Judge: Theresa M. Traber, Case: 19STCV44842, Date: 2024-01-10 Tentative Ruling
Case Number: 19STCV44842 Hearing Date: January 10, 2024 Dept: 47
Ophir Gottlieb v. Pacific 2110 Bentley, LP et al., Case No. 19STCV44842
Plaintiff’s Motion in Limine No. 1, seeking to preclude Defendants’ Expert, Robert Griswold, from testifying about legal and medical issues and on matters as to which he is not qualified to render an opinion.
TENTATIVE: DENIED.
Plaintiff has failed to provide an expert report or deposition testimony by Robert Griswold so the Court cannot evaluate whether his opinions improperly usurp the Court’s responsibility for instructing the jury on the applicable law or invade the province of the jury by offering opinions about how to apply the legal standards to the facts in the case. Nor is there any showing that Mr. Griswold, a real estate broker and property manager, will attempt to offer opinions outside his expertise, such as those that might be presented by a physician regarding medical diagnoses or causation or by an environmental scientist on the health hazard of mold and/or its collection, testing, or remediation. Without specific evidence about what allegedly improper opinions Mr. Griswold will offer at trial, the Court cannot rule on whether he has the credentials and expertise to opine on the subject matters addressed. Accordingly, the Court must deny the motion. To the extent there are specific opinions that Plaintiff contends should be excluded at trial, they should be presented to the Court by way of declarations or deposition transcripts so the Court can determine whether it should issue a limiting evidentiary order or set a hearing under Evidence Code section 402.
Plaintiff’s Motion in Limine No. 2, seeking to preclude Defendants’ Expert, Brian Daly, from testifying about legal and medical issues and on matters as to which he is not qualified to render an opinion.
TENTATIVE: DENIED.
Plaintiff has failed to provide an expert report or deposition testimony by Brian Daly so the Court cannot evaluate whether his opinions improperly usurp the Court’s responsibility for instructing the jury on the applicable law or invade the province of the jury by offering opinions about how to apply the legal standards to the facts in the case. Nor is there any showing that Mr. Daly, an industrial hygienist and environmental health scientist, will attempt to offer opinions outside his expertise, such as those that might be presented by a physician regarding medical diagnoses or causation. Without specific evidence about what allegedly improper opinions Mr. Daly will offer at trial, the Court cannot rule on whether he has the credentials and expertise to opine on the subject matters addressed. Accordingly, the Court must deny the motion. To the extent there are specific opinions that Plaintiff contends should be excluded at trial, they should be presented to the Court by way of declarations or deposition transcripts so the Court can determine whether it should issue a limiting evidentiary order or set a hearing under Evidence Code section 402.
Plaintiff’s Motion in Limine No. 3, seeking to preclude Defendants from introducing any evidence re Medical Board actions against Plaintiff’s Expert, Robin Bernhoft, M.D.
TENTATIVE RULING: GRANTED.
The stipulated Disciplinary Order issued by the Medical Board arose from charges that Dr. Bernhoft provided medical exemption letters to excuse three children of his adult patients from being required to submit to vaccinations. Plaintiff argues the Disciplinary Order and the charges and conduct on which it was based are irrelevant to the causation opinions Dr. Bernhoft will offer in this action and, even if there is any marginal relevance, are so prejudicial and time-consuming that the evidence should be excluded under Evidence Code § 352. The Court agrees.
Dr. Bernhoft’s decision to provide medical exemption letters for three children as a favor to several of his adult patients reveals a lack of judgment and constitutes practice outside his qualifications in that he is not a pediatrician and does not treat children as part of his practice but has little significance for his opinions regarding the causal relationship between toxic mold and multiple sclerosis in the adult plaintiffs he has examined and treated. The notion that the evidence falls within the scope of habit evidence under Evidence Code § 1105 is unpersuasive as the alleged habit or pattern has to do with treating children without pediatric credentials, not with providing treatment or medical opinions to adults like Plaintiffs outside his area of medical expertise. That the Medical Board’s Disciplinary Order requires the monitoring physician to be certified by the American Board of Medical Specialties (ABMS) does not provide any special evidence regarding Dr. Bernhoft’s qualifications or lack thereof, as Defendants seem to argue. Instead, it reflects the Medical Board’s practices in connection with disciplinary orders. Defendants are fully able to offer evidence or cross-examine Dr. Bernhoft about the significance of an ABMS certification and highlight that his specialty has not been recognized for such certification.
