Judge: Steven A. Ellis, Case: 21STCV03378, Date: 2023-09-05 Tentative Ruling

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ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 21STCV03378    Hearing Date: February 5, 2024    Dept: 29

Tentative

The motion is DENIED.

Background

This arises from a motor vehicle accident that occurred on February 18, 2019.

On January 28, 2021, Plaintiffs Jason Duplantis and Annie Duplantis (“Plaintiffs”) filed their complaint against Defendants Jerry Byrne, Yolanda Byrne (collectively “Defendants”), and Does 1 to 50, asserting causes of action for (1) Negligence and (2) Loss of Consortium.

On January 12, 2024, Plaintiffs filed an ex parte application for a protective order to limit Defendants’ expert designations. The ex parte was heard on January 16, 2024, with the Court setting a hearing for the motion and allowing the ex parte application to serve as the moving papers. Defendants filed their opposition on January 24, 2024. Plaintiffs filed their reply on January 29, 2024.

Legal Standard

Code of Civil Procedure section 2034.250 permits a party who has been served with a demand to exchange information concerning expert trial witnesses to promptly move for a protective order.  The motion shall be accompanied by a meet and confer declaration under Section 2016.040.  (Code Civ. Proc., § 2034.250, subd. (a).)  The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.  The protective order may include, but is not limited to, one or more of the following directions:

(1) That the demand be quashed because it was not timely served.

(2) That the date of exchange be earlier or later than that specified in the demand.

(3) That the exchange be made only on specified terms and conditions.

(4) That the production and exchange of any reports and writings of experts be made at a different place or at a different time than specified in the demand.

(5) That some or all of the parties be divided into sides on the basis of their identity of interest in the issues in the action, and that the designation of any experts as described in subdivision (b) of Section 2034.210 be made by any side so created.

(6) That a party or a side reduce the list of employed or retained experts designated by that party or side under subdivision (b) of Section 2034.210.

(Code Civ. Proc., § 2034.250, subd. (b).)

If the motion for a protective order is denied in whole or in part, the court may order that the parties against whom the motion is brought, provide or permit the discovery against which the protection was sought on those terms and conditions that are just.  (Code Civ. Proc., § 2034.250, subd. (c).)  

Discussion

Plaintiffs seek a protective order arguing that Defendants have listed duplicative expert witnesses in their expert designation. Plaintiffs contend Harm Jansen and Tyler Shaw “will offer duplicative and cumulative testimony regarding the accident reconstruction of subject incident that occurred on February 18, 2019.” (Ex parte, 7:7-8.) Further, both experts are listed as accident reconstructionists who work at the same company. Plaintiffs provides a comparison from the expert designation as the similarities in topics both experts will opine. (Id., 4-5:16-28, 1-4; Exhibit B, Defendant’s 2034 Expert Designation.)

As a basic rule, a party need not, and generally cannot, call two experts to offer one opinion.  But after reviewing the evidence and argument submitted by both sides, the Court concludes that Defendants are not seeking to call two experts to offer one opinion.  Although Defendant’s 2034 Expert Designation lists both Mr. Jansen and Mr. Shaw as accident reconstructionists, Mr. Shaw is also listed as a biomechanical expert. (Exhibit B, ¶¶ 3, 9.) Defendants contend Mr. Jansen will opine on the vehicles, the accident scene, mechanics and dynamics of the incident, safety issues, how and why the accident occurred, and the property damage sustained. (Id., ¶ 3.) Mr. Shaw will opine on the bioengineering of the accident for Plaintiff’s suit and alleged injuries, how the force of the impact applied to Plaintiff, and the effect of the force on Plaintiff’s body. (Id., ¶ 9.)

The Court understands that the testimony of these two experts is different, and on that basis denies the motion. To the extent Plaintiffs still contend that there is some overlap with these experts’ opinions, Plaintiffs may seek appropriate relief through a motion in limine, which will be heard by the the trial court.

Therefore, the Court DENIES Plaintiffs’ motion for a protective order regarding expert designations.

Conclusion

The Court DENIES Plaintiffs’ motion for a protective order regarding expert designations.

Plaintiffs are ORDERED to give notice.