denies Defendant’s motion to strike Defendant’s supplemental expert designations as unripe.

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