On 02/08/2018 SANTOS FLANIKEN filed a Personal Injury - Other Personal Injury lawsuit against TIMOTHY R COMMERFORD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
ALEESE & TIMOTHY COMMERFORD AS TRUSTEES
COMMERFORD TIMOTHY R.
DOES 1 TO 10
LIPTON KENNETH M.
LEWIS BRISBOIS BISGAARD & SMITH LLP
5/6/2019: Motion to Compel
4/25/2018: DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT
2/8/2018: COMPLAINT FOR PERSONAL INJURIES
at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Motion to Compel (MOTION TO COMPEL); Filed by Santos Flaniken (Plaintiff)Read MoreRead Less
Answer; Filed by Aleece Commerford (Defendant); Timothy R. Commerford (Defendant); Aleese & Timothy Commerford as trustees (Defendant)Read MoreRead Less
DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINTRead MoreRead Less
Complaint; Filed by Santos Flaniken (Plaintiff)Read MoreRead Less
Case Number: BC693615 Hearing Date: October 30, 2020 Dept: 28
Motion to Augment Expert Witness List
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On February 8, 2018, Plaintiff Santos Flaniken (“Plaintiff”) filed a complaint against Defendant Timothy R. Commerford and Aleece Commerford in their capacities as individuals and trustees of the Commerford Revocable Trust as Amended and Restated on February 18, 2005 (collectively “Defendants”).
On June 19, 2020, Plaintiff filed a motion for leave to augment his expert witness list pursuant to California Code of Civil Procedure section 2034.610.
On June 23, 2020, the Court scheduled Plaintiff’s motion for leave to augment his expert witness list to be heard on October 30, 2020.
A trial setting conference is scheduled for November 3, 2020.
Plaintiff asks the Court for leave to change Babak Samimi, M.D. from a non-retained expert to a retained expert.
Plaintiff also asks the Court for leave to designate Jeff Harris, M.D., Walter R. O’Brien, and Roy Bottlieb, D.O. as non-retained experts.
Under California Code of Civil Procedure section 2034.610, subdivision (a), on motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to either or both of the following: (1) 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, or (2) amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give. Pursuant to California Code of Civil Procedure section 2034.610, subdivision (b), a motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time. Additionally, the motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2034.610, subd. (c).)
California Code of Civil Procedure section 2034.620 provides that the court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:
(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.
(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.
(c) The court has determined either of the following:
(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.
(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: (A) sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony, and (B) promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.
Under section 2034.620, subdivision (d), leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.
Plaintiff seeks to augment his expert witness list to (1) redesignate Babak Samimi, M.D. as a retained expert instead of a non-retained expert and (2) designate treating physicians Jeff Harris, M.D., Walter R. O’Brien, and Roy Bottlieb, D.O. as non-retained experts.
Defendants argue they relied on Plaintiff’s expert witness designation because they did not elect to submit a supplemental expert witness list. (Opposition, p. 3:1-3:5.) Additionally, Defendants did not depose all of Plaintiff’s treating physicians since Plaintiff did not designate all of them. (Opposition, p. 3:14-3:15.) Defendants’ costs will increase as a result of deposing additional experts if the motion is granted. (Opposition, p. 3:15-3:16.)
The Court finds Defendants have not relied on Plaintiff’s expert witness designation enough to require a denial of the motion. Granting the motion requires Plaintiff to make the experts immediately available for depositions. Costs associated with deposing these experts does not amount to sufficient prejudice. Moreover, as Plaintiff correctly argues, the Presiding Judge continued the expert discovery deadline in General Orders filed on April 14, 2020 and May 13, 2020 to a future trial date to be set by this Court. (Kramer Decl., ¶ 6, Exh. B-C.) Trial is still not set in this matter. As such, Defendants’ reliance on Plaintiff’s expert witness designation does not present sufficient prejudice to Defendants.
Plaintiff’s failure to designate Babak Samimi, M.D. as a retained expert and Jeff Harris, M.D., Walter R. O’Brien, and Roy Bottlieb, D.O. as non-retained experts resulted as a miscommunication between Plaintiff’s lawyers. Plaintiff’s lead counsel, Kenneth M. Lipton, associated in Daniel Kramer and his firm as trial counsel on May 12, 2020. (Lipton Decl., ¶ 2.) Mr. Lipton prepared the expert designation in June of 2019 without knowing Mr. Kramer’s policy and procedure of naming all treating physicians as non-retained experts and their intent to use Dr. Samimi as a retained expert. (Lipton Decl., ¶ 5.)
The Court finds Mr. Lipton’s failure to designate the relevant doctors as Mr. Kramer’s firm preferred is sufficient to grant the motion. Mr. Lipton would not have known to designate the relevant doctors as Mr. Kramer’s firm prefers because Mr. Kramer’s firm was associated in after Mr. Lipton served the expert witness list. Accordingly, leave is properly granted for the proposed augmenting of Plaintiff’s expert witness list.
The motion is GRANTED.
Plaintiff is ordered to give notice of this ruling.
The parties are directed to the header of this tentative ruling for further instructions.