Judge Ronald F. Frank, Case Number: 23TRCV00346, Date: 2024-11-27 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00346, Date: 2024-11-27 Tentative Ruling

Case Number: 23TRCV00346 Hearing Date: November 27, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: November 27, 2024

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CASE NUMBER: 23TRCV00346

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CASE NAME: Cecilia Tapia De Ulloa, et al. v. Michael K. Newman, M.D., et al.

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MOVING PARTY: Defendants, Michael K. Newman, M.D. and Association of South Bay Plastic Surgeons Medical Group (incorrectly named and served as South Bay Plastic Surgeons, Inc.

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RESPONDING PARTY: Plaintiff, Cecilia Tapia De Ulloa

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TRIAL DATE: April 28, 2025

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MOTION:¿ Defendants’ Continued Motion for Summary Judgment and Defense Request to take a Limited St. Mary’s Deposition of Plaintiff Expert Schusterman

Tentative Rulings: (1) GRANT Defendants’ request for a St. Mary’s deposition of Dr. Schusterman. The hearing on the MSJ will be continued into early 2025.

I. BACKGROUND¿¿

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A. Factual¿¿

On February 7, 2023, Plaintiffs, Cecilia Tapia De Ulloa and Edwin J. Ulloa, as individuals and as successors in interest to Natalia C. Ulloa filed a Complaint against Defendants, Michael K. Newman, M.D., South Bay Plastic Surgeons, Inc., Jason K. Ho, M.D., Michael Mercado, M.D., Providence Medical Institute Manhattan Beach Urgent Care, and DOES 1 through 100. The Complaint alleges a cause of action for Medical Malpractice/Wrongful Death and Survival Action.

Defendants, Michael K. Newman, M.D. and Association of South Bay Plastic Surgeons Medical Group (incorrectly named and served as South Bay Plastic Surgeons, Inc. (“Moving Defendants”) now files a Motion for Summary Judgment.

B. Procedural¿¿

On April 11, 2024, Moving Defendants filed a Motion for Summary Judgment. On July 24, 2024, Plaintiffs filed an opposition brief. On July 25, 2024, Moving Defendants filed a reply brief.

This motion was originally heard on August 1, 2024, where this court continued the hearing to allow Plaintiff to submit an amended declaration of Dr. Mark Schusterman and any further evidence by August 30, 2024. Defendant was allowed to submit any objections to the amended declaration or any other declaration by September 16, 2024.

On October 2, 2024, at the continued hearing, this court continued the hearing yet again to allow the parties to brief the issues concerning Defendant’s request to take a St. Mary’s Medical Center v. Superior Court deposition of Plaintiff’s expert prior to the court ruling on the motion for summary judgment. This court ordered Plaintiff to file a supplemental brief on or before November 6, 2024 and for Defense counsel to file a sur-reply on or before November 18, 2024. On November 6, 2024, Plaintiff filed an opposition brief, and on November 19, 2024, Defendants filed a sur-reply brief. The Court indicated orally that it was inclined to permit the defense the same right to the defendants to take a St. Mary’s deposition of the expert who filed a declaration opposing the MSJ, just as it had given Plaintiff the right to take a St. Mary’s deposition of the defense expert who had submitted a declaration in support of the MSJ.

II. ANALYSIS¿

In St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531 (“St. Mary”), the court of appeal concluded that “where a party presents evidence that raises a significant question relating to the foundation of an expert’s opinion filed in support of or in opposition to a motion for summary judgment or summary adjudication, a deposition limited to that subject should be allowed.” (Id. at p. 1534.) The physician defendants in St. Mary filed a motion for summary judgment in which an expert declared that the physicians were not negligent in the care and treatment of the plaintiff patient while performing a procedure. (Id. at p. 1534.) In opposition, the plaintiff filed a declaration by his expert, who declared that two of the physicians were negligent. (Ibid.) The defendant physicians then filed a motion to compel the deposition of the plaintiff’s expert while the plaintiff opposed the motion on the grounds that expert designations had not yet been exchanged pursuant to Code of Civil Procedure section 2034 et seq. (Id. at pp. 1535-1536.)

