Tentative Rulings

Case Number: ****7107    Hearing Date: October 01, 2020    Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: October 1, 2020

Case Name: Locker v. Triumph Motorcycles (America), Limited, et al.

Case No.: ****7107

Matter: Motion to Compel Further Response

Moving Party: Plaintiff Connie Joan Locker

Responding Party: Defendant Baxter Cycle, Inc.

Tentative Ruling: The Motion to Compel is denied.

Plaintiff Locker seeks to compel a further response to her supplemental request for production no. 60. She contends Defendant Baxter Cycle, Inc. provided an incomplete response.

The Motion is denied because it is untimely (Code Civ. Proc. ; 2031.310(c)), such that the Court is without jurisdiction to render a ruling. Plaintiff admits the deadline to give notice for the Motion was June 11, 2020; however, the Notice of Motion was served on September 9, 2020. Plaintiff mentions she could not reserve a hearing date due to the COVID-19 pandemic. While certainly true, this fails to explain why notice of the substantive content of the Motion was not timely served. And in any case, the Court’s reservation system opened in July 2020, but the Notice of Motion was served in September 2020. Informal notice of one’s intent within an email does not suffice.

Case Number: ****7107    Hearing Date: June 26, 2020    Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: June 26, 2020

Case Name: Locker v. Triumph Motorcycles Limited, et al.

Case No.: ****7107

Motion: Motion to Strike Supplemental Expert Disclosure

Moving Party: Defendants Triumph Motorcycles, Limited and Triumph Motorcycles (America), LTD, Baxter Cycle, Inc., Randy Baxter, and Kenner Baxter

Tentative Ruling: The Motion to Strike is denied.

Plaintiff Connie Locker alleges that her husband Greig Stephen Locker’s (“GSL”) death relates to an accident caused by his defective motorcycle which was designed, manufactured, distributed, serviced, and supplied by Defendants. On September 22, 2017, Plaintiff filed the operative Complaint for (1) negligence and (2) products liability. Plaintiff pleads counts for strict liability, negligence, and breach of warranty for her products liability cause of action. The count for breach of warranty was summarily adjudicated on December 12, 2019.

Plaintiff alleges that GSL’s motorcycle crash against a curb caused a heel injury which resulted in a pulmonary embolism. On the other hand, Defendants assert that GSL likely died due to cardiovascular issues—specifically a myocardial infarction.

In December 2019 the parties exchanged expert witness information. Plaintiff designated Joseph G. Yates who was to “testify regarding accident reconstruction, the forces involved in the motorcycle accident that is the subject of this lawsuit and its effect on Plaintiff's deceased husband, Greig Locker, component failure analysis, motorcycle operations, design analysis, rider kinematics, and related issues.” Plaintiff also designated David J. Ross, M.D. who “is expected to testify as to . . . the nature and extent of pulmonary injuries, if any, their relation to this incident in question, pre-existing conditions and prior trauma, as well as offering opinions of the methodology and conclusions of other experts to the extent his or her work is within Dr. Ross' field of expertise.”

Amongst others, Defendants designated Laura Fuchs Dolan, MBA, an economist, Todd Frank, an accident reconstructionist, Stephen Tabak, M.D., doctor with board certifications in internal medicine and cardiovascular disease, Samuel D. White, a research engineer and accident reconstructionist, Stephen B. Garets, a motorcycle safety consultant, Daniel Ackroyd, a Triumph motorcycles service and repair, operation and maintenance consultant, Heather W. Brien, M.D., an arterial and venous surgery physician, and Jorge Castellanos, M.D., a physician with cardiology and interventional cardiology specialization.

On January 9, 2020, Plaintiff served a supplemental expert disclosure designating cardiologist Jeffrey F. Caren, M.D., vascular surgeon Willis Harcourt Wagner, M.D., and "Triumph service and repair" expert Adrian Packett.

Defendants now argue that Plaintiff’s supplemental disclosure should be stricken because Plaintiff should have expected such testimony would be necessary at trial when providing her initial disclosure. (Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1027.) Defendants provide that this is so because in July 2019 there was a physician deposition which indicated high suspicion of death as a result of myocardial infarction. They also argue that the supplemental disclosure relates to subject matters already assigned to Plaintiff’s designated experts.

