Judge: Olivia Rosales, Case: BC680294, Date: 2022-12-21 Tentative Ruling

Case Number: BC680294    Hearing Date: December 21, 2022    Dept: SEC

MYERS v. COUNTY OF LOS ANGELES 

CASE NO.:  BC680294

HEARING:  12/21/22

#4

TENTATIVE ORDER

Plaintiffs’ motion to strike portions of Defendant WALSH SHEA CORRIDOR CONSTRUCTORS and ANYTIME DUMPING, INC.’s supplemental expert witness lists is DENIED in part, GRANTED in part, and DENIED without prejudice in part. CCP §2034.280.

Opposing Party to give Notice.  

CCP §2034.210 requires a simultaneous exchange of expert witness information. However, “[a]ny 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.” (CCP §2034.280.)

A supplemental designation may include experts who will express an opinion on a subject to be covered by the opposing side’s experts— it is not the expert’s specialty that is relevant, but the subject matter on which he will offer an opinion. (CCP §2034.280(a).).

Thus, the issue here is whether Defendants knew or should have reasonably anticipated at the time of the initial expert disclosure the need to offer expert testimony from toxicologist and helmet expert. As argued in Opposition, the deposition of Dr. Ukpo (which occurred after Plaintiffs’ first expert designation) revealed for the first time that Plaintiffs’ may be contending that Decedent was not actually intoxicated at the time of the Subject Incident and that Decedent’s helmet at the time of the Subject Incident did not contribute to the Decedent’s death.  At the time of the parties’ first expert designation, Plaintiffs had not yet investigated the cause of Decedent’s death.

Based on the present record, the Court is unable to conclude as a matter of law that (1) Defendants knew or should reasonably anticipated the need for testimony from a toxicologist and helmet expert at the time of their initial designation; or (2) that it was impermissible for Defendants to rely on the supplemental disclosure procedures set forth in §2034.280 to designate Dr. Gustin and Dr. Miller as retained experts. The Motion Is DENIED as to the request to strike Dr. Gustin and Dr. Miller as retained experts.

The Motion to strike non-retained experts Celaya and Stoker is GRANTED. In their supplemental expert list, Defendants attempt to list two non-retained experts in their designation—Ernest Celaya and Matthew Stoker. These non-retained experts were percipient witnesses to the Subject Incident’s aftermath. The supplemental designation of Mr. Celaya and Mr. Stoker is procedurally improper. CCP §2034.280 does not authorize the supplemental designation of non-retained experts. Defendants are not foreclosed from calling Mr. Celaya and Mr. Stoker as percipient witnesses at trial.

The request to strike the supplemental designation of Catherine Kowalewski, JD CPA made for the first time in Reply is DENIED without prejudice. Plaintiffs did not seek to strike the supplemental designation of Ms. Kowalewski in the Moving Papers, and Defendants did not have the opportunity to address this issue in Opposition. “[P]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive respondent of an opportunity to counter the argument. [Citations.]” (Jay v. Mahaffey (2013) 128 Cal.App.4th 1522, 1538.) Plaintiffs are not foreclosed from reasserting this argument before the trial court.