Case Name: Lebow, et al. v. Intuitive Surgical, Inc., et al.
Case No.: 2014-1-CV-275130

This is a wrongful death action for medical malpractice. According to the allegations of the first amended complaint (“FAC”), decedent Connie Lebow (“Decedent”) was under the care and treatment of defendants Intuitive Surgical, Inc. (“Intuitive”), Mercy Medical Center Redding (“Mercy”) and Donald Schepps, M.D. (“Schepps”) (collectively, “Defendants”), including a robotic laparoscopic cholecystectomy. (See FAC, ¶ 9.) On January 22, 2014, Decedent died due to complications of bacterial sepsis subsequent to an intra-operative perforation caused by Defendants’ negligence. (Id.) On September 22, 2015, plaintiffs Brian and Michael Lebow, as successors in interest to Decedent (“Plaintiffs”), filed the FAC against Defendants, asserting causes of action for:

1) Wrongful death/medical malpractice (against Mercy and Schepps);
2) Product liability (against Intuitive); and,
3) Survival action (against all Defendants).

On January 29, 2016, Plaintiffs served the first set of requests for production of documents (“RPDs”) on Intuitive, requesting communications between Intuitive and Shepps. Intuitive provided responses on April 22, 2016. On March 5, 2018, Plaintiffs filed an ex parte application for an order shortening time to hear a motion to compel further responses to discovery, and an ex parte application for order shortening time for a motion for evidentiary sanctions. Neither motion was accompanied by a separate statement in violation of Rule of Court 3.1345. On March 7, 2018, Plaintiffs filed second ex parte applications for an order shortening time to hear the motion to compel further responses to the discovery and for evidentiary sanctions, this time, the applications were accompanied by separate statements. The Court granted the ex parte applications for an order shortening time to hear the motion, setting the hearing for March 27, 2018. The matter is set for trial starting on April 16, 2018.

Motion to compel further responses to RPDs or document demands in the October 2018 deposition notice

Plaintiffs contend that they served a RPD on Intuitive seeking “[a]ny and all COMMUNICATIONS between [Intuitive] and DONALD SCHEPPS, M.D.” (See Pls.’ memorandum of points and authorities in support of motion to compel further responses to discovery, p.7:3-6.) However, Plaintiffs attach the RPDs and the responses to the RPDs, and the RPD at issue, number 8, is not included in Plaintiffs’ separate statement in support of their motion. Accordingly, to the extent that the motion is based on RPD 8, it is DENIED on this basis. (See Rule of Court 3.1345.) Moreover, any motion to compel a further response to RPD 8 is untimely, as Intuitive served its response nearly two years ago—far beyond 45 days of service of the response. (See Code Civ. Proc. § 2031.310, subd. (c).)

To the extent that the motion is premised on the document demands in the October 2017 deposition notice of Intuitive PMK Ray Witkowski, Intuitive objected to the demands, and Plaintiffs did not thereafter timely file a motion to compel production of documents related thereto. Intuitive also provides evidence that the notice of deposition was never properly served, and that there was never a notice of deposition for the January 29, 2018 deposition. The motion to compel further responses to RPDs and document demands is DENIED.

Motion for evidentiary sanctions

Plaintiffs also move for evidentiary sanctions, asserting that Intuitive must have intentionally concealed critical documents for at least 2 years based on its January 29, 2016 RPDs, the emails provided after the Witkowski PMK depo, and a statement made by Intuitive sales representative Colin Morales. As previously stated above, Plaintiffs have not previously moved to compel production of the subject documents, and thus, Intuitive cannot be said to have failed to obey any order compelling discovery. Although the Court agrees that at least one of the emails was relevant to Plaintiffs’ requests—and Intuitive concedes that at least one of the emails from Schepps to Witkowski references Decedent’s surgery—the Court does not find that Intuitive has engaged in a pattern of willful discovery abuse that causes the unavailability of evidence, or otherwise engaged in sufficiently egregious misconduct that justifies the imposition of nonmonetary sanctions such as evidentiary sanctions. (See New Albertsons, Inc. v. Super. Ct. (Shanahan) (2008) 168 Cal.App.4th 1403, 1422-1434.) Accordingly, Plaintiffs’ motion for evidentiary sanctions is DENIED.

The Court shall prepare the Order.