Judge Stephen P. Pfahler, Case 19STCV40434 2023-05-16 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 19STCV40434, Date: 2023-05-16 Tentative Ruling

Case Number: 19STCV40434 Hearing Date: May 16, 2023 Dept: F49

Dept. F-49

Date: 5-16-23

Case #19STCV40434

Trial Date: 7-17-23 c/f 2-14-23 c/f 6-6-22

AUGMENT EXPERT WITNESS LIST

MOVING PARTY: Defendant, Facey Medical Group

RESPONDING PARTY: Plaintiff, John Doe

RELIEF REQUESTED

Motion for Leave to Augment Expert Witness List

SUMMARY OF ACTION

On May 28, 2019, Plaintiff John Doe attended a yearly physical examination with Defendant Gregory Castillo. Plaintiff alleges that Dr. Castillo first began “repeatedly and inappropriately rubbing” plaintiff’s arms and legs, next proceeded to grab Plaintiff’s penis and testicles without “medical justification.” Dr. Castillo then began to digitally penetrate Plaintiff’s anus. During the course of this conduct, Dr. Castillo allegedly rubbed his own genitals on Plaintiff’s body for purposes of sexual gratification.

Notwithstanding the end of the conduct in the examination room, Dr. Castillo then removed a wart from the finger of Plaintiff in another room, and again rubbed his genitals on Plaintiff and again inappropriately touched him on the arms and legs. Dr. Castillo later told Plaintiff that the penal examination was required, due to an alleged lesion, which was not documented in any medical notes.

On November 7, 2019, Plaintiff filed his complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training.

The action was transferred to Department 49 on January 28, 2020.

On May 4, 2020, Plaintiff dismissed Providence Health & Services, David Mast, Jim Corwin and Teresa David. On June 19, 2020, the parties submitted a stipulated protective order for the exchange of discovery. On August 4, 2020, Plaintiff filed a first amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training. On August 5, 2020, Plaintiff filed a second dismissal of defendants Providence Health & Services, David Mast, Jim Corwin and Teresa David.

On November 3, 2020, the court sustained the demurrer Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the first amended complaint, and denied the motion to strike the use of pseudonyms. On December 3, 2020, Plaintiff filed the second amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training, and Negligence.

On March 9, 2021, the court sustained the demurrer of Gregory Castillo, M.D. without leave to amend as to the fourth cause of action for constructive fraud, and fifth cause of action for unfair business practices. The court overruled the remainder of the demurrer. The court also granted the motion to strike the claim for punitive damages without prejudice, and granted the motion to strike the claim for treble damages with prejudice. On March 10, 2021, the court denied the motion for leave to add a claim for punitive damages against the medical defendants. On March 15, 2021, Castillo answered the second amended complaint.

On June 25, 2021, the court overruled the demurrer of Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the second amended complaint, and granted the motion to strike the claim for punitive damages. Defendants answered the second amended complaint on June 30, 2021.

On December 28, 2021, the court adopted the report and recommendations of discovery referee Honorable Richard Rico in regards to a motion to compel further response to Special Interrogatories (set two) from defendant Castillo. On January 11, 2022, the court granted the ex parte motion to stay enforcement of the report and recommendations of the referee report, and stayed the entire action.

On March 1, 2022, the court denied the motion to sever. On April 19, 2022, the court declined to deem the 22STCV04812, John Doe, et al. v. Facey Medical Group, et al. related, and denied the motion to consolidate the cases.

On July 11, 2022, the court vacated the December 28, 2021, adopted recommendations and findings of the referee regarding special interrogatories, numbers 26 and 34. On August 9, 2022, the court denied the motion for summary judgment of Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D., but granted summary adjudication as to the first, second, third, fourth, fifth, sixth and eighth causes of action for sexual battery, sexual orientation related violence, sexual harassment, constructive fraud, unfair business practices, intentional infliction of emotional distress, and negligence. Doctors Marter and Davydov are now dismissed with the remaining claim for Negligent Hiring, Retention, Supervision and Training remaining against Facey Medical Group.

RULING: Granted.

Defendant Facey Medical Group moves for leave to augment and amend the expert witness list in order to designate three counter expert witnesses on medical staff operations, psychology, and vocational rehabilitation. Defendant contends the witnesses were presented timely presented as part of an exchange, but due to objections from Plaintiff, the motion became necessary.

Plaintiff in opposition challenges the motion on grounds that the witnesses were not timely designated, and challenges the decision to rely on a counter designation rather than proactively deciding to designate experts, even after informing Defendant of the intended fields of expert testimony.

Defendant in reply argues that it did not have advance notice (i.e., prior to the date of expert witness exchange) of which expert witnesses plaintiff was planning on designating for trial testimony, nor would that justify exclusion of defendant’s experts. Defendant reiterates the lack of prejudice, due both the continuance of the trial date, and making the witness available for deposition. Plaintiff also maintains the expert witness exchange was timely.

“After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses …” (Code Civ. Proc., § 2034.210.) “Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. A party shall make this demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” (Code Civ. Proc., § 2034.220.)

