Judge: William A. Crowfoot, Case: 19STCV01935, Date: 2022-12-23 Tentative Ruling

Case Number: 19STCV01935    Hearing Date: December 23, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On January 18, 2019, plaintiff Leah Tayahua (“Plaintiff”) filed this action against defendants Rehab Solutions, LLC (“Rehab Solutions”) and Doe Installer.  Plaintiff alleges that on April 18, 2017, she sustained injuries from a negligently installed standing desk.  On July 30, 2019, Plaintiff named Louie Byrd (“Byrd”) as Doe 1

Trial is currently scheduled for February 27, 2023.  On September 2, 2022, Plaintiff filed a motion for leave to augment her expert witness designation by adding Joshua Prager, M.D. (“Dr. Prager”).  Dr. Prager was supposed to offer testimony regarding Plaintiff’s recent diagnosis of Complex Regional Pain Syndrome (“CRPS”).  This diagnosis occurred on August 25, 2022.  On October 4, 2022, the Court denied Plaintiff’s motion. 

On November 10, 2022, Plaintiff filed this renewed motion for an order granting leave to amend her expert witness designation

Again, Byrd and Rehab Solutions both oppose Plaintiff’s motion. 

II.          LEGAL STANDARD

On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to (1) augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained; and/or (2) amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.  (Code Civ. Proc., § 2034.610, subd. (a).)  This motion shall be made a sufficient time in advance to permit the deposition of any expert to whom the motion relates to be taken before the discovery cut-off, unless exceptional circumstances exist.  (Code Civ. Proc., § 2034.610, subd. (b).)  The motion shall be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2034.610, subd. (c).)

The court shall grant leave to augment or amend an expert witness list 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.

(c) The court has determined either of the following:

(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.

(Code of Civ. Proc. § 2034.620.)

III.        DISCUSSION

The parties’ initial expert witness disclosure occurred on July 6, 2022.  As in her earlier motion, Plaintiff requests leave to add Dr. Prager to her expert witness designation on the grounds that she was recently diagnosed with CRPS on August 25, 2022.  This time, Plaintiff’s counsel claims that Plaintiff could not have designated Dr. Prager earlier or determined the need to designate a specialist earlier because she was forced to treat within the workers’ compensation system and the physicians are not CRPS or pain specialists and could not evaluate her accordingly.  (Guevara Decl., ¶ 17.)  Plaintiff again states that it was only when she underwent a “follow-up evaluation” with her retained orthopedic surgeon, Dr. Kreitenberg, on August 15, 2022, that she was recommended to undergo an evaluation for CRPS.  (Guevara Decl., ¶¶ 10, 17.) 

This newly provided explanation is unpersuasive. Plaintiff was examined by Dr. Kreitenberg on February 5, 2021, and another doctor, referred to only as Dr. Niska, recommended that she see a pain specialist on April 6, 2021.  (Reply, 2:2-6.)  Plaintiff’s workers compensation claim was resolved 8 weeks later around June 2021.  (Smith Decl., Ex. F.)  Between June 2021 and the expert witness exchange on July 6, 2022, Plaintiff could have: (1) been examined by Dr. Kreitenberg again and referred to a CRPS specialist (as she was on August 15, 2022) and/or (2) seen a pain specialist of her choice (as Dr. Niska requested on April 6, 2021) to receive a diagnosis of CRPS.  Plaintiff does not identify any new symptom that arose in July or August 2022 after the expert witness exchange occurred which caused the need for a new evaluation and diagnosis.  Therefore, Plaintiff again does not demonstrate that the failure to designate a CRPS expert was the result of “mistake, inadvertence, surprise, or excusable neglect” as required by Code of Civil Procedure section 2034.620. 

IV.          CONCLUSION

Accordingly, Plaintiff’s motion is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.