On 05/31/2016 JEFF POMARICO filed a Personal Injury - Medical Malpractice lawsuit against CEDARS SINAI MEDICAL CENTER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DOES 1 THROUGH 20
CEDARS SINAI MEDICAL CENTER
ZUMSTEG ZACHARY S. M.D.
VARIAN MEDICAL SYSTEMS INC.
CEDARS-SINAI MEDICAL CENTER
HANEY STEVEN H. ESQ.
HANEY STEVEN H.
GONZALEZ MICHAEL DALE
GORDON STUART M
8/3/2018: DEFENDANT VARTAN MEDICAL SYSTEMS INC.'S EX PARTE APPLICATION TO APPROVE THE PARTIES STIPULATION TO CONTINUE THE TRIAL DATE
3/4/2019: Motion in Limine
3/15/2019: Minute Order
7/6/2016: Other -
8/1/2017: PROOF OF SERVICE SUMMONS ON 1ST. AMENDED
8/18/2017: NOTICE OF HEARING ON DEFENDANT VARIAN MEDICAL SYSTEMS, INC.'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT
9/13/2017: REPLY BRIEF IN SUPPORT OF DEFENDANT VARIAN MEDICAL SYSTEMS, INC.'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT
9/14/2017: (1) NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT CEDARS SINAI MEDICAL CENTER TO PROVIDE RESPONSES TO SPECIAL INTERROGATORIES, SET NO. THREE (FURTHER RESPONSES THAT ARE NOT MERE OBJECTIONS) ANS; ETC
9/14/2017: SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL RESPONSES BY DEFENDANT CEDARS-SINAI MEDICAL CENTER TO SPECIAL INTERROGATORIES, SET NO. THREE, AND; ETC.
9/26/2017: NOTICE OF ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT
9/26/2017: Minute Order
Reply ( to Opposition to Motion in Limine No 10); Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
Reply ( to Opposition to Motion in Limine No 1); Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
Reply ( to Opposition to Motion in Limine No 2); Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
Reply ( to Opposition to Motion in Limine No 5); Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
Reply ( to Opposition to Motion in Limine No 4); Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
Reply ( to Opposition to Motion in Limine No 9); Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
Reply ( to Opposition to Motion in Limine No 6); Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
Reply ( to Opposition to Motion in Limine No 8); Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
at 09:30 AM in Department 78; Jury Trial - Not Held - Continued - Party's MotionRead MoreRead Less
at 08:30 AM in Department 78; Post-Mediation Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
Demand for Jury TrialRead MoreRead Less
Demand for Jury Trial; Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
Answer; Filed by Cedars-Sinai Medical Center (Defendant); Zachary S. Zumsteg, M.D. (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Jeff Pomarico (Plaintiff)Read MoreRead Less
Proof of Service (not Summons and Complaint)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
COMPLAINT FOR: PROFESSIONAL MEDICAL NEGLIGENCERead MoreRead Less
Complaint; Filed by Jeff Pomarico (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC622166 Hearing Date: February 25, 2020 Dept: 78
,CEDARS-SINAI MEDIcal centar, et al.;
Case No.: BC622166
Hearing Date: February 25, 2020
MOTIONS IN LIMINE.
This is an action for medical malpractice. The fact facts relating to this action have been set forth in prior rulings. The purpose of this ruling is to address the motions in limine that have been filed by the parties.
motions in limine
D1 — TO LIMIT PLAINTIFF’S COUNSEL’S CROSS-EXAMINATION OF DEFENSE EXPERTS TO COMMUNITY STANDARD OF CARE
When a medical expert testifies in a medical malpractice action, there is no question that the relevant test is whether the medical care provided to the plaintiff did or did not meet the medical standard of care. That does not mean, however, that cross-examination is limited in the manner that Cedars-Sinai is requesting. Just as an example, if a doctor testified that in his opinion the defendant did not breach the standard of care by failing to take a certain step, but in 2000 operations the witness himself had always taken the step, this clearly would be relevant because it raises a question of whether the witness’s testimony on standard of care is credible. Testimony of the experts will need to be evaluated at the time that testimony is offered but this motion is DENIED.
D-2 — LIMITING PLAINTIFFS EXPERT WITNESSES TO OPINION TESTIMONY PROVIDED AT DEPOSITIONS
This motion is premature in the appropriateness of expert opinions will upon as they arise and in their context. The motion does raise issues under Kennemur v. State (1982) 133 Cal. App. 3rd 907 which are worth discussing. If a party has a Kennemur challenge, counsel for that party has an obligation to identify for the Court the pages of the expert’s deposition in which a “close out” question was asked. If counsel for that party did in fact ask the “close out” question, counsel for the opposing party must show the court where in the witness’ deposition or designation fair notice was given that the witness would express that opinion. To avoid delay each party must be prepared to provide this information to the court at the time the issues is raised. This means that before making the objection, the objecting party should have a page and line reference to give to Court. It also means that for each opinion expressed by an expert called by the party, that party must have a page and line reference to the expert’s deposition in which that opinion was provided.
