2016-00191657-CU-MM

James Snow vs. Benjamin Shadle

Nature of Proceeding: Motion for Protective Order

Filed By: Androvich, Joseph A.

Plaintiffs James Snow and Catherine Snow’s (collectively, “Plaintiffs”) motion for protective order is DENIED without prejudice to bringing it before the trial judge, by way of in limine motion, or otherwise.

This is a medical malpractice case. Plaintiffs allege causes of action for medical malpractice and loss of consortium. Only one defendant remains, Benjamin Shadle, M.D. (“Dr. Shadle”). Trial is currently set for April 8, 2019, 15 court days from today.

Plaintiffs contend Dr. Shadle disclosed three retained expert bariatric surgeons to testify on the issues of standard of care, causation, and damages and one neurologist to testify on the issue of causation and damages. Plaintiffs now move for a protective order to limit Dr. Shadle to one retained expert bariatric surgeon on the grounds using multiple experts with the same specialty to testify on the same issues is cumulative and violates Evidence Code § 723.

Dr. Shadle’s initial expert witness disclosure apparently disclosed three expert bariatric surgeons, although the initial expert witness disclosure was not provided to the Court. After meet and confer discussions, Dr. Shadle served an amended expert witness disclosure, which only lists two expert bariatric surgeons: (1) John M. Morton, M.D. (“Dr. Morton”); and (2) Raul J. Rosenthal, M.D. (“Dr. Rosenthal”). (Androvich Decl. Exh. 1.) As seen from the meet and confer correspondence following Dr. Shadle’s initial expert witness disclosure, Dr. Shadle apparently removed Dr. Felix as one of the retained expert bariatric surgeons due to unavailability. (Androvich Decl. Exh. 2 (“Dr. Felix is unavailable to testify at trial so we will not be calling him.”).)

Accordingly, what is at issue is whether Dr. Shadle can list both Dr. Morton and Dr.

Rosenthal as expert witnesses as both are bariatric surgeons.

Plaintiffs contend allowing both Dr. Morton and Dr. Rosenthal to testify will subject them to undue burden and expense due to expert deposition costs. Plaintiffs argue these costs are unreasonable given the “majority of damages are capped by MCIRA to $250,000 for pain and suffering” and “the likelihood that both experts will be permitted to testify at Trial is low to nil … .”

In opposition, Dr. Shadle contends this motion is premature because no expert testimony has yet been provided and the trial judge is in the best position to determine whether any expert witness testimony will be cumulative and should be excluded. The Court agrees. First, the trial court must make a case-by-case determination whether one, or more than one, expert may testify per issue. (1 Hogan & Weber, Cal. Civil Discovery, supra, Expert Witness Disclosure, § 10.4, p. 539.) There may, of course, be cases where the complexity or sophistication of the issue may warrant two experts on the same issue. It may also be true that the different backgrounds of two experts may be of value to the party who seeks to call them. Other circumstances may warrant two or more experts.

CCP § 2034.250(b)(6) provides that a court may issue a protective order to “reduce the list of employed or retained experts designated” in order to protect a party from unwarranted undue burden or expense. Evidence Code § 723 gives the trial judge the authority to limit the number of witnesses before or during trial. The trial judge will be in the best position to determine whether any expert witnesses are redundant and/or overlapping, or who should pay for the costs of deposing redundant experts. Any order from this Court would unduly infringe on the ability of the trial judge to control the trial proceedings. This Court does not have sufficient information to make a determination as to whether the expert witness testimony is cumulative. Accordingly, at this time, the Court finds Plaintiffs have not shown good cause to limit the number of retained expert witnesses. The motion to reduce the list of retained experts is DENIED without prejudice to bringing it before the trial judge, by way of motion in limine, or otherwise.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.