2010-00067854-CU-MM

Beverlie Wilson vs. Schering-Plough Corporation

Nature of Proceeding: Motion to Compel Deposition and Production of Documents

Filed By: Stanley, David E.

APPEARANCE REQUIRED , either in person or by telephone. This matter was originally set for hearing on 2/19/2014 but after oral argument, it was
continued with directions for counsel to meet-and-confer regarding expert disclosures,
expert testimony and the scheduling of expert discovery. Counsel shall now be
prepared to discuss these issues and their efficient resolution in light of the Court’s
original tentative ruling issued prior to the 2/19/2014 hearing date.

That tentative ruling is set forth below in its entirety.

Defendant Merck & Co, Inc.’s (“Merck”) motion to compel the deposition of Dr.
Menashe is GRANTED but both moving and opposing counsel should be
prepared to discuss at oral argument the issues noted below.

Moving counsel is admonished because the notice of motion does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel
is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the
Court’s tentative ruling procedure and the manner to request a hearing. If moving
counsel is unable to contact opposing counsel prior to hearing, moving counsel
is ordered to appear at the hearing in person or by telephone.

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1110(b)(3)-(4).

This medical malpractice lawsuit arises out of plaintiff’s use of various medications in a
clinical drug trial to treat her Hepatitis C. It is alleged plaintiff suffered an arterial, as
opposed to venous, blood clot which led to the partial amputation of her left leg. Merck
and other defendants have filed a motion for summary judgment, now set to be heard
on 3/13/2014, premised on the defendants’ claim that plaintiff cannot establish the
causal connection between the medications at issue and the arterial blood clot. More
specifically, defendants maintain that there is no reliable medical or scientific evidence
which shows that any of the medications taken by plaintiff, either alone or in
combination, can cause arterial clots. In support of this assertion, defendants have
offered inter alia a declaration by Dr. Comp which avers in essence that are no
medical/scientific reports of arterial blood clots being attributed to the use of the
medications at issue here.

In opposition to this summary judgment motion, plaintiff has submitted a declaration by
Dr. Menashe which asserts that the medication was a substantial factor in causing the
blood clots culminating in the amputation.

Pursuant to St. Mary Medical Center v. Superior Court (Mennella) (1996) 50
Cal.App.4th 1531, Merck now moves to compel the deposition of Dr. Menashe in order
to question him on the foundation for his opinion on causation of plaintiff’s arterial
blood clots. Merck contends that given the legitimate questions regarding the validity
of the foundation for Dr. Menashe’s opinions including his failure to cite any peer-
reviewed epidemiological studies or other reliable medical/scientific evidence tending
to show a correlation between the medications and arterial clots, it should be permitted
to take a limited deposition prior to the hearing on the summary judgment motion (and
prior to the parties’ simultaneous disclosure of experts pursuant to Code of Civil
Procedure §2034.260) in order to obtain a full record on which the Court can ultimately
determine the admissibility of Dr. Menashe’s opinions on causation.

Plaintiff opposes, arguing that Dr. Menashe has provided a competent, reliable declaration which fully details the basis for his opinion and that the mere fact he cited
no peer-reviewed study does not mean there is no proper foundation for his opinion.
The opposition adds that the St. Mary decision does not support the relief Merck now
seeks and that Merck’s attempt to depose this expert both now and presumably again
after his disclosure as an expert at trial pursuant to Code of Civil Procedure §2034.260
is improper, harassing and unfair.

Although it may be a close call, this Court holds that Merck has made a sufficient
showing to justify the deposition of Dr. Menashe consistent with St. Mary. There, the
Second District Court of Appeal stated:

“The question we address in this petition is whether or not the provisions of
Code of Civil Procedure section 2034 preclude depositions of experts who are
utilized in connection with summary judgment or summary adjudication
proceedings if there has not yet been an exchange of experts pursuant to that
section. We conclude that where a party presents evidence that raises a
significant question relating to the foundation of an expert’s opinion filed in
support of or in opposition to a motion for summary judgment or summary
adjudication, a deposition limited to that subject should be allowed.” (St. Mary,
at 1533-1534.)

More specifically, the Second District explained:

“We believe that is the situation presented in this case. Counsel for [defendants
moving for summary judgment] presented information to the court from which a
serious question arose about whether or not Dr. Eber’s declaration [submitted
by the opposing plaintiff] may have been factually incorrect, at least as to Dr.
Waider. Counsel pointed out that Dr. Waider was not involved in the procedure
of May 13. While counsel could have presented a reply declaration from Dr.
Waider to that effect, it would have been contradictory to the declaration of Dr.
Eber and the trial court would have been required to conclude that a triable
issue of fact existed, at least on that issue. It is possible that upon deposition of
Dr. Eber, confronted with proof that he may have been mistaken in his belief
that Dr. Waider was involved in the procedure, he may concede his mistake. In
addition, counsel for [defendants] submitted evidence which suggested that ‘the
bases for Dr. Eber’s conclusions to be untenable.’ [Defendants’] counsel…
indicated that the deposition would cover no more than the opinions rendered in
the declaration of Dr. Eber. Thus, we conclude that failure to allow the
discovery was an abuse of discretion. (St. Mary, at 1540.)

While the St. Mary Court cautioned that “the process should not be utilized to turn
summary proceedings into mini-trials,” it is left to the sound discretion of the trial court
to determine whether the facts presented regarding the foundation for an expert’s
opinion are sufficient to justify a deposition prior to both the summary judgment
hearing and the pre-trial disclosure of experts. (St. Mary, at 1540-1541.) This Court
concludes on the present record, including the declarations submitted by Dr. Comp
and Dr. Menashe, that a deposition of the latter is appropriate in order to fully explore
the foundational support for Dr. Menashe’s opinions on causation. It is worth noting
that this deposition testimony will greatly assist this Court in determining the
admissibility of this expert’s declaration in opposition to the pending summary
judgment motion. Accordingly, the motion is granted. Although St. Mary provides authority for effectively
permitting Merck to depose Dr. Menashe on two different occasions (i.e., prior to the
summary judgment motion and also after disclosure of experts), this Court is
concerned not only with the practicability of the completing this deposition prior to the
current 3/13/2014 summary judgment hearing date but also with the feasibility of
“limiting” the deposition solely to the foundation for the Dr. Menashe’s opinions on
causation, as this is likely to provide no meaningful limitation at all given the nature of
the foundational issues and the facts of this case. Thus, as an alternative, the Court is
also considering continuing on its own motion pursuant to Code of Civil Procedure
§437c(h) the 3/13/2014 summary judgment hearing date until after the parties’
anticipated exchange of expert witness information roughly 50 days before the current
trial date of 7/7/2014. However, this alternative has its own drawbacks which may
offset potential advantages.

Therefore, both moving and opposing counsel should be prepared to discuss at
oral argument the most efficient and fair manner of proceeding with the
deposition of Dr. Menashe regarding the foundation for those opinions on
causation which are found in his declaration filed in opposition to the pending
summary judgment motion.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)