Judge Stephen P. Pfahler, Case MC027686 2022-10-12 Tentative Ruling

The action arises from a February 2, 2016 incident whereby Plaintiff Pablo Scipione was performing electrical work on the premises of a business owned, managed and/or operated by Defendant Kinkisharyo International, LLC, and identified as the “Train Factory.” Plaintiff alleges slipping off the wet roof of a train, and fell, thereby causing injuries. Plaintiff filed a complaint on January 25, 2018 for negligence. On March 20, 2018, Plaintiff filed a first amended complaint for negligence. On March 19, 2019, Plaintiff filed the second amended complaint for negligence, and equitable estoppel. On July 18, 2019, Plaintiff filed the third amended complaint for negligence and equitable estoppel, and negligent hiring, supervision, and retention. On January 16, 2020, Plaintiff filed the fourth amended complaint for Negligence and Equitable Estoppel, and Negligent Hiring, Supervision and Retention.

The action was first reassigned from Judge Morgan to Judge Chang on March 26, 2021. On January 28, 2022, the case was assigned from Judge Chang to Judge Kelley. Defendant filed a 170.6 against Judge Kelley, thereby leading to the transfer from Antelope Valley Courthouse to Department 49 on February 4, 2022.

Defendant, Kinkisharyo International, LLC (Kinkisharyo) moves for leave to augment and amend the expert witness list in order to designate Alyssa Watanabe, M.D., and Tye Ouzounian, M.D. Dr. Watanabe will “proffer radiologist opinions for which its non-radiologist experts will use as foundation for their opinions.” Dr. Ouzounian will remain an optional witness on the subject of orthopedics, specifically foot and ankle as a potential counter witness to treating podiatrist and foot surgeon, Dr. Nasim Kalhor. Defendant denies any duplicative testimony with any other experts.

Plaintiff in opposition challenges the motion on untimely designation,[1] redundant experts, and prejudice. Plaintiff contends that defendant was put on notice regarding the claim of Complex Regional Pain Syndrome (CRPS) since 2018, and cannot now seek to add in new experts on the eve of trial.

Kinkisharyo in reply contends the motion is timely. Kinkisharyo also denies the experts are in any way cumulative and/or duplicative. Kinkisharyo denies any showing of prejudice, and contends Plaintiff mischaracterizes prior rulings of the court.

(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do 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.

(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.

(b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

Given the extension of the discovery cutoff to the current trial date for purposes of completing expert deposition testimony, also relied upon by Plaintiff, the court finds the motion timely. (Code Civ. Proc., § 203.610, subd. (b).)

The court may allow for supplemental designation. Pursuant to Code of Civil Procedure § 2034.620, a motion to augment a list requires a finding of 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.

(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.”

Kinkisharyo may seek leave to augment the witness list as a counter expert in order to obtain leave at this time in the case. (Code Civ. Proc., § 2034.280, subd. (a); 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.) Redundant testimony may be grounds for rejection of new experts, but not necessarily a definitive basis for denial “We do not believe the fact that the new expert is not cumulative establishes the proper standard of prejudice.” (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1478.) The court must also focus on prejudice to opposing counsel. (Id. at p. 1479.) The prejudice standard is determined by the responding party’s ability to respond to new testimony. (Id., at pp. 1479-1480.)

The designation, withdrawal, and sought after re-designation of Dr. Ouzounian as an expert, remains undisputed. Defense counsel denies any intention to offer duplicative testimony and contends the sought after designation presents solely as a means of countering the testimony of treating podiatrist, Dr. Ouzounian. [Declaration of Patricia Ball, ¶¶ 7-8.] The court finds no basis for denial of Dr. Grogan based on the removal and re-designation in response to Dr. Kahlhor. The court declines to interpret the code sections as requiring a “new” expert (e.g. never previously designated) as actual criteria for determining allowable augmentation.

The court also finds the designation on the subject matter the proper subject matter of counter expert testimony. The history of the parties and arguments over knowledge and tactics regarding the sought after designations naturally delves into consideration of prejudice.

Plaintiff is admittedly familiar with Dr. Ouzounian from the prior designation, which admittedly mitigates a certain portion of the prejudice claim. While no deposition occurred, the court finds Plaintiff’s familiarity with the damages claims minimally impacts any impacts to the scope of the damages claims involving lower extremities. The motion also comes slightly one month before trial, thereby leaving the parties with sufficient time to depose Dr. Ouzounian.

The case was filed in January 2018, and will therefore enter its fifth year in January 2023. A potential spot may be provided in the long cause trial court, and the court declines to allow any further excuses for a potential trial continuance. The area of inquiry is established, and nothing in the proposed designation in any way expands the scope of discovery or constitutes a threat to the trial date. Given the extremely aggressive tactics of both sides in the litigation, including the parties taking advantage of the discovery deadline extension with two additional ex parte discovery orders adding in even more discovery on the cusp of the trial, any claims of prejudice as a consequence of the extension presents a potential, unilaterally perceived disingenuous posture.

The court also finds no basis of prejudice arising from alleged redundancy. Nothing in the claim redundancy argument in any way justifies an outright denial. Any potential testimony should be addressed in a motion in limine.[2]

The court therefore finds no basis of prejudice based on the presentation of a witness designated to testify on a non-redundant areas regarding lower extremity treatment and prognosis. The subject claim is a defined part of the claim and neither party lacks familiarity with the subject matter. The court finds adequate time to complete the deposition within the month before trial.

The court also finds no substantive argument against Dr. Watanabe, other than a claim of no “good cause.” The court finds the provision of foundation testimony proper encompassing counter testimony, and again, will not prejudice Plaintiff in that Dr. Watanabe will not offer any new testimony expanding the scope of the defense.

The court therefore grants leave to augment the expert witness list in order to add the two experts. The court orders to cooperate in the setting of a mutually convenient deposition date within the next 15 days. (Code Civ. Proc. § 2034.620, subd. (d).) All fees and costs shall be set according to existing rules. The court declines to make any special findings regarding allocation of costs

[1]The court declines to consider the untimeliness arguments in that the purpose of the subject motion is to allow for late leave following the lapse of the expert witness exchange deadline.

[2]The court expects that Dr. Ouzounian will offer testimony regarding the diagnosis, care and treatment of the presented lower extremity injuries, rather than any discussion as to the standard of care for the treating podiatrist. Such subject matter is more properly addressed in a motion in limine.