Judge: Stephen I. Goorvitch, Case: 19STCV40052, Date: 2023-08-07 Tentative Ruling

Case Number: 19STCV40052    Hearing Date: August 7, 2023    Dept: 39

Jeremy James Cotton v. City of Los Angeles, et al.

Case No. 19STCV40052

Motion to Designate Untimely Expert Witness

BACKGROUND

Plaintiff Jeremy Cotton (“Plaintiff”) filed this excessive force case against the City of Los Angeles (the “City”) alleging civil rights violations by the Los Angeles Police Department (the “LAPD”).  Plaintiff alleges that he was detained by LAPD officers, even though he had done nothing unlawful, and Officer Nathan Brown aggressively pinned him to the ground by placing weight on Plaintiff’s lower back.  Plaintiff alleges that the LAPD officers released him, explaining that “sometimes they ‘get the wrong guy.’”  Plaintiff alleges that as a result of the excessive force, he suffered a broken rib, chest trauma, and a herniated disc at L4 and L5, necessitating spinal surgery.  Now, Defendants seek to designate an untimely expert, a radiologist, and Plaintiff opposes the motion.  The motion is denied, though this order shall not preclude Defendants from calling the expert as a rebuttal witness under Code of Civil Procedure section 2034.310(b). 

PROCEDURAL HISTORY

            A.        Background  

            Plaintiff filed this action on November 6, 2019.  The case was removed to federal court on December 18, 2019, and remanded on August 7, 2020.  Following the remand, Plaintiff named seven LAPD officers as individual defendants.  The Court (Aenlle-Rocha, J.) held a case management conference on October 15, 2020, and set an initial trial date of December 6, 2021.  Per the parties’ stipulation, the trial was continued to May 10, 2022, and the Court set the expert designation and discovery deadlines based on the new trial date.  (See Court’s Minute Order, dated September 29, 2021.)  Pursuant to the parties’ stipulation, the Court continued the trial date to October 25, 2022, and set all discovery deadlines based on the new trial date.  (See Court’s Minute Order, dated March 23, 2022.)  Pursuant to the parties’ stipulation, the Court continued the trial date to November 7, 2022, but ordered that the discovery deadlines shall be based on the former trial date.  (See Court’s Minute Order, dated August 15, 2022.) 

            B.        The City’s First Request for a Trial Continuance due to Officer Brown

            Defendants then requested a series of trial continuances due to the unavailability of Officer Nathan Brown, who was injured on duty.  Defendants filed their first ex parte application on October 5, 2023, which Plaintiff did not oppose.  The Court granted the application and set trial for April 3, 2023.  (See Court’s Minute Orders, dated October 6, 2022, and October 19, 2022.)  The Court re-opened expert discovery and set all expert discovery deadlines based on the new trial date.  (See Court’s Minute Order, dated October 19, 2022.) 

            C.        The City’s Second Request for a Trial Continuance due to Officer Brown

Defendants filed a second ex parte application on March 9, 2023, which Plaintiff did not oppose.  At that point, Officer Brown was scheduled to return to work on March 28, 2023.  (See Court’s Minute Order, dated March 13, 2023.)  The Court granted the application and set trial for July 10, 2023.  (Ibid.)  The Court ordered that all discovery deadlines shall be based on the former trial date (April 3, 2023) with the exception of the deposition of Mr. Roger Clark.  (Ibid.)  The Court ordered that there shall be no further continuances absent good cause and ordered Defendants’ counsel to monitor Officer Brown’s status.  (Ibid.)  The Court provided notice: “If Defendant’s counsel does not proceed expeditiously in alerting Plaintiff’s counsel and the Court to scheduling issues with Officer Brown, absent good cause, the Court may not continue the trial to accommodate Officer Brown’s schedule.”  (Ibid.)

D.        The City’s Third Request for a Trial Continuance due to Officer Brown

Defendants filed a notice alerting Plaintiff and the Court that Officer Brown’s return date was postpone to May 4, 2023, but that would not interfere with the trial date.  (See Defendants’ Notice, dated April 10, 2023.)  Then, on June 16, 2023, approximately three weeks before trial, Defendants filed another ex parte application to continue the trial date based upon Officer Brown’s status.  The Court found that Defendants were dilatory in raising this issue:

“Now, the City reports that Officer Brown did not, in fact, return to work on May 4, 2023, as scheduled. But the City waited approximately six weeks later to file this ex parte application.  In so doing, the City has been unmindful of Plaintiff’s counsel and the Court’s schedules.  During the hearing on March 13, 2023, the Court expressly ordered the City to monitor Officer Brown’s situation and communicate expeditiously with Plaintiff’s counsel and the Court.  The Court explained—expressly and clearly—that it was the City’s responsibility to manage this issue. The City has not done so. The City should have communicated regularly with Officer Brown, and filed this ex parte application no later than May 5, 2023. This is especially troubling because Plaintiff’s counsel arranged his schedule to try this case, and the Court has been saving this trial date for this case.  Had the City filed this ex parte application even a few days earlier, the Court could have given this trial date to several other cases that had to be continued.”

(See Court’s Minute Order, dated June 21, 2023.)  The Court also found no good cause for a trial continuance:

“Putting that aside, the record does not support a finding of good cause. Not only does the Deputy City Attorney not have first-hand knowledge of Officer Brown’s condition, the declaration provides no information why, after over nine months of recovery, Officer Brown still would not be able to testify at trial. The City provides no information concerning Officer Brown’s condition or prognosis. Rather, the record suggests that the City is conflating Officer Brown’s return-towork date with his ability to prepare for and testify at trial. The mere fact that Officer Brown is not well enough to resume his duties as a police officer does not mean he cannot attend witness preparation sessions and prepare for trial. Moreover, Officer Brown is not a third-party witness testifying in his official capacity; he is a named defendant in his personal capacity. As such, he is required to participate in this case, even if he is off-duty from the LAPD.”

