SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

 

I. Background 

On March 29, 2022, Plaintiff Sondra Williams (“Plaintiff”) filed this action against defendant CVS Pharmacy, Inc. (“CVS”) for injuries Plaintiff sustained when a plexiglass separator, set upon the pharmacy counter to separate employees and customers, fell upon Plaintiff. On May 4, 2022, Plaintiff filed an amendment to complaint naming Garfield Beach CVS, L.L.C. as Doe 1. 

On October 16, 2023, CVS filed the instant motion to continue the trial date and all related pretrial deadlines by 90 days.  

On October 19, 2023, the Court granted in part CVS’ ex parte application to continue trial and reopen discovery. (Min. Order, Oct. 19, 2023.) The Court continued the trial date by from November 1, 2023 to January 30, 2024, on the grounds of family illness of defense counsel, but denied without prejudice to reopen discovery deadlines on an ex parte application.  

Therefore, the motion to continue trial is moot, and the only remaining issue in the noticed motion is the request to reopen discovery. CVS provides it requests discovery be reopened only for the limited purpose of allowing CVS to conduct an IME of Plaintiff and to allow the parties to complete expert discovery.  

Plaintiff opposes the motion. No reply was filed.  

 

II. Legal Standard – Reopen Discovery 

CCP § 2024.050 states: 

(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. 

 

Here, CVS argues Plaintiff produced, for the first time, medical records spanning from October 2022 through March 2, 2023 at mediation on September 8, 2023. CVS contends at no time prior to mediation did Plaintiff disclose these records, nor was CVS aware that Plaintiff would allege she would require implantation of a spinal cord stimulator (SCS), and possibly a permanent one thereafter. Prior to mediation, Plaintiff served CVS on December 6, 2022 supplemental document production, which included medical billing records through August 2022. At Plaintiff’s deposition on March 31, 2023, Plaintiff produced no documents, and Plaintiff’s counsel represented that all responsive documents had already been produced with an exception of a “couple of doctor’s notes from recent visits.” CVS contends the recommendation for a SCS implant by Larence Miller, M.D. (“Miller”) would have a significant impact on Plaintiff’s damages, and unfairly prejudicial to CVS if CVS is not given the opportunity to conduct discovery regarding the issue. CVS seeks an independent medical examination (“IME”) of Plaintiff by a pain management physician with experiencing concerning SCS implants. CVS argues that at Plaintiff’s deposition, Plaintiff testified she saw Dr. Miller, and that he said they would try another nerve block and that Plaintiff would like to try a nerve stimulator. However, Plaintiff also testified she did not have any future plans or appointments for the procedure.  

Plaintiff, in opposition, contends Defendant was aware Plaintiff required pain management care as of July 25, 2022, and that Plaintiff was recommended spine stimulator trial by Dr. Miller as early as March 31, 2023. Plaintiff contends she testified at her deposition that Dr. Miller recommended a trial of a nerve stimulator a couple weeks before her deposition. Further, Plaintiff argues that CVS noticed Plaintiff’s medical examination to take place on August 23, 2023 with Dr. Ronald Kvitne. However, defense counsel cancelled the examination to save the expense in anticipation of mediation. Plaintiff argues reopening discovery is improper because Defendants have not serve any supplemental discovery, subpoenaed Plaintiff’s updated medical records, subpoenaed the depositions of Plaintiff’s treating providers, or re-noticed Plaintiff’s physical examination to date. Plaintiff agues CVS has not been diligent in demonstrating exceptional circumstances to allow it to designate new/additional experts after the cut-off date.  

The initial trial date was September 26, 2023, and therefore discovery cut-off is August 27, 2023. The parties previously stipulated to continue trial, but with discovery cut-off to remain based on the September 26, 2023 trial date with the exception of Plaintiff’s inspection of CVS’ plexiglass separator and Defendant’s IME of Plaintiff. (Stip. & Order, Aug. 25, 2023.) Plaintiff providing in her discovery responses that she is receiving pain management care, generally, would not necessarily appraise CVS that Plaintiff intends to or will undergo an SCS implant, whether it be a trial only or permanent implantation. As Plaintiff provides in her opposition, Plaintiff testified on March 31, 2023 that she, at that time, did not have any future plans or appointments to receive a nerve stimulator. Plaintiff’s counsel also represented that there was “a recent visit or two with a Dr. Lawrence Miller. We’re waiting for those notes…Aside from that, I think all other responsive documents in our possession – in our possession have been produced.” (Opp. Heimanson Decl., Exh. 4.) Even if CVS did not subpoena Dr. Miller’s records at the time, this is also balanced by the fact that Plaintiff’s counsel represented that all responsive documents had been produced aside from the one or two recent visits. Further, Plaintiff’s action, filed on March 29, 2022, is not yet old.  

Based on the foregoing, the motion to reopen discovery is GRANTED for the limited purpose of allowing CVS to conduct an IME of Plaintiff with a pain management specialist. Further, expert discovery is re-opened only in relation to the pain management expert to be conducting Plaintiff’s IME. 

 

Moving party is ordered to give notice. 

 

 

Dated this 7th day of November 2023