Case Name: Gail Jean McGuire, et al. v. Saini Bros Trucking, Inc., et al.
Case No.: 2015-1-CV-281056

Application to Augment Expert Witness List

Factual and Procedural Background

Plaintiffs Gail-Jean McGuire and Doug McGuire (collectively, “McGuires”) allege that they are the parents of decedent Daniel McGuire (“Decedent”) who was killed on July 10, 2014 when a tractor hauling two fully loaded trailers driven by defendant Ravinderpal Singh (“Singh”) collided with Decedent’s vehicle. (McGuire Second Amended Complaint (“McGuire SAC”), ¶¶1, 4, and 6.)

In the McGuire SAC filed on May 6, 2016, the McGuires assert causes of action for (1) Negligence – Wrongful Death and Survivor’s Action; (2) Negligent Hiring, Supervision, Training and/or Retention – Wrongful Death and Survivor’s Action; (3) Unfair Competition [versus defendants Saini Bros Trucking, Inc. (“SBT”), Singh, Surinder S. Banwait (“Banwait”), Saini Trucking, Inc. (“STI”), and Parminder Tambar].

In a case management conference occurring April 20, 2017, the court issued an order setting a trial in this matter for August 14, 2017 and a stipulated discovery schedule. Pursuant to the stipulated discovery schedule, the deadline to disclose expert witnesses fell on May 31, 2017, the deadline to disclose supplemental expert witnesses fell on June 20, 2017, and the deadline to complete expert discovery fell on July 20, 2017.

On May 31, 2017, plaintiff McGuires designated Bennett Omalu, M.D. (“Dr. Omalu”) as their expert witness in the field of neuropathology. On the same date, defendant Don Chapin Co., Inc. (“Chapin”) disclosed two experts, but did not disclose an expert in neuropathology. Chapin’s counsel relied on plaintiff McGuires’ disclosure which stated Dr. Omalu would provide testimony “as to the cause and timing of [Decedent’s] death relative to the Subject Accident.” The coroner, Dr. Jeffrey O’Hara (“Dr. O’Hara”) testified he did not know if Decedent sustained blunt force trauma to his chest before or after Decedent sustained blunt force trauma to his skull. Dr. O’Hara further testified that blunt force trauma to Decedent’s chest would have resulted in death within seconds while blunt force trauma to Decedent’s head/skull would have resulted in instantaneous death. Chapin reasonably believed Dr. Omalu would offer an opinion as to whether the chest or head injury occurred first. Chapin’s counsel understood Dr. Omalu’s opinion would supplement plaintiff McGuires’ other experts who testified Decedent’s car was initially impacted by the truck driven by Singh, spun clockwise, and was crushed against the guardrail. Chapin’s counsel believed Dr. Omalu would testify that the initial rear impact did not cause all or some of Decedent’s injuries, and would offer an opinion as to whether the chest or head injury occurred first.

Dr. Omalu was deposed on July 6, 2017. Chapin’s counsel was surprised when Dr. Omalu testified and submitted a report which stated that not only did Decedent live for three to five minutes after the blunt force trauma injuries irrespective of whether the chest or head injury occurred first, but that Decedent remained conscious for 10 – 15 seconds after a significant portion of his brain left his skull, and that Decedent experienced pain and suffering, and knowledge of his impending death during those 10 – 15 seconds.

Following Dr. Omalu’s deposition, Chapin took immediate steps to find and retain an expert in neuropathology to respond to Dr. Omalu’s testimony. On July 14, 2017, Chapin retained Otto Hannes Vogel, M.D. (“Dr. Vogel”), an expert in the field of neuropathology. Also on July 14, 2017, Chapin served its proposed supplemental designation of Dr. Vogel as its expert in neuropathology. Between July 14 – 19, 2017, Chapin’s counsel met and conferred with plaintiff McGuires’ counsel but were unable to reach an informal resolution.

On July 20, 2017, Chapin appeared ex-parte with an application to augment its expert witness list to include Dr. Vogel. Rather than rule on the application, the court issued an order shortening time for a hearing on the application to occur on July 27, 2017. Chapin filed its application to augment on July 20, 2017. Plaintiff McGuires filed opposition on July 21, 2017.

