Judge Sarah J. Heidel, Case Number: 22STCV05567, Date: 2024-03-22 Tentative Ruling

Judge: Sarah J. Heidel, Case: 22STCV05567, Date: 2024-03-22 Tentative Ruling

Case Number: 22STCV05567 Hearing Date: March 22, 2024 Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

CARMEN ONATE, by and through her Successor in interest, ELIANA JUSSEN; ELIANA JUSSEN, Individually; and MARIO MEZA, Individually, Plaintiff, vs. JAMES J. JABER, M.D., and DOES 1 through 100, Inclusive, Defendants. Case No.: 22STCV05567 Hearing Date: March 22, 2024 Time: 8:30 a.m. [TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO QUASH

MOVING PARTIES: Defendant James J. Jaber, M.D.

RESPONDING PARTY: Plaintiffs Carmen Onate, Eliana Jussen, and Mario Meza

Defendant’s Motion to Quash Deposition Subpoena, Request for a Protective Order, and Request for Sanctions

The court considered the moving papers, opposition, and reply papers filed in connection with this motion. Defendant’s Motion to Quash is GRANTED. As such the motion for a protective order is moot. The request for sanctions is DENIED.

BACKGROUND

This case stems from allegations of medical negligence. Carmen Onate by and through her daughter and successor in interest Eliana Jussen and son Mario Meza (collectively, Plaintiffs), filed a Complaint on February 14, 2022 against James J. Jaber, M.D. (Defendant). On

May 13, 2021, Carmen Onate (Decedent) underwent an exploration and resection of the primary parathyroid adenoma. (Complaint, ¶ 9.) Plaintiffs allege that Defendant failed to remove the parathyroid tissue, such that on July 15, 2021, Decedent underwent another surgery which resulted in Decedent’s death. (Complaint, ¶¶ 10-11.) Plaintiffs filed suit alleging medical negligence/wrongful death.

The instant motion is Defendant’s Motion to Quash, file for a Protective Order, and Request for Monetary Sanctions against Plaintiffs and their Counsel of Record (the Motion).

LEGAL STANDARD

Defendant brings this Motion under both CCP §§ 1985.3, 1985.6 and 1987.1. CCP § 1987.1 reads in pertinent part that:

“…the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1(a).)

DISCUSSION

Plaintiff noticed one deposition subpoena on August 16, 2023 that was directed at Defendant’s employer, Los Angeles Community Hospital (LACH) seeking deposition testimony of a person most qualified (PMQ) and production of documents by September 11, 2023 and September 13, 2023. With their moving papers, Defendant places nine of the subpoena’s requests at issue as follows:

Testimony

1. “The Person(s) Most Qualified to testify as to whether Dr. Jaber's privileges at LACH were ever suspended or restricted including, but not limited to the reasons he was suspended and/or restricted”

2. “The Person(s) Most Qualified to testify as to whether Dr. Jaber had any restrictions on his staff privileges as of July 6, 2021, including but not limited to what those restrictions were and how long they were imposed for”

3. “The Person(s) Most Qualified to testify as to how many patients have died at LACH while undergoing a surgical procedure by Dr. Jaber” and

4. “The Person(s) Most Qualified to testify as to how many patients - like Antonio Leon [sic] - suffered a brain injury during head and neck surgery performed by Dr. Jaber at LACH.”

Production of Documents

1. Request to Produce No. 2: “Any and all DOCUMENTS that refer or relate to whether Dr. Jaber’s privileges at LACH were ever suspended or restricted;”

2. Request to Produce No. 3: “Any and all DOCUMENTS that refer or relate to the reasons why Dr. Jaber’s privileges at LACH were suspended;”

3. Request to Produce No. 4: “Any and all DOCUMENTS that refer or relate to the reasons why Dr. Jaber [sic] staff privileges had any restrictions as of July 6, 2021;”

4. Request to Produce No. 10: “Any and all DOCUMENTS that refer or relate how many patients have died at LACH while undergoing a surgical procedure by Dr. Jaber;”

5. Request to Produce No. 11: “Any and all DOCUMENTS that refer or relate to how many patients suffered a brain injury during head and neck surgery performed by Dr. Jaber at LACH.”

Defendant makes primary arguments in their moving papers: (1) that these requests ask for information and documents that are protected from discovery by California Evidence Code § 1157 (CEC § 1157); (2) that the request is an invasion of privacy to non-parties; and (3) that the matter requested is irrelevant. The Court agrees that the testimony and document requests are protected under CEC § 1157.

A. CEC § 1157

As pertinent here, CEC § 1157 provides: “Neither the proceedings nor the records of organized committees of medical…staffs in hospitals, or of a peer review body…having the

responsibility of evaluation and improvement of the quality of care rendered in the hospital…shall be subject to discovery.” (CEC § 1157(a).) In Alexander v. Superior Court (“Alexander”) our Supreme Court explained that CEC § 1157 broadly “protects ‘records’ of medical staff committees” including “staff applications.” 5 Cal. 4th 1218, 1225.

Plaintiffs cite pre-Alexander cases for the proposition that the “existence of events” that a hospital may investigate while determining hospital privileges are not automatically protected by Section 1157. But even if Plaintiffs were correct, the scope of the Plaintiffs’ requests as drafted plainly go well beyond the mere “existence of events.”

Sanctions

Court declines to impose sanctions.

CONCLUSION

Based on the foregoing, Defendant’s Motion to Quash is GRANTED. As such the motion for a protective order is moot. The request for sanctions is DENIED.