Case Number: BC644116 Hearing Date: May 15, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S EXPERT DESIGNATION AND TO EXCLUDE IMPROPERLY DESIGNATED EXPERT WITNESSES

On December 16, 2018, Plaintiff Yasmin Avila (“Plaintiff”) filed this action against Defendant The Pep Boys – Manny, Moe & Jack (“Defendant”) for negligence and premises liability arising out of a June 14, 2016 slip and fall incident. Defendant moves to strike portions of Plaintiff’s expert designation on grounds Plaintiff failed to comply with the Code of Civil Procedure and improperly designated expert witnesses.

Procedural Background

Defendant objected to: (1) Plaintiff’s designation of “Brad Avrit, P.E. and/or Philip Rosescu” as a liability expert; (2) Plaintiff’s failure to provide a statement of her expert’s qualification, a representation that her experts will be sufficiently familiar with the case to submit to a meaningful deposition, and a statement of the daily or hourly fees for the experts; (3) Plaintiff’s designation of 23 non-retained treating physicians, most of which Plaintiff knows will not be potential witnesses; and (4) Plaintiff’s designation of “any and all physicians and treating personnel” from fifteen separate facilities without identifying any by name.

In Opposition, Plaintiff’s counsel stated an incorrect declaration was submitted with Plaintiff’s Expert Witness Designation and the errors have been remedied. Plaintiff designated Brad Avrit, P.E. and Andrew Morris and re-designated George Rappard, M.D. as a non-retained expert witness.

In Reply, Defendant states Plaintiff’s counsel’s assertion that a wrong declaration was submitted and first discovered upon review of this Motion is disingenuous, since the parties have engaged in meet and confer efforts regarding Defendant’s issues with Plaintiff’s designations. However, the parties have completed expert discovery as it relates to retained expert witnesses. The only remaining issue is Plaintiff’s generic designation of non-retained experts, including “any and all physicians and treating personnel” from various facilities.

Legal Standards

“Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” (Code Civ. Proc., § 2034.210, subd. (b).) The exchange of expert witness information shall include either of the following: (1) a list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial, or (2) a statement that the party does not presently intend to offer the testimony of an expert witness. (Code Civ. Proc., § 2034.260, subd. (b).) On objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: (1) list that witness as an expert under Section 2034.260; (2) submit an expert witness declaration; (3) produce reports and writings of expert witnesses under Section 2034.270; or make that expert available for a deposition. (Code Civ. Proc., § 2034.300.)

Discussion

Plaintiff’s expert witness designation identifies as non-retained experts “any and all physicians and treating personnel” from ten (10) medical facilities. (Declaration of Nicholas Von Der Lancken, ¶ 4; Exh. B.) Defendant argues this violates the spirit of section 2034, and it is within the trial court’s discretion to exclude any expert testimony by these non-designated experts.

“The identity and opinions of a party’s retained experts are generally privileged unless they are going to testify at trial” and “whether a retained expert will testify need not be revealed until shortly before trial.” (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 37.) “By contrast, the identity and opinions of treating physicians are not privileged. Rather, because they acquire the information that forms the factual basis for their opinions independently of the litigation, they are subject to no special discovery restrictions.” (Id. at p. 38.) “Retained experts must be designated, and the designation must be accompanied by the ‘expert witness declaration’ described in Section 2034, subdivision (f). But treating physicians are not ‘retained experts’ within the meaning of section 2034, and no expert declaration is required when a party intends to call a treating physician for the purpose of eliciting expert testimony; it is sufficient if a treating physician is identified by name and address in the proponent’s designation of expert witnesses. Where, as here, the treating physicians are not listed or identified by name but simply referred to in the designation as ‘all past or present examining and/or treating physicians,’ there has been no compliance with the letter or the spirit of section 2034, and the trial court acts within its discretion when it excludes expert testimony by the non-designated doctors.” (Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1422.)

In Kalaba, the Plaintiff designated “all past or present examining and/or treating physicians” as non-retained experts. The trial court excluded expert testimony by these non-designated and unnamed doctors at trial. (Kalaba, supra, 95 Cal.App.4th at p. 1422.) Plaintiff’s counsel contends this case is distinguishable from Kalaba because her designation goes far beyond the generic description of non-retained experts by stating “any and all physicians and treating personnel from” a specified facility “who provided any and all care and treatment to the plaintiff.”

There is no meaningful difference between the designation of non-retained experts/treating physicians here and in Kalaba. The names and addresses of any non-retained experts is required to comply with Section 2034. “[T]he Supreme Court has not suggested that, to be prudent, defense counsel ought to depose every treating physician without regard to whether the treating physician has been designated as an expert” and as such, “the statutory scheme and the Supreme Court’s discussion in Schreiber make it clear that a party who intends to call a treating physician as an expert must identify that physician in her designation of expert.” (Kalaba, supra, 95 Cal.App.4th at p. 1423.)

The Motion to strike the unnamed non-retained expert witnesses from Plaintiff’s Expert Witness Designation and to exclude testimony by any unnamed non-retained expert witnesses is GRANTED.

Moving party to give notice.