Judge: William A. Crowfoot, Case: 20STCV27278, Date: 2022-08-03 Tentative Ruling

Case Number: 20STCV27278    Hearing Date: August 3, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On July 20, 2020, plaintiff Samantha Wilson (“Plaintiff”) filed this action against defendants Adalberto Oliveros, Eversoft, Inc., and HD Chem, Inc. (collectively, “Defendants”) arising from an automobile accident that occurred on September 20, 2018.  Defendants have retained Barry L. Ludwig, M.D., Paul E. Kaloostian, M.D., and Balaji Charlu, M.D. to evaluate Plaintiff’s injury claims by reviewing the case record and by conducting independent medical examinations (“IME”).  Plaintiff was examined by Dr. Ludwig, a neurologist, on April 13, 2022.  Plaintiff was examined by pain management physician Dr. Charlu on April 29, 2022.  Plaintiff was examined by Dr. Kaloostian, a neurosurgeon, on May 5, 2022.  Each of the physicians prepared a report following the IMEs and provided those reports to counsel. 

At issue in this motion are depositions notices served by Plaintiff demanding the depositions of these physicians.  Defendants argue that Plaintiff is seeking to conduct premature expert discovery and it would be unfair to require Defendants to produce their experts twice.  Defendants also argue that the subpoenas seek privileged and confidential information and documents. 

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records.  (Code Civ. Proc., § 2020.020.)  The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.  In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (Code Civ. Proc., § 1987.1, subd. (a).)  “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .”  (Code Civ. Proc., §2020.410, subd. (a).)

          After the Court granted an ex parte application to continue the trial date to May 25, 2023, Defendants have until April 5, 2023, to designate their experts.  Defendants argue that depositions of their retained consultants pursuant to a subpoena constitutes premature expert discovery.  An expert’s work generally becomes discoverable only once an expert is designated as a testifying expert. (Williamson v. Sup. Ct. (1978) 21 Cal.3d 829, 834-35.)

Defendants cite to County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1449, in which the court of appeal held that a party is not entitled to the current opinion of a treating physician who has not yet been designated as expert witness.  (Id. at pp. 1455-1456.)  However, this case is inapposite because it concerned the opinions of a physician who was accused of malpractice, and therefore a party to the case.  Defendants additionally argue that Plaintiff should not be permitted to depose these three physicians twice in this case, in the event that Defendants later designate them as experts.

Plaintiff relies on Code of Civil Procedure section 2032.610 to argue that Defendants cannot assert the work product doctrine to prevent the depositions of Dr. Ludwig, Dr. Charlu, and Dr. Kaloostian because they conducted IMEs of Plaintiff.  Where a party submits to a physical examination, “the protection for work product . . . is waived, both for the examiner’s writings and reports and to the taking of the examiner’s testimony.”  (Code Civ. Proc., § 2032.610, subd. (c).)  Plaintiff cites to Kennedy v. Superior Court (1998) 64 Cal.App.4th 674, in which the court of appeal held that a plaintiff is entitled to depose an examining physician even if the defendant eventually withdrew the physician as an expert and designed as a “consultant.”  The Kennedy court held that the statutory waiver of work product protection in section 2032, subdivision (h) (which has since been repealed and replaced with section 2032.610) overrode the general rule articulated in the case cited by Defendant, County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, which allows a party to “hide” their expert from deposition by withdrawing him and dubbing him a consultant to reinstate work product protection.  However, Kennedy is procedurally inapposite as the parties in that case had already exchanged expert witness designations.  Furthermore, it does not appear that Plaintiff plans to limit her deposition of these physicians to their examinations, based on the broad scope of documents demanded in the deposition notices, whereas the Kennedy court only permitted the plaintiff to depose the examining physician “with regard to the physical examination.”  (Kennedy, supra, 64 Cal.App.4th at p. 679.) 

The Court acknowledges that Plaintiff included in her responses to Defendant’s IME demands that Defendants “produce the examiner for deposition upon producing the report.”  (Opposition, Chanchikyan Decl., Exs. 2, 5, 8.)  This condition was stated in all 3 of the responses to Defendants’ IME demands, but no objection was raised by Defendants at the time.  Thus, the Court is hard-pressed to conclude that Defendants do not have to produce their examining physicians for deposition, at least with respect to the examinations and the associated report.  However, based on the deposition notices that are currently before it, the Court finds that these deposition subpoenas are improper. 

The Court also addresses Defendants’ purported concession to produce Dr. Ludwig, Dr. Charlu, and Dr. Kaloostian for their depositions during expert discovery regardless of whether they are formally designated as retained experts.  This way, Defendants argue, the doctors only need to be produced once.  However, according to Kennedy, this “concession” is meaningless as Plaintiff is already entitled to depose these examining physicians whether or not they are designated as experts.  Also, this proposal assumes that Plaintiff will need, or want, to conduct a second deposition.  If Plaintiff desires to depose these physicians after they have been designated as testifying experts, Plaintiff may seek leave of court.

Given the sweeping nature of Plaintiff’s deposition notices, and no clear admission that Plaintiff is only seeking to question these examining physicians about the opinions arising from the examinations they conducted, the Court GRANTS Defendants’ motion to quash. 

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.