Code Civ. Proc. ; 2034.260(a)-(b) states,

(a)All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. . . .

(b) The exchange of expert witness information shall include either of the following:

(1) A list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial.

(2) A statement that the party does not presently intend to offer the testimony of an expert witness.

Code Civ. Proc. ; 2034.280(a) provides, “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.”

Here, there is nothing improper about Plaintiff’s supplemental disclosure. First, the supplemental disclosure does not relate to a subject matter previously assigned to other experts. Yates was to testify as to liability from the perspective of an accident reconstructionist whereas Packett will provide rebuttal testimony about liability from the perspective of maintenance, service, and repair of the subject motorcycle. Similarly, while Ross will testify as to causation from the perspective of a pulmonologist, Caren and Warren are expected to provide rebuttal testimony on causation from the perspective of cardiovascular issues.

Further, Defendants’ argument that Plaintiff should have expected her supplemental testimony would be necessary for trial at the time of initial disclosure has no merit. For one thing, Plaintiff complied in good faith with the initial disclosure requirements by providing expert designations for the issues of causation and liability. There is no requirement to anticipate specific rebuttal witnesses. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 503 [“[T]he expert disclosure statute merely requires a party to designate an expert whose opinion the party ‘expects to offer in evidence at ... trial.’ (; 2034.210, subd. (a).) So, the mere fact that [Defendant] may have known, expected, or even anticipated that plaintiffs would designate damages experts does not, under the requirements set forth in the Code of Civil Procedure, place any responsibility on [Defendant] to anticipate what experts plaintiffs might designate and in anticipation of that designation designate rebuttal experts in its initial disclosure.”].)

Additionally, Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1027 is factually distinguishable as in that matter the defendant admitted to not providing an initial disclosure because it wanted to first review the plaintiff’s initial disclosure and then provide a strategized supplemental disclosure. That obviously does not comply with Code Civ. Proc. ; 2034.260 and is not the situation here. Fairfax’s “limited holding” has no application here. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 501.)

There is also no indication of prejudice. Trial in this matter is set for July 20, 2020, and there is a likelihood of a continuance due to the COVID-19 pandemic. There should also be ample time for expert depositions.

In sum, the Motion to Strike is denied.

Case Number: ****7107    Hearing Date: December 12, 2019    Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: December 12, 2019

Case Name: Locker v. Triumph Motorcycles Limited, et al.

Case No.: ****7107

Motion: Motion for Summary Judgment/Adjudication

Moving Party: Defendants Triumph Motorcycles, Limited and Triumph Motorcycles (America), LTD

Tentative Ruling: The Motion for Summary Adjudication is granted in part.

Plaintiff Connie Locker alleges that her husband died in a crash as a result of defects in his motorcycle. On September 22, 2017, Plaintiff filed the operative Complaint for (1) negligence and (2) products liability. Plaintiff pleads counts for strict liability, negligence, and breach of warranty for her products liability cause of action.

Defendants Triumph Motorcycles, Limited and Triumph Motorcycles (America), LTD move for summary judgment or, alternatively, summary adjudication of all counts. Defendants principally argue (1) there is no evidence a defect caused the subject accident; (2) Plaintiff’s product liability claim fails due to substantial alterations of the subject motorcycle; (3) there is no evidence supporting duty, causation, or breach for the purposes of Plaintiff’s negligence claim; and (4) there is no warranty which was breached.

The Motion is granted as to Plaintiff’s count for breach of express warranty because it is undisputed the subject motorcycle was not under warranty at the time of the subject crash. (Plaintiff’s Separate Statement of Undisputed Fact ¶ 54.)

The Motion is otherwise denied because Plaintiff points to evidence that (1) Defendants’ service manual for the subject motorcycle depicts improper routing of throttle cables (whether or not there are p-clips); (2) the subject motorcycle’s throttle cables were maintained in the configuration provided for by Defendants’ manual; (3) this cable routing could cause the throttle to function improperly if certain turning maneuvers were taken; (4) Plaintiff’s husband took these turning maneuvers such that his throttle stuck and caused a crash. (Yates Decl. ¶¶ 12-19.)[1]

In sum, the Motion for Summary Adjudication is granted as to Plaintiff’s count for breach of warranty. The Motion is otherwise denied.