GLADYS E DUQUE VS DAVID S ROSENBERG MD

Tentative Rulings

Case Number: BC668653    Hearing Date: March 11, 2020    Dept: 27

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO AUGMENT EXPERT WITNESS DESIGNATION

On July 17, 2017, plaintiff Gladys E. Duque (“Plaintiff”) filed this medical malpractice action against defendant David S. Rosenberg, M.D. (“Defendant”). On July 16, 2019, Defendant sent a demand for exchange of expert witness information. On August 12, 2019, the parties agreed to an informal expert exchange on August 19, 2019 and a final exchange date fifty days before trial. Also on August 19, 2019, the Court granted an ex parte application to continue the trial date from October 4, 2019 to November 20, 2019, based on the parties’ agreement so that the parties could complete expert discovery. On August 19, 2019, Plaintiff designated Steven Burres, M.D., and Defendant designated Athleo Cambre, M.D. On October 1, 2019, the parties conducted their final exchange of expert information, with Plaintiff again designating Steven Burres and Defendant designating Athleo Cambre. Defendant had previously deposed Burres, who had submitted a declaration in connection with a summary judgment motion.

On October 23, 2019, the parties again requested the Court continue the trial, from November 20, 2019 to March 17, 2020 to complete expert discovery. The Court granted the continuance. On November 1, 2019, Plaintiff filed a notice of association of a new counsel.

On January 10, 2020, when defense counsel inquired about dates for Burres deposition, Plaintiff’s new counsel responded that the trial continuance meant that the time for expert discovery had not yet been triggered and there needed to be a new demand for exchange of expert designation and new designations. On February 4, 2020, the parties again exchanged expert information. Plaintiff designated Brett Moelleken, and Defendant again designated Athleo Cambre. On February 20, 2020, Plaintiff’s counsel sent a letter to defense counsel stating that Moelleken had had some kind of prior arrangement with Defendant and was recusing himself. Plaintiff’s counsel stated they were designating an new expert.

On February 27, 2020, Plaintiff filed this motion to augment her expert designation with a new expert retained after she learned of this conflict.

On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to 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. (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 court shall grant leave to augment or amend an expert witness list only if all of the conditions set forth in Code of Civil Procedure section 2034.620 are satisfied:

Plaintiff has not satisfied the requirements to designate a third expert. First, trial is on March 26, 2020, and the time to take expert deposition closes today. Therefore, there is not “sufficient time in advance to permit the deposition of any expert to whom the motion relates to be taken before the discovery cut-off.” (Code Civ. Proc., § 2034.610, subd. (b).) And, there are no exceptional circumstances to permit such a late designation because this situation was of Plaintiff’s own making. Plaintiff states that in designating Moelleken, “Plaintiff’s new counsel . . . made the tactical decision to retain a new and more qualified expert than that selected by co-counsel.” (Reply, p. 2.) After designating Moelleken, Plaintiff’s counsel tried to communicate with him “to secure deposition dates and to discuss his opinions.” (Ibid.) The declaration from Plaintiff’s counsel does not expressly state when counsel first spoke to Moelleken about this case but suggests that conversation first occurred two weeks after the designation. When the attorney eventually reached him, Moelleken told the attorney that he was conflicted because he knew Defendant. Plaintiff’s decision to designate a new expert without fully vetting him created this situation.

Likewise, Plaintiff’s decision to wait until close to trial to designate a new expert contributed to the problem. Plaintiff does not show good cause for not designating Moelleken to replace Burres much earlier, such as in November 2019 when Plaintiff’s new counsel got involved. (Of course, this assumes Plaintiff had the right to designate a new expert after the earlier designations in August and October 2019. The Court had granted the two trial continuances because the August and October 2019 ex parte applications stated the parties were in the process of taking expert depositions. Nothing in those applications suggested there would be new designations.)

Second, Defendant contends he has relied on Plaintiff’s expert designation of Burres in declining section 998 offers and trial preparation. The Court cannot conclude that allowing Plaintiff to designate a third expert this close to trial would not prejudice Defendant.

Third, the Court cannot conclude that Plaintiff “would not in the exercise of reasonable diligence have determined to call” the third proposed expert, or that Plaintiff “failed to determine to call [the third proposed expert] . . . as a result of mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 2034.620.) Plaintiff acknowledges that the decision to replace Burres with Moelleken was a “tactical decision,” not a mistake, in advertence, a surprise, or excusable neglect. Plaintiff’s new counsel had three months from the time he associated into this case on November 1, 2019, to the designation of Moelleken on February 4, 2020, to confirm that Moelleken was able to testify in this case. If Plaintiff’s counsel had acted with reasonable diligence, he would have sought to replace Burres much earlier. Indeed, the correspondence shows that by at January 10, 2020 at the latest, Plaintiff’s counsel planned to replace Burres, but rather than do that expeditiously, Plaintiff waited until February 4.

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.