(a) A demand for an exchange of information concerning expert trial witnesses shall be in writing and shall identify, below the title of the case, the party making the demand. The demand shall state that it is being made under this chapter.

(b) The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.

Code Civ. Proc., § 2034.230

Facey represents the parties agreed upon extension of the cutoffs indexed to the prior trial date of 2-14-23, thereby leading to the last demand for exchange on December 27, 2023, though a prior exchange was served on March 23, 2022 presumably in conformance with the prior June 6, 2022, trial date. [Declaration of Zachary Schwake ¶¶ 2-5.] (See Code Civ. Proc., § 2024.050, subd. (a).) In the December 23, 2022, exchange, Plaintiff designated the three experts in the fields of healthcare management, psychology, and vocational rehabilitation. On January 17, 2023, Facey designated its three counter witnesses in the same fields.

Facey cites to the language of Code of Civil Procedure § 2034.280.

(a) Within 20 days after the exchange described in Section 2034.260, any 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.

(b) This supplemental list shall be accompanied by an expert witness declaration under subdivision (c) of Section 2034.260 concerning those additional experts, and by all discoverable reports and writings, if any, made by those additional experts.

…

(Code Civ. Proc., § 2034.280.)

Facey correctly cites to the standard regarding the necessity of a counter expert in order to obtain leave at this time in a case. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 497; see Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1025.) Facey categorically identifies the three experts and their areas of testimony as directly responsive to the three experts of Plaintiff. [Schwake Decl., ¶ 5.] The court finds no presentation of experts beyond the scope of Plaintiffs’ designated experts.

Plaintiff in opposition, however, finds support for the argument in that Facey was apprised of the claims, and waiting for a counter-designation violates the policy behind “simultaneous exchange.” [Declaration of Geraldine Weiss, ¶¶ 3, 5-8, Ex. 3, 5-8.] The circumstances square with the facts presented in Fairfax v. Lords, whereby counsel chose to wait for disclosure of expert witnesses after specifically declining to declare any witnesses in the initial exchange. The court rejected the argument allowing for a party to wait and counter appropriately. (Fairfax v. Lords (2006) 138 Cal.App.4th at pp. 1025-1027.) Counsel for Facey tacitly concedes to the “technical” error, but maintains such conduct constitutes a routine practice with no objections from opposing counsel until this motion. [Schwake Dec., ¶ 10.] Under the precedent of Fairfax v. Lords, the court cannot allow the clear decision of Counsel for Facey to forego designating an expert under the circumstances, whether intentional or not, only to later allow a counter-designation under Code of Civil Procedure section 2034.280. [Schwake Decl., ¶¶ 3, 10, Ex. A.]

Facey anticipating this result, however, alternatively requests leave under the mistake, inadvertence, and/or excusable mistake standard via two separate code sections. Code of Civil Procedure section 2034.620 allows for a party to augment an expert witness list requires under the following conditions:

“(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. (c) The court has determined either of the following: (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. (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.)

“The court shall grant leave to submit tardy expert witness information 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 absence of a 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. (c) The court has determined that the moving party did all of the following: (1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. (2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. (3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action. (d) The order 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., § 2034.720.)

The standard of review bars relief where the “[f]ailure to comply with expert designation rules may be found to be ‘unreasonable’ when a party's conduct gives the appearance of gamesmanship…” (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447.) In considering the term “gamesmanship,” the court considers the context of purpose of the rule—imposing an unfair disadvantage or prejudice to the impacted party. (Id. at pp. 1447-1448.) The court acknowledges the history of the action and the difficulties in litigating the action; the court declines to take into account the parties acrimonious history in determining the merits of the instant motion.

Still, while Plaintiff indisputably establishes a violation of the policy behind the rule for exchange under section 2034.280, the court adheres to a policy of equal discovery and complete adjudication on the merits of all actions brought to trial. The court appreciates the potential characterization of defense counsel’s actions as a known, calculated disregard of the rules, with the provision relief only justifying the continued flouting of rules, thereby continued enabling of such behavior in violation of Fairfax v. Lords.

Nevertheless, the court policy favoring trial on the merits requires consideration of effects to the impacted party. Missing from the opposition is a true showing of prejudice as a result of the conduct of counsel for Facey, regardless of Plaintiff’s counsel’s personal opinions for the tactical decisions and consequences. On the other hand, the prejudice to Facey could be catastrophic. The exclusion of the three expert witnesses constitutes an effective evidentiary, issue and even “terminating sanction” potentially eviscerating Facey’s defense of the case. (Staub v. Kiley, supra, 226 Cal.App.4th at p. 1448.)

Trial remains set for July 17, 2023, and the motion was on file since February 2023. Plaintiff was therefore aware of the possibility regarding potential relief, even before the motion was filed. The court continues to find more than sufficient time to take the three depositions and adjust trial preparation as necessary, and therefore a lack of prejudice to Plaintiff. The court declines to impose a potentially devastating harsh result under the circumstances. The parties are ordered to cooperate in the setting of depositions.

Trial date remains set for July 17, 2023.

Facey to give notice to all parties.