Discussion

II. Defendant Chapin’s application to augment expert witness list is DENIED.

“On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to … [a]ugment 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)(1).) “A motion [to augment expert witness list] shall be made at a sufficient time in advance of the time limit for the completion of discovery … 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.” (Code Civ. Proc., §2034.610, subd. (b).)

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.
(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.
(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.

(Code Civ. Proc., §2034.620.)

Plaintiffs oppose this motion, in part, on the ground that defendant Chapin has not adequately demonstrated that Chapin “would not in the exercise of reasonable diligence have determined to call [Dr. Vogel] or have decided to offer [Dr. Vogel’s] additional testimony” or that Chapin “failed to determine to call [Dr. Vogel], or to offer [Dr. Vogel’s] additional testimony … as a result of … surprise.” Chapin’s argument in that regard was that it did not foresee and/or was surprised when Dr. Omalu testified (1) Decedent lived for three to five minutes after the blunt force trauma injuries; (2) Decedent remained conscious for 10 – 15 seconds after a significant portion of his brain left his skull, and (3) Decedent experienced pain and suffering, and knowledge of his impending death during those 10 – 15 seconds.

Of these first two purportedly unforeseeable or surprising statements, the court is not persuaded by Chapin’s arguments. In essence, Chapin contends Dr. Omalu’s testimony about the timing of Decedent’s death is so unbelievable that it is tantamount to surprise. The court does not agree. These first two statements relate specifically to the timing of Decedent’s death which, as set forth in plaintiff McGuires’ expert disclosure, is the precise subject on which Dr. Omalu would testify. Moreover, the testimony should have come as no surprise to Chapin since the timing of Decedent’s death was an issue raised in the McGuire SAC and in the motions for summary judgment/ adjudication filed by defendants STI, SBT, and Singh in early May 2017.

Chapin also claims it was not reasonably foreseeable and a surprise that Dr. Omalu would testify that Decedent experienced pain and suffering and knowledge of his impending death for 10 – 15 seconds following the expulsion of a significant portion of Decedent’s brain. Chapin contends it will not be able to question Dr. Omalu about the basis for his opinion regarding the timing of Decedent’s death and avoid testimony regarding Decedent’s conscious pain and suffering.

In opposition, plaintiff McGuires claim it is disingenuous for Chapin to argue surprise when its own proposed supplemental designation and disclosure of Dr. Vogel places no limitation on the subjects which Dr. Vogel could potentially testify. Plaintiff McGuires also argue Chapin’s claim of surprise is false and misleading because Dr. Omalu only testified about conscious pain and suffering in response to questioning from Chapin’s counsel and actually testified that he was not asked to form or offer an opinion on [Decedent’s] conscious pain and suffering. Finally, plaintiff McGuires contend augmentation is unnecessary because pain and suffering is, admittedly, not an item of recoverable damage.

The court is not persuaded by Chapin’s assertion that Dr. Omalu will necessarily opine at trial that Decedent experienced pain and suffering particularly in view of Dr. Omalu’s statement that he does not intend to offer an opinion on Decedent’s conscious pain and suffering. Moreover, given plaintiff McGuires’ admission that pain and suffering is not an item of recoverable damage, the court is of the opinion that a stipulation or a motion in limine will preclude any testimony concerning Decedent’s pain and suffering.

In reply, Chapin argues additionally that it seeks leave to submit Dr. Vogel as a tardy witness disclosure based upon Code of Civil Procedure section 2034.710. That section states, in relevant part, “On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.” (Emphasis added.) Chapin contends it need not make the same showing for a tardy designation of experts as it would need to if seeking augmentation. Chapin is incorrect as Code of Civil Procedure section 2034.720 requires a showing similar to Code of Civil Procedure section 2034.620. Regardless, Chapin cannot seek relief to submit a tardy disclosure since Chapin in fact served a timely disclosure on May 31, 2017. This section does not apply to Chapin who, as indicated above, did not fail to submit expert witness information by the May 31, 2017 deadline to disclose expert witnesses.

Accordingly, defendant Chapin’s application to augment expert witness list is DENIED.

In opposition, plaintiff McGuires request the court impose monetary sanctions against defendant Chapin and/or its counsel pursuant to Code of Civil Procedure section 2034.630 which states, “The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to augment or amend expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Here, in spite of the court’s ruling above, the court finds defendant Chapin acted with substantial justification. Accordingly, plaintiff McGuires’ request for monetary sanctions is DENIED