The court of appeals found that limited discovery to address basis for the expert opinion was justified because there was evidence that one of the physicians was not even present at the medical procedure at issue. The court noted that although a reply declaration could address the mistake, the trial court would then be required to conclude that a triable issue of fact existed. (Id. at p. 1538.) The court continued, “[I]t would defeat the purpose of a summary procedure if the opposition party were allowed to defeat the motion by less than candid declarations or affidavits in opposition. (Ibid.)

As set forth in St. Mary, “whether to grant discovery in a given case falls within the sound discretion of the trial court based upon all of the facts presented. There must be objective facts presented which create a significant question regarding the validity of the affidavit or declaration which, if successfully pursued, will impeach the foundational basis of the affidavit or declaration in question.” (50 Cal.App.4th at pp. 1540-1541.)

In Defendants’ sur-reply brief, they observe that initially, there was a question as to the basis of Dr. Schusterman’s declaration because he did not review authenticated evidence as a basis for his opinions in this matter. This problem was cured following this Court’s tentative ruling for the October 2, 2024 hearing. However, Defendants assert that the substance of Dr. Schusterman’s declaration raises questions as to the nature and extent of his review of records. Specifically, Defendants assert the Supplemental Declaration of Dr. Schusterman merely states which records he reviewed. Defendants point out that there is not a statement of his opinions following his review of the now more properly authenticated evidence.

Defendants also argue the declaration is substantively suspect. For example, Defendants state the declaration is devoid of any consideration that fat embolism syndrome (assuming it existed) could have been caused by the liposuction that preceded the subject fat transfer. Defendants assert the foundational aspects of the said opinion are not stated in Dr. Schusterman’s declaration and need to be explored. (citing paragraph 11 of the “original” Declaration of Dr. Schusterman). Lastly, Defendants argue the substance of Dr. Schusterman’s declaration pertaining to informed consent criticisms are tenuous because Dr. Schusterman only references the consent regarding BLL and not liposuction in general, which is covered in depth in the written consent and in Dr. Newman’s deposition, which Dr. Schusterman purportedly reviewed. Thus, Defendants contend this raises foundational issues as they relate to informed consent opinions stated in paragraph 11 of the “original” opinions.

In Plaintiffs’ supplemental opposition brief, Plaintiffs contend this is about whether plaintiff’s expert is “lying,” as opposed to an examination of the foundation for Dr. Schusterman’s opinions. Plaintiffs argue Defendants are attempting to secure Dr. Schusterman’s deposition early in violation of the established expert designation statutes pursuant to Code of Civil Procedure section 2034.210, et seq. The Court disagrees with Plaintiffs’ characterization. In the Court’s view, the defense is seeking sworn testimony as to whether Dr. Schusterman’s opinions are subject to objections based on lack of foundation, or whether he has adequate foundation regardless of the lack of specificity on foundation in the declaration submitted in opposition tot eh MSJ. This is, in the Court’s opinion, a legitimate basis for a limited St. Mary’s deposition. If the defense is satisfied as to the sufficiency of the foundation for Dr. Schusterman’s opinion, they may well withdraw their motion for summary judgment or proceed to argue it on the merits.

The Court elects to exercise its discretion and permit the defense to take a limited St. Mary’s deposition of Dr. Schusterman, limited to the foundation for the opinions he gave in his initial declaration filed in opposition to the pending MSJ and foundations for his opinions as to the scope of the informed consents in this case. Such a limited deposition would not be a premature full expert deposition, but rather would be restricted by and for reasons stated in the St. Mary’s decision. The Court reminds both parties that its substantive tentative ruling was to deny the MSJ, on the assumption that there was an adequate foundation for the opinions of the Plaintiff’s expert. The Court desires to reach the point where it can definitively rule on the defense MSJ one way or the other. It is in plaintiff’s interest to demonstrate that Dr. Schusterman can lay an adequate foundation for his opinion used to oppose the MSJ given the Court’s earlier tentative ruling on that motion. The Court’s tentative ruling is thus to GRANT Defendants’ request for a St. Mary’s deposition of Dr. Schusterman and to postpone the hearing to an agreeable date probably in February of 2025.

IV. CONCLUSION

For the foregoing reasons, this Court tentatively GRANTS Moving Defendants’ motion to take the limited deposition of Dr. Schusterman restricted under St. Mary’s to the foundation for the opinions given in opposition to the pending MSJ. The hearing on the MSJ will be continued into early 2025.