The Court also finds that, even if there were some marginally probative value to the disciplinary proceedings regarding Dr. Bernhoft’s activities outside the scope of his regular practice and qualifications, this is markedly outweighed by the prejudicial impact of the evidence and the likelihood that its introduction would lead to time-consuming testimony regarding issues that are wholly collateral to the claims and defenses in this case. Vaccinations and exemptions from vaccination requirements are highly controversial issues that are hotly debated in our politically charged society. As a result, there is a substantial probability that injecting this irrelevant issue into the trial will result in significant undue prejudice to Plaintiff. Further, admission of the Disciplinary Order would engender the unnecessary and wasteful presentation of evidence about, inter alia, the underlying circumstances leading to Dr. Bernhoft’s issuance of the letters, the apparent controversy about whether the children’s medical conditions justified the exemption letters, the process leading to entry of the Disciplinary Order, Dr. Bernhoft’s reasons for stipulating to its entry, and its impact on his practice, if any, including his forensic work at issue in this case.
For all these reasons, the Court grants the motion to exclude such evidence at trial under Evidence Code §§ 350 and 352.
Defendants’ Motion in Limine No. 1, seeking to exclude reference to any subsequent remedial work.
The Court has found no opposition filed by Plaintiff to this motion. In general, evidence of subsequent remedial work is not admissible to prove negligence or culpable conduct under Evidence Code § 1151 for public policy reasons. As Plaintiff has suggested no alternative reason for admitting such evidence, the Court grants the motion.
Defendants’ Motion in Limine No. 2, seeking to preclude admission of any documents or records not disclosed in discovery.
TENTATIVE: Denied, no specific documents or records identified or shown to have been withheld during discovery.
The Court cannot grant this MIL because it fails to identify any records or documents sought to be excluded. Nor has Plaintiff shown that specific evidence was sought and withheld during discovery. In general, a party who has responded to formal written discovery has no affirmative duty to supplement its responses when new information comes into its possession. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1318–1319, 1328.) Further, there is no evidence here that Plaintiffs engaged in a pattern of discovery abuse or intentionally withheld any documents or information from the discovery they provided. “[A]bsent unusual circumstances, such as repeated and egregious discovery abuses,” courts will not impose an evidentiary sanction for a failure to disclose unless there has been a “willful” failure to disclose. (Id., at p. 1327.)
Defendants’ Motion in Limine No. 3, seeking to exclude evidence of medical expenses beyond those actually incurred.
RULING: DENIED.
The Court lacks any information about what medical expenses were actually incurred by Plaintiffs and how the medical bills provided to Plaintiff and the amounts on those bills may be relevant to prove Plaintiffs’ damages in this case. The absence of specifics in the motion is exacerbated by the apparent lack of any opposition brief filed by Plaintiffs.
“Plaintiff has a two-step burden of proof in establishing damages for past medical services. The measure of recovery is well established: “[A] person injured by another's tortious conduct is entitled to recover the reasonable value of medical care and services reasonably required and attributable to the tort.” (Hanif [v. Housing Authority (1988) 200 Cal.App.3d 635,] 640, 246 Cal.Rptr. 192.) First, plaintiff must prove that she actually incurred the medical expenses and the amount of her liability for the expenses caps her potential recovery. Hanif, followed by Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861 (Nishihama) and Howell [v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541] . . . resolved this rather straightforward issue. Second, plaintiff must prove the reasonable value of the medical services but is entitled to no more than the expenses she actually incurred. ‘[A] plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less.’ (Howell, supra, 52 Cal.4th at p. 555, 129 Cal.Rptr.3d 325, 257 P.3d 1130.)” (Moore v. Mercer (2016) 4 Cal. App. 5th 424, 436-437.)
