Judge Serena R. Murillo, Case 20STCV33718 2023-02-03 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV33718, Date: 2023-02-03 Tentative Ruling

Case Number: 20STCV33718 Hearing Date: February 3, 2023 Dept: 29

TENTATIVE

Defendant Pediatric & Family Medical Center dba Eisner Pediatric & Family Medical Center (erroneously sued as Eisner Health)’s motion to augment and/or substitute its expert witness designation is GRANTED on the condition that Defendant make Douglass Young, PhD available immediately for a deposition.

Legal Standard

On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to 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, or (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. (Code Civ. Proc., § 2034.610, subd. (a).)

This motion shall be made a sufficient time in advance to permit the deposition of any expert to whom the motion relates to be taken before the discovery cut-off, unless exceptional circumstances exist. (Code Civ. Proc., § 2034.610, subd. (b).)

Additionally, the motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2034.610, subd. (c).)

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, and (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.

(Code Civ. Proc., § 2034.620.)

Discussion

Defendant moves to augment its expert witness designation to replace Caroline Crump, PhD, who was to testify as to human factors, with Douglass Young, PhD. Defendant also moves the Court to allow Young to testify as to both biomechanics as well as human factors.

On January 11, 2022, Eisner timely served its designation of expert witnesses— Farhad Ardeshirpour, M.D. and Caroline Crump, PhD. (Angelo Decl., ¶ 2; Exh. A.) On August 18, 2022, Plaintiff served a second designation of expert witnesses, noting that Plaintiff had retained one additional medical expert—Stephen Grifka, M.D., and one additional non-retained expert—Mark Kayem, M.D. (Id., ¶ 8; Exh. E.) These doctors have recently opined that Plaintiff needs two surgeries each ranging between $30,000-$40,000. Dr. Kayem performed one of the surgeries on October 24, 2022.

On September 22, 2022, defense counsel Lisa Angelo and the law firm of Murchison & Cumming, LLP substituted into this case on behalf of Eisner. (Id., ¶ 10.)

Upon information and belief, on or about October 17, 2022, Caroline Crump, PhD sent an email to Eisner's former defense counsel, Bernadette Brouses, informing her that she was leaving Exponent and that a new or different expert would have to be retained for this case. Angelo, was not privy to this email nor was she notified about Crump's departure from Exponent. (Id., ¶ 11.) On November 30, 2022, Angelo attempted to contact Crump about the upcoming trial and to schedule a pre-trial conference. When Crump's phone numbers at Exponent came up disconnected, Angelo called both Exponent and Brouses to gather more information about Crump and her whereabouts. Exponent advised Angelo that Crump was no longer with the company. On December 1, 2022, Angelo spoke with Crump via Crump's personal cell phone. Crump advised that she left Exponent in late October 2022 after being recruited by a small start-up company to assist with cognitive performance training. Crump further advised that she has left the litigation consulting industry, works in San Marcos, California (outside of subpoena reach) and is unavailable to testify at the upcoming trial for Eisner. (Id., ¶ 14.) On December 1, 2022, Angelo spoke with Douglass Young, PhD from Exponent. Young advised that he previously worked on this case with Crump and that he was familiar with the file. He offered to take Crump's place in the case. After a brief dialogue with Young, Eisner agreed to retain him as its replacement expert. (Id., ¶ 15.)

On December 1, 2022, Angelo sent Plaintiff's counsel an email offering to "meet and confer" about the contents of this motion. Angelo inquired as to whether Plaintiff's counsel would agree to stipulate to the substitution of experts. On December 2, 2022, Angelo sent a second email to Plaintiff's counsel following up on her initial email attaching the CV for Young for Plaintiff’s counsel’s review and consideration. Plaintiff’s counsel responded and advised he would oppose this motion. (Id., ¶ 10; Exh. G.)

The Court first finds that the meet and confer requirements have been met. (Code Civ. Proc., § 2034.610, subd. (c).) Second, Angelo’s testimony is sufficient to establish that Defendant would not have determined to call Young in the exercise of reasonable diligence, as Defendant only recently learned that Crump has left litigation consulting and did not inform current defense counsel. Moreover, Defendant provides that it only recently learned that Plaintiff’s medical experts (who were designated on August 18, 2022) opine that she needs two surgeries ranging from $30,000-$40,000. (Id., § 2034.620, subd. (c).) Further, it does not appear that Plaintiff would be prejudiced by the substitution as Young previously worked on this case with Crump and he is replacing her as a human factors expert. As to Young’s testimony regarding biomechanics, Plaintiff served a second designation of expert witnesses, adding two medical experts, who have recently opined that Plaintiff needs two surgeries each ranging between $30,000-$40,000. Thus, Defendant is seeking to respond to that testimony via Young’s biomechanics testimony. Moreover, as Plaintiff has not filed an opposition, it does not appear that Plaintiff has relied on Crump’s expert designation, especially considering that Young is also designated to testify as to human factors. (Id., § 2034.620, subds. (a), (b).) Lastly, trial in this matter was continued to April 12, 2023, and discovery deadlines and motion cut-off dates are to track the new trial date. Thus, there is sufficient time for Plaintiff to depose Young before the expert cut-off date. (Id., § 2034.610, subd. (b).)

As such, the motion is granted on the condition that Defendant make Young available immediately for a deposition. (Id., § 2034.620, subd. (d).)

Conclusion

Based on the foregoing, Defendant’s motion to augment and/or substitute its expert witness designation is GRANTED on the condition that Defendant make Douglass Young, PhD available immediately for a deposition.

Moving party is ordered to give notice.