Judge: Theresa M. Traber, Case: BC717200, Date: 2023-01-03 Tentative Ruling

Case Number: BC717200    Hearing Date: January 3, 2023    Dept: 47

BC717200 YOAV BOTACH ET AL VS NEWMARK OF SOUTHERN CALIFORNIA INC.

TENTATIVE RULING ON DEFENDANTS’ MOTION IN LIMINE # 6 – seeking an Order precluding Plaintiffs, their counsel or witnesses from calling any alleged treating physicians of now-deceased Plaintiff Yoav Botach (“Botach”) to testify as purported experts or provide any of their opinion testimony at trial.  

GRANTED.  Plaintiffs do not seek to offer expert testimony within the meaning of Code of Civil Procedure section 2034.260 from any physicians who provided treatment to Plaintiff Botach and, thus, did not “unreasonably fail” to designate them as non-retained expert witnesses under that statute.  Instead, Plaintiffs will offer only percipient witness testimony from these physicians which can include “the facts of the case, including the history given to the witness, the injuries

observed, the treatment given, the diagnosis made, and any prognosis which the witness may have already rendered in the course of his care and treatment of the plaintiff.”  (Brun v. Bailey (1994) 27 Cal.App.4th 641, 646.)  While Plaintiff Botach’s physicians can testify to his patient’s “chronic and acute medical conditions and pain,” and the diagnosis, treatment and prognosis previously developed in the course of providing medical care, Plaintiffs cannot offer any opinions from these witnesses about Plaintiff Botach’s vulnerability to undue influence by Defendants or his damages in this case.  That said, the percipient testimony offered by these doctors may be probative of such issues and, thus, may be relied on by Plaintiffs to advance his arguments at trial.