(Ibid.)  The Court afforded Defendants an opportunity to provide additional information concerning Officer Brown’s medical condition in support of the ex parte application, but Defendants withdrew the application.

            Subsequently, at the final status conference, the parties stipulated to one additional trial continuance on the following conditions: (1) The Court would continue the trial date one additional time to accommodate Officer Brown’s condition and recovery but the Court will not grant any further conditions based upon Officer Brown’s condition, given that the new trial date would give him approximately one year to have recovered from his injuries; (2) If Officer Brown cannot attend the trial physically, he may appear throughout the entire trial remotely; (3) The City Attorney’s Office will be responsible for facilitating the remote appearance using the technology available; and (4) If the available technology does not allow for a remote appearance by Officer Brown, e.g., there are technical issues, Officer Brown cannot see/hear the witnesses/exhibits, etc., the Court will not delay the trial or declare a mistrial; the trial will proceed in the absence of Officer Brown and he will have waived his appearance for trial.  (Court’s Minute Order, dated June 30, 2023.)  The Court set trial for October 10, 2023, and ordered that all discovery deadlines, including the expert designation and discovery deadlines, shall be based on the former trial date (April 3, 2023).

            E.         Expert Designations

            The expert designation and discovery deadlines were based upon a trial date of April 3, 2023.  The parties exchanged expert designations on September 19, 2022.  (See Declaration of Shant G. Taslakian, Exhs. #1 & #2.)  Plaintiff designated the following experts: (1) Dr. Leonel Hunt, an orthopedic surgeon; (2) Stefan A, Santoro, an acupuncturist; (3) Jeff Bradley, a physical therapist, and (4) Tyra Beavers, a chiropractor, among others.  (See id., Exh. #2.)  Defendants designated Dr. Karen Altman, Plaintiff’s treating physician, among others.  (See id., Exh. #1.)  Neither party made supplemental expert designations.

LEGAL STANDARD

            The Court may grant leave to designate an untimely expert witness under Code of Civil Procedure section 2034.710.  The Court may grant such a motion only of all of the following conditions are satisfied: (1) The Court has considered the extent to which Plaintiff has relied on the absence of the expert; (2) There is no prejudice to Plaintiff in maintaining his action on the merits; (3) Defendants failed to designate the expert as a result of “mistake, inadvertence, surprise, or excusable neglect; (4) Defendants sought leave to designate the expert promptly; and (5) Defendants promptly served the designation.  (Code Civ. Proc., § 2034.720.)

DISCUSSION  

            Defendants seek to designate Dr. Barry D. Pressman, a radiologist who is the Chair of Imaging at Cedar Sinai Medical Center, who will testify that he does not see an acute or recent rib fracture in the medical imaging of Plaintiff.  Defendants do not establish that the failure to consult and designate Dr. Pressman was the result of mistake, inadvertence, or excusable neglect.  Defendants have been on notice from the inception of this case that Plaintiff allegedly suffered a broken rib.  In the complaint, filed on November 6, 2019, Plaintiff alleged that he felt “incredible pain to his . . . rib cage” as a result of the incident.  (Complaint, ¶ 29.)  Plaintiff also alleged that he “was discharged from the hospital with a diagnosis of a broken rib [and] chest trauma . . . .”  (Id., ¶ 30.)  Defendants have had Plaintiff’s medical records since 2020.  (See Declaration of Sheldon I. Lodmer, ¶ 3(c).)  As a result, Defendants have been on notice for years that they would need a radiologist to review Plaintiff’s imaging to verify the existence of a broken rib.  Defendants’ motion articulates no good cause for their failure to do so.  Defendant’s counsel relies only on his and his predecessor’s “strenuous workload due to lawsuits arising from civil unrest that occurred in the City of Los Angeles, as well as the backlog of cases set for trial due to the Covid-19 Pandemic.”  (Declaration of Shant G. Taskalkian, ¶ 4.)  This is not good cause.  It should have been an apparent and straightforward matter for an investigator at the City Attorney’s Office to show the imaging to a radiologist to confirm the existence of a broken rib and chest trauma.  Even if the failure to do so was based upon a “strenuous workload,” this is not “excusable” neglect.  The City Attorney’s Office could have resolved that problem by hiring more lawyers, sending more cases to outside counsel, or settling more cases.    

            The Court also finds that there would be prejudice to Plaintiff.  This case has been largely ready for trial on the issues for quite a long time.  Plaintiff intends to try this case without a radiologist.  Granting this motion would require Plaintiff’s counsel to designate a new expert witness and revise his trial preparation and presentation.  (See Declaration of Sheldon I. Lodmer, ¶ 6.)  The Court also has concerns whether expert discovery would be completed before the trial date.  As discussed, the Court has repeatedly continued this trial at Defendants’ request, and Plaintiff’s counsel stipulated to the last continuance only on the condition that this is a firm trial date.  For these reasons, the Court finds that granting Defendants’ motion would unduly prejudice Plaintiff.  The Court need not reach Plaintiff’s counsel’s argument that Defendants’ expert disclosure relating to Dr. Pressman does not satisfy the requirements of Code of Civil Procedure section 2034.720(c)(3). 

CONCLUSION AND ORDER

Based upon the foregoing, Defendants’ motion to designate Dr. Barry Plessman as an expert at trial is denied.  This order shall not preclude Defendants from calling Dr. Plessman as a rebuttal witness under Code of Civil Procedure section 2034.310(b).  Defendants’ counsel shall provide notice and file proof of such with the Court.