D3 — TO PRECLUDE REFERENCE TO INSURANCE COVERAGE OR FINANCIAL CONDITION
This motion it is not opposed and is GRANTED.
D4 — TO PRECLUDE EXPERT TESTIMONY FROM NON—DESIGNATED EXPERT WITNESSES
This motion is addressed to potential testimony by treating physicians. Dozier v. Shapiro (2011) 199 Cal. App 4th 1509, 1520 sets forth the applicable standard. To the extent the physician is testifying based upon facts he or she learned or observations he or she made during treatment of the plaintiff, that testimony is permissible including testimony relating to the standard of care without an expert declaration being required. To the extent the physician bases his or her opinion on additional information supplied by counsel, however, that testimony cannot be admitted unless the fact that it would be offered and the substance of the opinion was disclosed in an expert witness declaration filed by the party calling the physician.
D5-- TO PRECLUDE ANY REFERENCE TO CIVIL CODE §3333.2 OR CODE OF CIVIL PROCEDURE §667.7
This motion is not opposed and is GRANTED.
D6 — FOR ORDER PRECLUDING PLAINTIFF FROM INTRODUCING ANY WITNESS, EVIDENCE OR CONTENTIONS NOT DISCLOSED IN RESPONSES TO DISCOVERY
This motion is overbroad and is DENIED without prejudice to either party.
D7 — REGARDING PAYMENT OF FUTURE DAMAGES AND STAY OF ENTRY OF JUDGMENT UNTIL PAYMENT SCHEDULE HAS BEEN ORDERED PURSUANT TO CODE OF CIVIL PROCEDURE §667.7
This motion is unopposed and is granted.
D8-- TO EXCLUDE MEDICAL TESTIMONY FROM PLAINTIFF OR OTHER LAY WITNESSES
Plaintiff is not a medical expert and cannot testify to what the standard of care is or whether defendants met that standard of care. Plaintiff and other lay witnesses are competent to provide testimony on the effect of the treatment on plaintiff, on statements made to plaintiff by defendants and a number of related areas. This motion is made without context and court will rule on the issues as they arise.
D9-- RE MEDICAL TREATISES, TEXTBOOKS, ARTICLES AND/OR REFERENCES
The Court will follow Evidence Code §721 (b) which states the law on this subject.
D10-- RE OTHER LAWSUITS, SETTLEMENTS, OR CALIFORNIA MEDICAL BOARD RELATED MATTERS
Neither party has provided the Court with any specifics as to what matters defendants are seeking to question defendants or why any such specific matters would be relevant in this action. For the guidance of the parties, the court does not as a general rule believe “character” evidence would be admissible in a case such as this or that investigations in administrative proceedings could be relevant or could overcome, a hearsay objection. For the present, plaintiff is ordered not to make any reference to or ask any questions on such matters without disclosing to the Court and defendants’ counsel the subject matter plaintiff intends to address so that defendants’ counsel can be heard and the Court can make a ruling on the admissibility of this information.
DATED: February 24, 2020
Hon. Robert S. Draper
Superior Court Judge
Case Number: BC622166 Hearing Date: October 24, 2019 Dept: 78
cedars sinai medical center, et al.;
October 24, 2019
[TENTATIVE] RULING RE:
PLAINTIFF JEFF POMARICO’S MOTION FOR SANCTIONS IN THE AMOUNT OF $9,230 AGAINST DEFENDANTS CEDARS SINAI MEDICAL CENTER, ZACHARY ZUMSTEG, MD AND THEIR COUNSEL OF RECORD, MICHAEL D. GONZALEZ AND THE LAW OFFICE OF MICHAEL d. gONZALEZ
Plaintiff Jeff Pomarico’s Motion for Sanctions against Defendants Cedars Sinai Medical Center, Zachary Zumsteg, MD and their Counsel of Record, Michael D. Gonzalez and the Law Office of Michael D. Gonzalez is DENIED.
This is an action for medical negligence and products liability. Plaintiff Jeff Pomarico alleges that he has throat cancer. (FAC ¶ 7.) On November 12, 2015, he was admitted to Defendant Cedars Sinai Medical Center for radiation therapy. (Complaint ¶ 7.) Defendant Dr. Zachary S. Zumsteg performed and supervised the radiation therapy. (Complaint ¶ 7.)
