Judge: Steven A. Ellis, Case: 19STCV44782, Date: 2023-10-16 Tentative Ruling

Case Number: 19STCV44782    Hearing Date: October 19, 2023    Dept: 29

TENTATIVE

Defendants’ Motion for Protective Order is GRANTED.

Background 

This is a personal injury case arising out of an automobile collision that occurred on December 22, 2017, in Torrance, California. On December 12, 2019, Plaintiffs Rommi Lynn Boren (“Boren”), Cooper Soto (a minor), and Parker Soto (also a minor) (collectively, “Plaintiffs”) filed a complaint asserting causes of action for motor vehicle negligence and negligence against Defendants Laura Cuddy (“Cuddy”); Honda North America, Inc. (“Honda”); and Does 1 through 100. Plaintiffs allege that Defendant Cuddy caused the accident (and Plaintiffs’ resulting injuries) by driving her vehicle negligently and that when she did so she was acting in the course and scope of her employment with Honda.  (Complaint, ¶¶ 7, 11-13.)

On September 18, 2023, Plaintiffs designated their expert witness. They listed five retained experts plus sixteen non-retained experts. (Minassian Decl., Exh. A.) The non-retained experts are all doctors or other health care providers and include three radiologists, four pain medicine specialists, three surgeons, three physical therapists, and a chiropractor. (Id., ¶ 3.)

On September 25, 2023, Defendants filed the instant motion for protective order. On October 6, Plaintiffs filed an opposition. On October 12, Defendants filed a reply.

Meet and Confer

The motion for protective order is accompanied by the declaration of Ronald Minassian, which satisfies the meet and confer requirements. (Code Civ. Proc., § 2017.020(a).)

Discussion

The Court begins its analysis with the plain language of the applicable statute, Code of Civil Procedure section 2034.260, subdivision (b)(1). Under that statute, each party is required to list the persons (retained and non-retained) “whose expert opinion that party expects to offer in evidence at trial.” The key word, for purposes of the matter now before the Court, is “expects.”

Plaintiffs include 21 persons on their expert list. It would be a rare case indeed in which a party would truly expect to call 21 experts to testify at trial, but even assuming that such a rare case exists, this is not it. It may well be that Plaintiffs will call some, most, or even all of the 16 non-retained health care professionals to testify as percipient witnesses, but the Court does not find on this record that Plaintiffs actually expect to offer expert opinion testimony from all 16 witnesses. Accordingly, the Court concludes that Plaintiffs have over-designated in a manner that is not consistent with the requirements of section 2034.260.

(The Court also notes that Defendants rely on Kalaba v. Gray (2002) 95 Cal.App.4th 1416. Although that case provides helpful general background, it does not directly address the current dispute. In Kalaba, the plaintiff’s expert list did not identify the experts by name but rather stated in general terms “all past or present examining and/or treating physicians.” The trial court did not allow the treating physicians to provide expert testimony at trial, and the Court of Appeal affirmed. Here, in contrast, Plaintiffs have individually and specifically identified the treating physicians, and the issue is the number of listed experts, not the specificity of the designation.)

To remedy this over-designation, Defendants seek a protective order under Code of Civil Procedure section 2034.250, subdivision (b). That subdivision empowers the court, for good cause shown, to “make any order that justice requires to protect any part from unwarranted … expense.” The statute then goes on to provide a non-exclusive list of orders that a court may make, including an order that a party “reduce the list of employed or retained experts designated … under subdivision (b) of Section 2034.210.” (Code Civ. Proc., § 2034.250, subd. (b)(6).)

Here, Defendants do not seek an order requiring Plaintiffs to reduce the list of retained experts (specifically authorized by subdivision (b)(6)) but instead an order requiring Plaintiffs to reduce the list of non-retained experts. Given the broad general language of the introductory section of subdivision (b), and the Legislatures specific direction that the examples of orders set forth in subdivisions (b)(1) through (b)(6) are not exclusive, the Court concludes that it has the authority to make the order requested by Defendants. And, after considering all of the evidence and argument submitted by both sides, the Court concludes that Defendants have shown good cause for the requested order.

Accordingly, the Court GRANTS Defendants motion.

Pursuant to Code of Civil Procedure section 2034.210, subdivision (a), and section 2034.250, subdivision (b), the Court ORDERS Plaintiffs to serve, by no later than October 26, 2023, a revised list of persons whose expert opinion Plaintiffs actually expect to offer in evidence at the trial.

The Court also notes that the unreasonable failure to list experts in a manner that complies with Code of Civil Procedure section 2034.260 may, under certain circumstances, provide a basis for the trial court to exclude expert witness testimony. (Code Civ. Proc., § 2034.300.)

Conclusion

The Court GRANTS Defendants’ motion.

The Court ORDERS Plaintiffs to serve, by no later than October 26, 2023, a revised list of persons whose expert opinion Plaintiffs actually expect to offer in evidence at the trial.

Moving party is ordered to give notice.