2011-00103436-CU-PO

Donald Gates vs. Sutter General Hospital

Nature of Proceeding: Motion for Order Staying Deposition of J.Rosen and Quashing Plaintiff’s

Filed By: Frisch, Wendi J.

Defendant Intuitive Surgical, Inc.’s (“Intuitive”) motion for order staying deposition of
Jacob Rosen (“Rosen”) and quashing Plaintiff’s deposition notice, or in the alternative,
for a protective order, is ruled upon as follows.

This is a medical malpractice/products liability case. In his complaint, Plaintiff Donald
Gates alleges that he suffered injuries when he underwent a prostatectomy performed
at Defendant Sutter General Hospital (“Sutter”). He alleges that the surgery involved
the use of a robotic surgical device known as the da Vinci Surgical System that
disassembled during the surgery and caused injury. (The device lost its “gimbal arm”
during surgery.) Intuitive asserts that during the surgery, a portion of the hand grip
used to control the device allegedly detached from the console. Intuitive designed,
manufactured and performed maintenance on the da Vinci System in question.

Based on conversations with Sutter’s counsel, Intuitive was initially informed that
Rosen was a percipient witness to the case, similar to a treating physician. Intuitive
was later informed that Rosen is an expert in robotics who is anticipated to provide
testimony on behalf of Sutter regarding the da Vinci System. The parties have agreed
that the exchange of expert information will be on Friday, June 13, 2014. Plaintiff
served his amended notice of deposition for Rosen with the deposition scheduled for
April 22, 2014. Intuitive objected, in part, on the grounds that the deposition notice
was premature because the exchange of expert information had not yet occurred and
did not have fair notice of Rosen’s anticipated testimony. Counsel for Sutter declined
to intervene or prevent Rosen from testifying prior to expert discovery and suggested
that Intuitive depose Rosen a second time after he is designated as an expert.

Intuitive moves to stay the deposition on the grounds that the exchange of expert
information has not yet occurred, thus it lacks fair notice to prepare for the deposition.
Specifically, Intuitive argues that it has not been provided notice of: (1) Rosen’s
qualifications, (2) the substance of Rosen’s testimony, (3) any representation that
Rosen is anticipated to testify at trial, (4) any representation that Rosen will be
sufficiently familiar with this action to submit to a meaningful oral deposition, or (5)
Rosen’s hourly and daily fee for deposition and consultation. (CCP §2034.260.)
Intuitive further argues that it has not received Rosen’s discoverable reports and
writings pursuant to CCP §2034.270. Intuitive argues that it will be severely prejudiced
if Rosen’s deposition commences as scheduled because: (1) it will not have the
opportunity to adequately prepare for the deposition or cross-examination of Rosen,
(2) it will invariably be required to disclose the identities or opinions of its experts to
cross-examine Rosen, (3) it will be required to defend itself during the non-expert
depositions of its person most knowledgeable (including the PMK re: the design of the
da Vinci System) while simultaneously preparing for Rosen’s deposition, and (4) it will
be precluded from deposing Rosen a second time and will be burdened by having to
incur additional attorneys’ fees and costs to move for leave to take Rosen’s
subsequent deposition and take the subsequent deposition.

In opposition to the motion, Plaintiff argues that Rosen is no different than an
investigator hired in a personal injury action to collect evidence and the fact that the
investigator may later be disclosed as an expert is not grounds to prevent the
deposition. Plaintiff states that Sutter’s counsel indicated that Sutter hired Rosen to
investigate the cause of the failure and that based on Rosen’s findings, Sutter should
be dismissed. According to Plaintiff, Sutter offered to produce Rosen for deposition in
Santa Cruz, California and waived any objections it might otherwise assert. Plaintiff
argues that Rosen has not been disclosed as a retained expert and Plaintiff is entitled
to take his deposition because Rosen has information relevant to the case, regardless
of whether he is later disclosed as a retained expert.

The Court agrees with Plaintiff. Here, it appears that Rosen was hired by Sutter to
investigate the da Vinci system used during the incident. There is no evidence that
Rosen was hired only as an expert witness to proffer expert opinions. Therefore,
Rosen, has discoverable non-expert information to which Plaintiff is entitled. Given that
Rosen has relevant information, Intuitive’s arguments of prejudice related to the timing
of expert depositions are unavailing. Notably, Sutter has agreed to produce Rosen
prior the expert disclosure deadline and to waive any objections to the deposition.
Moreover, Intuitive will have another opportunity to depose Rosen when (and if) he is
designated as a retained expert. The Court is not convinced that Intuitive will be
precluded from taking Rosen’s deposition once he is designated as an expert witness.
CCP §2034.410 specifically permits a party to depose a person when that person is
listed as an expert witness. Further, the parties can agree to take Rosen’s additional
deposition.

Intuitive’s remaining objections lack merit. Intuitive objects that the notice of deposition
is defective because: (1) it does not include a copy of the subpoena, and (2) the
location for the deposition is more than 75 miles from the courthouse. However, it
appears that Sutter has agreed to produce Rosen and Rosen has agreed to appear
without a subpoena, thus, a subpoena is not required. Moreover, the 75 mile
restriction is for the taking of an expert deposition, not a percipient witness, and Sutter
has agreed to produce Rosen in Santa Cruz.

Accordingly, the motion to stay the deposition and quash the deposition notice is
DENIED.

Intuitive’s alternative request for a protective order to stay the deposition until Rosen
has been identified as an expert witness is also DENIED.

Both parties’ requests for sanctions are DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.