User error occurred, in that insufficient radiation was applied to one area, and “too much intensity” was also applied, causing several areas of tissue to be damaged such that they cannot be subject to radiation treatment in the future. (Complaint ¶ 11.) This error has caused Pomarico to have excessive burning pain and irregular voice changes. (Complaint ¶ 12.)
Defendant Varian Medical Systems (“Varian”) manufactured the medical equipment that was used to administer the therapy. (Complaint ¶ 16.) Pomarico alleges that the machine was defectively manufactured (Complaint ¶ 17), that Varian failed to investigate risks associated with use of the machine or to warn of those risks (Complaint ¶ 24), and that these failures caused Pomarico’s injury. (Complaint ¶¶ 20, 26.)
Pomarico filed his original Complaint on May 31, 2016, alleging only medical negligence against Cedars Sinai and Zumsteg. He filed a First Amended Complaint (“FAC”) on July 19, 2017, adding Varian as a defendant and alleging four causes of action:
Professional Medical Negligence
Strict Liability – Manufacturing Defect
Strict Liability — Failure to Warn
Negligence — Manufacturing Defect
This personal injury case was transferred to an independent calendar court on September 20, 2017. On September 26, 2017, the case was transferred to this department.
This Court on January 11, 2018, overruled Varian’s Demurrer to the FAC.
On September 26, 2019, Pomarico filed the instant Motion for Sanctions against Defendants Cedars Sinai Medical Center, Zachary Zumsteg, MD and their Counsel of Record, Michael D. Gonzalez and the Law Office of Michael D. Gonzalez.
MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 2025.430
Code of Civil Procedure section 2025.430 directs the trial court to “impose a monetary sanction under Chapter 7” of the Civil Discovery Act when “the party giving notice of a deposition fails to attend or proceed with it ....” An exception exists if the court finds the offending party “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Civ. Proc. § 2025.430.)
Here, Pomarico seeks sanctions against Defendants Cedars Sinai and Zumsteg, along with their counsel of record, Michael D. Gonzalez and the Law Office of Michael D. Gonzalez, in the amount of $9,230.00 for cancelling a deposition the day before the deposition was scheduled to take place. (Motion at pp. 3-4.) Defendants argue in opposition that the deposition was cancelled in the morning the day prior to the scheduled date because Defendants’ counsel was engaged in trial in another matter that unexpectedly extended longer than initially anticipated: the verdict was not going to be rendered until the afternoon of the date of the deposition. (Opposition at p. 3.) Defendants contend that Defendants’ counsel, Michael Gonzalez was the only attorney in his firm able to take the deposition because there were no other attorneys available or prepared to cover the deposition in his absence. (Opposition at p. 3.) Pomarico argues that his expert, an oncologist, set aside a four-hour block of time for the deposition during which time he was unable to schedule patients, and thus lost income of $2,000 because his hourly rate is $500 per hour, in addition to the cost of Pomarico’s counsel of preparing for the deposition and drafting the instant motion. (Motion at pp. 6-8.) Defendants argue that the rescheduling the deposition was made with substantial justification and not with “ill will or intent to pervert or misuse the discovery process.” (Opposition at p. 6.)
Neither party cites any case authority interpreting the “substantial justification” exception under section 2025.430, and the Court has found none. However, in other cases involving monetary sanctions, California courts have held that “substantial justification” means “clearly reasonable” or “justified to a degree that could satisfy a reasonable person.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.)
While it would have been polite and professional for Defendants’ counsel to alert Pomarico’s counsel to the possibility that his trial may not end in time for the deposition, Defendants have demonstrated that Gonzalez provided notice of rescheduling as early as possible when he realized that the trial would run long; the fact that the verdict was rendered on the same day as the originally-scheduled deposition indicates that Gonzalez was not unreasonable in expecting that the trial would end a single day earlier. There is no evidence that Gonzalez rescheduled the deposition in bad faith, nor has he sought to reschedule other similar depositions or deadlines at the last minute. The Court finds that Gonzalez’ rescheduling of the deposition was reasonable and it would be unjust to impose Pomarico’s significant sanctions due to misjudging the length of a single event, particularly in light of Gonzalez’s willingness to accommodate Pomarico’s previous requests to cancel scheduled depositions. (Gonzalez Decl. ¶ 3.)
Accordingly, the Court finds that sanctions are inappropriate here. The Motion for Sanctions is DENIED.
Plaintiff to provide notice.
DATED: October 24, 2019 ________________________________
Hon. Robert S. Draper
Judge of the Superior Court
 Deposition scheduled to take place on August 30, 2019; deposition cancelled the morning of August 29, 2019.
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