Judge Thomas D. Long, Case 19STCV34039 2022-10-19 Tentative Ruling

Plaintiffs Robert Freedman and Joan Freedman filed this action against defendants David Brian Golden, M.D., Nicole Kristen Williams, M.D., and Cedars-Sinai Medical Center for medical malpractice and loss of consortium arising out of Defendants’ care and treatment of Robert Freedman (“Robert” or “Plaintiff”) in connection with total knee arthroplasty surgery.

At this time, Plaintiff moves for an order overruling Defendant Nicole Kristen Williams, M.D.’s (“Defendant”) objection to Plaintiff’s designation of experts, or alternatively, to augment his expert witness list to add two retained expert witnesses, Justin Brown, M.D. (“Dr. Brown”) and Alan R. Hargens, Ph.D. (“Dr. Hargens”). Defendant opposes the motion, and Plaintiff filed a reply.

Plaintiff provides that Defendant served her designation of expert witnesses on April 27, 2022, identifying Peter Kurzweil, M.D. (“Kurzweil”) as her retained expert witness. Plaintiff provides that on May 12, 2022, the parties filed a stipulation to continue the then trial date of June 16, 2022, which specified that only discovery and motion cutoff dates as to expert discovery would be based on the new trial date. On August 5, 2022, an ex parte application to continue the trial date was granted, and the trial date was continued to November 2, 2022. Plaintiff states that he then served a new designation of experts on August 15, 2022, based on the continuance. Further, Plaintiff contends that after taking Dr. Kurzweil’s deposition on August 26, 2022, Plaintiff realized the need to retain an expert to explain permanent damage and the effect of Plaintiff having surgical repair done on “post-op Day 2 versus post-op Day 1.” (Mot. at p. 7:11-13.) On September 13, 2022, Plaintiff served another expert witness list adding Dr. Brown and Dr. Hargens, and on September 16, 2022, Defendant served an objection in response to Plaintiff’s expert witness list. Plaintiff contends that the trial continuance resetting all expert discovery dates allowed the parties to serve a new demand and new exchange of expert witness information. Alternatively, Plaintiff contends he should be permitted to augment his expert witness list to add Dr. Brown and Dr. Hargens.

In opposition, Defendant asserts the parties’ simultaneous exchange of expert designations occurred on April 27, 2022, and that at no time did the parties agree to replace or re-do their designations. Defendant contends that Plaintiff’s tactics show that Plaintiff wants to replace the causation experts against Defendant and change his causation theory. Defendant contends that the depositions of Plaintiff’s previously deposed experts already addressed the issues that Plaintiff proclaims the two new experts will address. Defendant argues that Plaintiff fails to establish the requested relief is warranted, and that Plaintiff did not have the right to disregard the prior simultaneous exchange.

In reply, Plaintiff again argues the trial continuance allowed Plaintiff to serve a new demand and exchange of expert witness information, and that Plaintiff was not aware of the need to designation two additional retained experts until after Dr. Kurzweil’s deposition. Plaintiff further contends that Plaintiff’s previously retained experts have not testified about the relevant issues concerning Plaintiff’s injuries, and that there is no prejudice to Defendant.

Parties may arrange a date to exchange expert witness information, and the failure to abide by the requirements for doing so once a demand for exchange is made may result in exclusion of the expert. (CCP §§ 2034.210, 2034.300.) “Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. A party shall make this demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” (CCP § 2034.220.) “The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.” (CCP § 2034.230(b).) Parties may offer supplemental experts not listed in the initial exchange under the following conditions:

Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.

CCP § 2034.280 permits a supplemental designation responsive to the opposing party's designation if and only if the supplementing party has not previously retained an expert on the subject(s) in question. There are, however, limitations on the use and, more importantly, abuse of the supplemental expert witness designation provisions of section 2034.280. The legislatively preferred method of expert witness exchange is simultaneous and mutual. (CCP § 2034.210.) If the parties do not comply with the requirements of a mutual and simultaneous exchange of experts, the Court has the authority to strike any non-conforming expert witness designation in whole or part. (CCP § 2034.300; see Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 202 Cal.Rptr.3d 84; Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1021, 41 Cal.Rptr.3d 850.)

“Section 2034 requires a ‘simultaneous' exchange of information, in which each side must either identify any expert witnesses it expects to call at trial, or state that it does not intend to rely upon expert testimony. When it comes to issues that both sides anticipate will be disputed at trial, a party cannot merely ‘reserve its right’ to designate experts in the initial exchange, wait and see what experts are designated by the opposition, and then name its experts only as purported ‘rebuttal’ witnesses.” (Fairfax v. Lords, supra, 138 Cal.App.4th at p. 1021, 41 Cal.Rptr.3d 850.)

