Judge: William A. Crowfoot, Case: 19STCV19924, Date: 2022-10-04 Tentative Ruling

Case Number: 19STCV19924    Hearing Date: October 4, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On June 7, 2019, plaintiff Fatima Alvarez (“Plaintiff”) filed this action against defendant Live Nation Worldwide, Inc. (“Defendant”).  Plaintiff alleges that on August 19, 2017, she slipped and fell on a liquid substance on the floor of the Hollywood Palladium, which is Defendant’s property. 

Currently before the Court are two motions.  The first motion was filed on September 2, 2022, and concerns Plaintiff’s desire for the Court to strike Defendant’s expert, Nadiv Y. Samimi, M.D. (“Dr. Samimi”) from Defendant’s supplemental expert witness designation.  Second, on September 7, 2022, Defendant filed this motion for an order reopening discovery and compelling Plaintiff to submit to a second medical examination by Dr. Samimi. 

II.          DISCUSSION

A.   Strike Supplemental Expert Witness Designation

“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.”  (Code Civ. Proc., § 2034.280, subd. (a).)  “This supplemental list shall be accompanied by an expert witness declaration under subdivision (c) of Section 2034.260 concerning those additional experts, and by all discoverable reports and writings, if any, made by those additional experts.”  (Id., subd. (b).)  “The party shall also make those experts available immediately for a deposition under Article 3 . . . even though the time limit for discovery . . .  has expired.”  (Id., subd. (c).)

Plaintiff moves to strike Defendant’s supplemental designation of Dr. Samimi.  Plaintiff argues Dr. Samimi’s testimony is duplicative of Defendant’s other expert, Eric Millstein, M.D. (“Dr. Millstein”).  Plaintiff claims that Dr. Millstein examined Plaintiff, prepared a report, and was deposed; he already opined on Plaintiff’s CRPS issue, and therefore Dr. Samimi’s testimony is unnecessary and Defendant should be precluded from swapping its experts.  Plaintiff also argues that Defendant has been long aware of Plaintiff’s CRPS claim and attaches copies of excerpts from Plaintiff’s medical records which include assessments and indications of CRPS. 

In opposition, Defendant argues that Plaintiff has not been treated by a CRPS specialist and has been treating with an orthopedic surgeon, and therefore, its expert, Dr. Millstein, is an orthopedic surgeon.  Defendant states that Plaintiff’s expert, Laura Edinger, M.D. (“Dr. Edinger”), is a neurologist and CRPS expert and that Defendant was unaware that Dr. Edinger had evaluated Plaintiff until it deposed Dr. Edinger on July 18, 2022.  Defendant argues there was no gamesmanship in supplementing its expert witness designations and there is no prejudice to Plaintiff.  Defendant argues that the case relied on by Plaintiff, Fairfax v. Lords (2006) 138 Cal.App.4th 1019, is distinguishable because the defendant doctor admitted that he purposefully retained no witnesses and waited to see which experts the plaintiff would designate as a matter of strategy.  (Fairfax, 138 Cal.App.4th at p. 1026 [defendant argued tardy designation was “prudent litigation defense”].)  Defendant argues, in contrast, that it participated in the simultaneous expert witness exchange and designated an orthopedic surgeon (Dr. Millstein).  Instead, it now wishes to designate a CRPS specialist (Dr. Samimi) after learning that Plaintiff has retained a CRPS specialist. 

Defendant concedes it knew that Plaintiff was specifically being treated for CRPS by an orthopedic surgeon, Bal Rajagopalan, M.D. (referred to by the parties as, “Dr. Raj”).  Therefore, even if Dr. Raj died shortly before the expert witness disclosure deadline, Defendant should have expected Plaintiff to designate someone who could provide expert testimony on her CRPS diagnosis and treatment.  Defendant chose Dr. Millstein to provide an opinion on Plaintiff’s injuries and CRPS diagnosis.  The fact that Dr. Edinger is a neurologist specializing in CRPS, and not an orthopedic surgeon as previously expected, does not change the nature of Plaintiff’s injuries.  As the Fairfax court stated, “[p]arties presumably designate the expert they believe best qualified to opine on the [disputed issues in the case].”  (Fairfax, supra, 138 Cal.App.4th at p. 1027.)   Defendant “had every reason to anticipate a designation” on Plaintiff’s CRPS and had “a corresponding obligation to designate whatever expert he expected to have testify on the issue at the same time.”  (Ibid.)  Accordingly, Plaintiff’s motion to strike is GRANTED. 

B.   Reopen Discovery and Compel Second Medical Examination

On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.  This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.  (Code Civ. Proc., § 2024.050, subd. (a).)   The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”  (Code Civ. Proc., § 2024.050, subd. (b).)

Under Code of Civil Procedure section 2032.220, “any defendant may demand one physical examination of the plaintiff.”  A second physical examination is only allowed by leave of court and for good cause shown. 

Defendant’s motion to reopen discovery is predicated on needing Dr. Samimi, its CRPS specialist, to perform an evaluation of Plaintiff.  This, in turn, depends on Defendant’s ability to designate Dr. Samimi as an expert.  As discussed above, the Court strikes Defendant’s designation of Dr. Samimi as a supplemental expert witness.  Accordingly, there is no good cause shown for a second IME and no good cause to reopen discovery. 

III.        CONCLUSION

Plaintiff’s motion to strike is GRANTED.

Defendant’s motion to reopen discovery 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.