Even if the defendants in a particular case might be entitled to a reduction based on negotiated discounts available under MediCal or through private insurance, the actual amounts billed to plaintiffs and the bills reflecting those amounts may admissible at trial, “as they reflect[ ] on the nature and extent of plaintiffs' injuries and were therefore relevant to their assessment of an overall general damage award.” (Katiuzhinsky v. Perry (2007) 152 Cal. App. 4th 1288, 1296.) Further, even if the liens provided in exchange for medical services are sold to a third party, the amounts paid for the liens as receivables may be excluded at trial as irrelevant, so long as the plaintiffs remain fully liable for the full amount of the medical provider’s charges. (Id., at p. 1296; Moore v. Mercer, supra, at pp. 438-439.) Indeed, in the primary case relied on by Defendants for a ban on admission of all such medical bills, the Court of Appeal acknowledges that full medical bills may be admissible in a situation where the plaintiffs remained fully liable to their medical providers for the full amount billed. (Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308, 1328 fn. 10.)
Here, Defendant does not provide sufficient information for the Court to determine whether there is a specific basis for excluding Plaintiff’s medical bills, despite the general rule that they are admissible to show the reasonable value of the medical services provided. In the absence of such details, the Court cannot grant the motion in limine. The specific facts in a particular case determine what is or is not relevant because “evidence which might be admissible in one case might not be admissible in another.” (Id., at p. 442.)
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Defendants’ MIL #5 – seeking to exclude all opinions
not testified to at the depositions of Plaintiff’s experts.
RULING: Denied – no specific opinions or testified
identified or shown to have been withheld during depositions.
The legal standards applicable to
the proper scope of expert testimony are as follows. Under Code of Civil
Procedure (CCP) section 2034.210, subdivision (a), any party may demand the
exchange of expert witness information. In this exchange, a party may
provide either “[a] list setting forth the name and address of any person whose
expert opinion that party expects to offer in evidence at the trial” or “[a]
statement that the party does not presently intend to offer the testimony of
any expert witness.” (CCP § 2034.260, subds. (b)(1 & 2).) The statute
and the case law interpreting this statute “require that ‘the general substance
of the testimony which the witness is expected to give’ must be disclosed upon
proper request. As interpreted by the California courts, this requires a party
to ‘disclose the substance of the facts and the opinions to which the
expert will testify, either in his witness exchange list, or in his deposition,
or both.’” (Easterby v. Clark (2009) 1717 Cal. App. 4th
772, 778 [citations omitted, emphasis in original]; see also Kennemur v.
State of California (1982) 133 Cal. App. 3d 907, 919 [if an appropriate
statutory demand is made, the party is required to disclose the “general
substance” of the expected expert testimony, “either in his witness exchange
list or at his expert’s deposition, if the expert is asked,” including the
substance of the facts and the opinions to be offered at trial].)
A party is entitled to rely on a
disclaimer from the opposing party’s expert about testifying to any other
opinions than those stated “until such time” as there is a further disclosure
about the expert having reached additional opinions. (Kennemur, supra,
at p. 920.) When an expert states that he or she has no additional
opinions to offer at deposition, but then attempts to opine on new matters at
trial, these new opinions should be excluded because to do otherwise would be
“grossly unfair and prejudicial” to the other party who was deprived of the
opportunity to test the opinions in a deposition. (Jones v. Moore (2000)
80 Cal. App. 4th 557, 564-565; see also Bonds v. Roy (1999)
20 Cal. 4th 140, 147 (expert prohibited from opining on a “wholly
undisclosed subject area” when disclosure occurred in the middle of
trial].) Our Court of Appeal has summarized the rule by stating that “a
party’s expert may not offer testimony at trial that exceeds the scope of his
deposition testimony if the opposing party has no notice or expectation
that the expert will offer the new testimony, or if notice of the new
testimony comes at a time when deposing the expert is unreasonably
difficult.” (Easterby v. Clark, supra, at p. 780 [emphasis in
original].)
Given these standards, the Court
cannot issue a ruling that would have any force without knowing the specifics
of the situation. Such a ruling depends on the nature and timing of the
disclosure about the challenged expert testimony, whether the opposing party
made sufficient deposition inquiries to elicit any additional opinions,
including the challenged opinion(s), whether the “new” testimony goes beyond
the “general substance” of the opinions disclosed, and, if so, whether there is
sufficient time to conduct further deposition questioning before trial.
What is more, “[l]ike any other witness, the fact that an expert’s testimony at
trial differs from his deposition testimony goes to the expert’s credibility;
it does not, without some further evidence of prejudice to the opposing party,
serve as ground for exclusion.” (Id., at p. 781 [citations
omitted].) Lacking any of the necessary information, the Court denies the
motion for an overarching order, because it would serve no purpose as to any
specific testimony that might be offered at trial.