Here, the parties simultaneously exchanged expert witness information on April 27, 2022. (Mot. Exh. 7; Opp. Exh. A.) At that time, trial in this action was set for June 16, 2022. Pursuant to a stipulation signed by the parties, on May 12, 2002, this trial date was continued to September 1, 2022. The stipulation provided that all discovery and motion cutoff dates as to expert discovery only would be based on the new trial date. Thereafter, on August 5, 2022, an ex parte application to continue the trial date was granted and continued the September 1, 2022 trial date to November 2, 2022. This order was silent as to the continuance of any discovery or motion cutoff dates. (Min. Order, Aug. 5, 2022.) Further, on October 12, 2022, an ex parte application to continue trial was granted and continued the November 2, 2022 trial date to May 5, 2023. Based on the agreement of the parties, only the expert deposition cutoff was to be based on the new trial date. (Min. Order, Oct. 12, 2022.)

While Plaintiff contends that the continuance granted August 5, 2022 allowed Plaintiff to serve a new demand and new exchange of expert witness information, Plaintiff cites no authority holding that a continuance allows a party to do such after the parties have already simultaneously exchanged expert witness information. Moreover, the August 5, 2022 order was silent as to extending the cutoff dates for any discovery, including expert discovery, in this matter. CCP §§ 2034.220 and 2034.230 contemplate the demand and exchange of expert witness information being timed in relationship to the “initial trial date.” There is no mention of permitting parties to designate new expert witnesses based on a trial continuance, and Plaintiff cites no authority to support such a proposition.

Therefore, the proper relief for Plaintiff to seek is to augment his expert witness list.

CCP § 2034.610 governs motions to augment expert witness lists. A party who has engaged in a timely exchange of expert witness information may move to add the name and address of a subsequently retained witness or to amend the statement of the testimony a previously designated expert is expected to give. The motion must be accompanied by a declaration showing a reasonable and good faith attempt at an informal resolution of each issue presented. (CCP §2034.610.)

The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(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.

Notably, granting or denial of relief in these cases lies within the court's sound discretion, and is subject to appellate review only for abuse of discretion. (Bonds v. Roy (1999) 20 Cal.4th 140, 149.)

In this case, Plaintiff asserts that he will stipulate that Dr. Brown’s and Dr. Hargens’s depositions may be noticed and taken immediately, and that there will be sufficient time to schedule the experts’ depositions. Plaintiff contends that Defendant has not overly relied on Plaintiff’s initial expert witness list because Defendant’s experts have not yet been deposed, and Plaintiff has agreed to have the depositions of his experts taken prior to Defendant’s experts’ depositions. Further, Plaintiff contends he would not have known to call Dr. Brown and Dr. Hargens because prior to Dr. Kurzweil’s deposition, there was no discussion in this case regarding the importance of Plaintiff receiving surgical repair on post-op Day 1 versus post-op Day 2 in terms of the effect on the permanence of his injury. Moreover, Plaintiff provides that the failure to designate Dr. Brown and Dr. Hargens was based on Plaintiff’s counsel’s mistake, inadvertence and excusable neglect to realize the significance of these issues until now.

Defendant, in opposition, contends that Plaintiff’s previously retained experts already addressed the issues concerning the post-op surgery and causation. Defendant argues that Plaintiff’s counsel demonstrates a lack of credibility and that Plaintiff failed to comply with CCP § 2034.610.

However, Plaintiff avers that his previous experts did not testify about the permanence or reversibility of Plaintiff’s injury had the relevant surgery been initiated on post-op Day 1 instead of Day 2 post-op. Plaintiff attests that his new experts will testify that had Defendant acted earlier, Plaintiff would have achieved a full or almost full reversal of his functional loss. Plaintiff asserts there is no change to his causation theory and the expert will not testify about the same topics.

It is important to recognize that trial in this matter is now set for May 5, 2023, and Defendant does not identify any prejudice she will suffer if this motion is granted. Further, Plaintiff agrees to make Dr. Brown and Dr. Hargens immediately available for deposition, and Plaintiff agrees that Plaintiff’s expert may be deposed prior to Plaintiff deposing Defendant’s experts. Plaintiff complied with his initial disclosure obligations, and while Plaintiff’s argument that the deadline for expert designation were extended is not well taken, there is no evidence that Plaintiff engaged in gamesmanship in failing to designate Dr. Brown or Dr. Hargens as experts. Furthermore, even if Plaintiff had realized the need prior to Dr. Kurzweil’s deposition, Plaintiff’s counsel declares that the failure to earlier designate Dr. Brown and Dr. Hargens was because of Plaintiff’s counsel mistake, inadvertence, and excusable neglect. (Mot. Glickman ¶¶ 14-15.) Plaintiff’s counsel explains that prior to a different defendant settling in this action, the focus of the case was not on the outcome of the surgery on Day 1 versus Day 2, and upon the deposition of Dr. Kurzweil, Plaintiff’s counsel realized additional expert testimony was needed to establish that surgery on Day 1 would have resulted in a substantially different outcome.

Based on the foregoing, Plaintiff’s motion for leave to augment his expert witness list designation is granted. Plaintiff is to make Dr. Brown and Dr. Hargens immediately available for deposition. Defendant shall have twenty days to designate additional expert witnesses or to elicit additional opinions from those previously designated.

Hon. Audra Mori

Judge of the Superior Court