Brandon Hyatt, et al. v. Santa Barbara Cottage Hospital, et al.
Case No: 17CV02597
Hearing Date: Mon Apr 16, 2018 9:30

Nature of Proceedings: Motion Compel Further Responses to Form Interrogatories Propounded; Compel Further Responses to Req. for Admissions Propounded, etc.

Brandon Hyatt, et al., v. Santa Barbara Cottage Hospital, et al., #17CV02597, Judge Sterne

Hearing Date: April 16, 2018

Matters:

1. Motion to Compel Further Responses to Requests for Admissions

2. Motion Compel Further Responses to Form Interrogatories

Attorneys:

For Plaintiff: Debra Fischl (Effres & Assoc. – Agoura Hills)

For Defendant: Barbara A. Carroll Clinkenbeard, Ramsey, et al.)

Tentative Ruling: 1. The court denies the motion of plaintiffs Brandon and Toni Hyatt to compel further responses to requests for admission. 2. The court grants, in part, the motion of plaintiffs Brandon and Toni Hyatt to compel further responses to form interrogatories and orders that defendant Santa Barbara Cottage Hospital shall provide a further response to Form Interrogatory #12.2 on or before April 26, 2018. The court denies the motion in all other respects.

Background: On June 12, 2017, plaintiffs Brandon Hyatt and Toni Hyatt filed this action for medical negligence against defendants Santa Barbara Cottage Hospital (“SBCH”) and John Park, M.D. (formerly Doe 51). A CMC is scheduled for June 4, 2018.

Motion to Compel Further Response to Request for Admission: Plaintiffs move to compel SBCH to provide a further response to Request for Admission (“RFA”) #6. SBCH opposes the motion.

RFA #6 asks SBCH to admit: “The failure of your operating room staff members to deliver the tumor specimen removed from plaintiff Brandon Hyatt’s spine on June 15, 2016 to the pathology laboratory for evaluation fell below acceptable standards of practice.”

SBCH’s response to RFA #6: “Objection, this request is vague, ambiguous and overbroad as to the phrase ‘acceptable standards of practice.’ Further objection, this request seeks to invade the attorney client and attorney work product privileges by seeking premature expert opinions in violation of disclosure requirements of Code Civ. Proc. Section 2034.010 et seq.”

A request for admissions may properly be used to establish opinions relating to fact and the application of law to fact. Garcia v. Hyster Co., 28 Cal.App.4th 724, 735 (1994). “A party to an action may not necessarily avoid responding to a request for admission on the ground that the request calls for expert opinion and the party does not know the answer.” Bloxham v. Saldinger, 228 Cal.App.4th 729, 751 (2014).

SBCH does not respond that it does not know the answer. Rather, SBCH objects that the request calls for an expert opinion. An expert opinion, developed as a result of the initiative of counsel in preparing for trial constitutes counsel’s work product up to the point when the expert becomes a designated prospective witness. Williamson v. Superior Court, 21 Cal.3d 829, 834-835 (1978). “‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’” Flowers v. Torrance Mem’l Hosp. Medical Ctr., 8 Cal.4th 992, 1001 (1994).

Plaintiffs rely on Chodos v. Superior Court for Los Angeles Cty., 215 Cal.App.2d 318 (1963), in which the court held that it was improper to respond to a request for admission that the respondent had no independent information and that it called for an opinion. Id. at 323. But neither that case, nor Bloxham v. Saldinger, supra, address privilege or work product objections.

The court finds that SBCH properly objected to RFA #6 on the ground that it calls for privileged work product, i.e., the opinion of an expert that has not been designated. The court denies plaintiffs Brandon and Toni Hyatt’s motion to compel further responses to requests for admission.

Motion to Compel Further Response to Form Interrogatories: Plaintiff moves to compel further responses to Form Interrogatory (“FI”) ##12.1, 12.2, and 17.1. SBCH has provided a further response to FI #12.1, so the motion is moot with respect to that response. The objection to FI #17.1 is the same as for RFA #6, to which it relates. For the same reasons discussed above, the court will not order a further response to FI #17.1. That leaves FI #12.2 at issue.

FI #12.2 reads: “Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the INCIDENT? If so, for each individual state: (a) the name, ADDRESS, and telephone number of the individual interviewed; (b) the date of the interview; (c) the name, ADDRESS, and telephone number of the PERSON who conducted the, interview.”

SBCH’s response: “Objection, this interrogatory seeks to in invade the attorney-client and work product privileges. Subject to said objections, defendant responds as follows: There were no non-privileged interviews.”

Although SBCH asserted both attorney-client and work product privileges, it does not argue that FI #12.2 calls for disclosure of an attorney-client communication. SBCH argues only that: “The determination of which potential witnesses to interview and the sequence of these interviews invokes the work product doctrine, since production of the information would necessarily reflect counsel’s evaluation of the case by revealing which witnesses or persons who claimed knowledge of the incident counsel deemed important enough to interview.” That is an assertion of a work product privilege, not an attorney-client privilege.

In establishing the attorney work product privilege, the legislature has stated a dual policy to: 1) “Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases;” and 2) “Prevent attorneys from taking undue advantage of their adversary’s industry and efforts.” CCP § 2018.020.

“A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” CCP § 2018.030(a). “The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” CCP § 2018.030(b).

The work product of an attorney, other than a writing containing his/her own impressions, conclusions, opinions, or legal research or theories, is not discoverable “unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” CCP § 2018.030(b). This means that the attorney’s work reflecting his impressions, opinions, etc… is absolutely qualified, but other work product is subject to a qualified privilege.

Plaintiffs rely on Coito v. Superior Court, 54 Cal.4th 480 (2012), in which the court addressed FI #12.3, which seeks information regarding recorded witness statements. “[A] witness statement obtained through an attorney-directed interview is entitled as a matter of law to at least qualified work product protection.” Id. at 499. Noting that the distinction between a list of witnesses interviewed and the collection of statements from witnesses is significant, the court in Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), stated: “A list of the potential witnesses interviewed by defendants’ counsel which interviews counsel recorded in notes or otherwise would constitute qualified work product because it would tend to reveal counsel’s evaluation of the case by identifying the persons who claimed knowledge of the incident from whom counsel deemed it important to obtain statements.” Id. at 217.

SBCH’s cryptic response that there “were no non-privileged interviews” is conclusory and does not meet its burden of making a foundational showing. SBCH does not even say there were interviews. The answer to the first question in FI #12.2 is either “yes” or “no.” At a minimum, SBCH must state how many interviews it claims are privileged, who took them, and on what dates. Counsel should be prepared to state why revealing the names of interviewees reflects an attorney’s impressions, conclusions, opinions, legal research, or theories. E.g. counsel should discuss whether he interviewed all potential witnesses or whether he selected only some witnesses for interviews based on his impressions or theories of the case.

The court will order a further response to FI #12.2. The court grants, in part, plaintiffs Brandon and Toni Hyatt’s motion to compel further responses to form interrogatories and orders that defendant Santa Barbara Cottage Hospital shall provide a further response to Form Interrogatory #12.2 on or before April 26, 2018. The court denies the motion in all other respects.