Judge Michelle C. Kim, Case 20STCV10453 2023-05-08 Tentative Ruling

Plaintiff Derrick Anderson filed this action against Defendant Christopher Akl Lau for damages arising from a motor vehicle accident. Trial in this action is currently set for August 4, 2023.

At this time, Plaintiff moves to augment his expert witness list and to reopen fact and expert discovery. Defendant opposes the motion. Any reply to the motion was due on or before May 1, 2023. As of May 3, 2023, no reply has been received.

Plaintiff provides that his current counsel substituted into the action on December 16, 2022, and upon review of Plaintiff’s file determined that Plaintiff’s prior counsel did not retain multiple key expert witnesses to properly present the full measure of Plaintiff’s damages at trial. Plaintiff provides that as a result, on January 4, 2023, Plaintiff’s new counsel promptly served a new expert witness list to apprise Defendant of the six new retained experts that Plaintiff’s current counsel deemed necessary to properly present Plaintiff’s case at trial. Plaintiff provides his prior served Plaintiff’s expert designation on October 24, 2022, and identified three retained experts. However, Plaintiff asserts that his prior counsel failed to designate the following experts that Plaintiff now seeks to augment “(1) an orthopedist and spinal surgery specialist who performed the anterior cervical discectomy and fusion surgery at C5-7 on Plaintiff (Dr. Babak Barcohana); (2) a bariatric surgeon who treated Plaintiff’s hernia condition and performed a ventral hernia repair surgery on Plaintiff (Dr. Samuel Kashani); (3) a urologist (Dr. Robert Sandord); (4) a radiologist (Dr. Murray Solomon); (5) a life care planner (Jenn Craigmyle); and (6) an economist (Tamorah Hunt or Timothy Lanning).” (Mot. Chang Decl. ¶ 15.)

Plaintiff argues that there is no showing that Defendant has relied on Plaintiff’s original expert designation, and that Defendant will not be prejudiced by the augmentation. Further, Plaintiff argues that he could not in the exercise of reasonable diligence have determined to call the experts he seeks to add because his current counsel was not yet representing him. Plaintiff contends that his prior counsel’s failure to designate the experts constitutes mistake because prior counsel did not recognize the importance of retaining the key experts.

On March 23, 2023, Plaintiff filed a Notice of Errata providing that current counsel was unaware prior counsel served a Supplemental Designation of Expert Witnesses on Defendant on November 11, 2022, which identified Dr. Babak Barcohana as a supplemental retained expert witness.

In opposition, Defendant asserts that Plaintiff does not offer any valid excuse for failing to previously name the six experts Plaintiff now seeks to augment. Defendant argues that Plaintiff’s new counsel wants to work up the case with a different strategy than prior counsel, but Defendant contends that a change in trial tactics is not an excusable mistake that justifies allowing Plaintiff to name six new experts and amend the substance of the expert witness declaration. If the motion is granted, Defendant requests that it be granted on certain conditions, including that Defendant be allowed to augment his expert list and take additional medical exams at Plaintiff’s expense.

(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following:

(1) Augment that party's expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.

(2) Amend that party's expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.

(b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.

(1) The 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 expert witness.

(2) The 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:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.

(B) 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.

(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

Notably, granting or denial of relief in these cases lies within the court's sound discretion, and is subject to appellate review only for abuse of discretion. (Bonds v. Roy (1999) 20 Cal.4th 140, 149.)

In this case, discovery, including expert discovery, is now closed. On January 13, 2023, the parties’ ex parte application to continue the trial date was granted, and the then trial date of January 27, 2023, was continued to August 4, 2023. However, the Court expressly noted that no deadlines were to move with the trial date. (Min. Order, Jan. 13, 2023.) Consequently, Plaintiff failed to file this motion in advance of the discovery cutoff dates as required by CCP § 2034.610(b). Plaintiff, however, argues that exceptional circumstances warrant augmentation, but the only purported exceptional circumstances identified by Plaintiff is his obtaining new counsel. Plaintiff fails to cite any authority holding that the retention of new counsel constitutes exceptional circumstances. Further, Plaintiff does not articulate any reason why having new counsel substitute into this action qualifies as an exceptional circumstance, especially where Plaintiff was represented by counsel up until the filing of Plaintiff’s Substitution of Attorney form on December 16, 2022.

Furthermore, Plaintiff contends that his current counsel could not have determined to call the six experts he seeks to augment because his counsel had not yet substituted into the action. However, Plaintiff provides no explanation as to why his prior counsel could not have determined to call the six experts. Plaintiff, thus, fails to show that he could not have in the exercise of reasonable diligence determined to call the expert witnesses.

Alternatively, Plaintiff asserts that his failure to designate the six proposed experts is based on his prior counsel’s mistake because his prior counsel did not recognize the importance of retaining the key experts. As Defendant argues, Plaintiff does not articulate why failing to designate the six proposed experts was mistake on the part of his prior counsel. Rather, Plaintiff provides that in his current counsel’s view, the six experts are imperative to support Plaintiff’s claimed damages. Consequently, Plaintiff’s request to augment his expert witness list to add six experts is based on the evaluation of the case and strategic position on how to prepare the case for trial by Plaintiff’s current counsel. Plaintiff does not establish that this constitutes mistake in failing to determine to call the expert witnesses earlier. Plaintiff’s evidence shows his prior counsel designated three expert witnesses and 40 non-retained experts. There is no showing that Plaintiff’s prior counsel made any mistake in designating Plaintiff’s experts, or not designating the subject six experts as expert witnesses. Plaintiff, thus, fails to show that he is entitled to relief under CCP § 2034.620(c).

Based on the foregoing, Plaintiff’s request to augment his expert witness list is denied.

(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:

(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.

Here, Plaintiff seeks to reopen expert and fact discovery “given the need to augment Plaintiff’s retained experts.” (Mot. at p. 12:7-8.) However, for the reasons stated above, Plaintiff’s request to augment his expert witness list is being denied. Therefore, the request to reopen expert discovery is denied.

In addition, Plaintiff requests that fact discovery be reopened “because Plaintiff’s predecessor counsel did not seek loss of earnings/loss of earnings capacity during their representation of Plaintiff. As a result, Plaintiff seeks permission to supplement/amend his responses to properly pursue these economic damages.” (Mot. at p. 13:9-12.) However, this action is now more than three years old, and Plaintiff is seemingly seeming to supplement and amend his own discovery responses less than three months before the current trial date. Plaintiff’s counsel substituted into the action on or about December 16, 2022, but did not file this motion to reopen discovery until March 14, 2023, almost four months later. Plaintiff does not show that he was diligent in seeking to amend his discovery responses.

Hon. Michelle C. Kim

Judge of the Superior Court