2009-00064512-CU-MM

Janeesa Singh vs. Ronald E. Buhler, DDS

Nature of Proceeding: Motion for Protective Order

Filed By: Rosenfeld, Maria S.

Defendant Ronald Buhler, DDS and ABC Dental Group’s motion for protective order is
denied.

Defendants seek a protective order requiring Plaintiff to reduce her expert list by
striking late disclosed expert Marc Salomone, DDS. In the instant case, the initial
expert witness disclosure went forward on December 31, 2012 in advance of the then
scheduled February 19, 2013, trial date. Trial was continued by stipulation and the
stipulation. The parties’ stipulation provided:

3. The Parties have agreed to this continuance to accommodate counsels’
schedules as well as witness schedules for the taking of depositions of
several witnesses and experts.
4. The Parties further agree that all deadlines related to depositions that
have been previously noticed, expert witnesses, and non-retained
experts, shall be calculated from the new Trial dates.

Judge Hight entered an order on February 8, 2013, continuing the trial. The order
provided: “OST granted-per stip return to TSP & MSC. Discovery to follow new trial
date.” (Emphasis added). Trial was then set by the Court for September 24, 2013.
Plaintiff served a demand for exchange of expert witnesses on June 26, 2013 in
advance of the September 13, 2013 trial date. Defendants sent correspondence
disputing that expert discovery was still open. Plaintiff then served a new expert
witness disclosure on August 5, 2013, naming Marc Salomone, DDS. On August 6,
2013, trial was ultimately again and Judge Hight referred the instant discovery dispute to law and motion.

Defendants seek a protective order pursuant to CCP § 2034.250(6) requiring Plaintiff
to reduce her list of retained experts, specifically to strike Marc Salmone, DDS, from
her list. Defendants argue that Plaintiff’s August 2013 expert disclosure was untimely
because discovery closed based on the initial February 19, 2013 and the continuance
did not re-open discovery. The Court disagrees. Defendants are correct that the
normal date of the exchange for expert witness information is 50 days before the initial
trial date, and that CCP § 2034.230(b)’s reference the “initial trial date” means the
original trial date, not a continued or rescheduled trial date. (Beverly Hospital v.
th
Superior Court (1993) 19 Cal.App.4 1289, 1292-1293.) They are incorrect, however,
that Plaintiff’s August 2013 disclosure was untimely given the express language of the
February 8, 2013, Order continuing the trial providing that “Discovery to follow new
trial date.” Thus, discovery remained open and any deadlines were to be based on
the new trial date and there is no argument that Plaintiff’s August 5, 2013 expert
disclosure was untimely based on the continued trial date. To the extent Defendants
believed that the February 8, 2013, Order continuing the trial date was mistaken in this
regard, the remedy would have been to seek to set aside that order pursuant to CCP §
473(b). That time has passed.

Defendants argue, however, that the February 8, 2013, Order states that the trial was
continued pursuant to the parties’ stipulation so it must be read in reference to that
stipulation. The result does not change. They argue that section 4 of the stipulation
cited above “clearly focuses upon and modifies deadlines pertaining only to
‘depositions’” and that other than depositions, discovery was to remain closed and
there is no mention of allowing further expert disclosure. (Mot. 3:10-12.) Defendants’
proposed interpretation of the stipulation is strained, at best. Indeed, it expressly
applies to subjects other than simply depositions. Indeed, it states in no uncertain
terms, that “all deadlines related to depositions that have been previously noticed,
expert witnesses, and non-retained experts, shall be calculated from the new Trial
dates.” Contrary to Defendants’ argument, the parties’ stipulation expressly states that
expert witness discovery was to be based on the new trial date. Defendants’
interpretation would ignore the express language of the stipulation. The motion for
protective order on the basis that Plaintiff’s August 5, 2013, expert disclosure was
untimely because it came after the initial trial date is denied.

In any event, the motion is also denied on the separate and independent basis that the
motion has not been promptly made as required by CCP § 2034.250(a) which provides
that a “party who has been served with a demand to exchange information concerning
expert trial witnesses may promptly move for a protective order.” Here, Plaintiff served
a demand for exchange of expert witnesses in June 2013. Further, the instant
discovery dispute was referred to law and motion by Judge Hight in August 2013 yet
Defendants did not bring the instant motion until March 2014. Under no set of
circumstances could it be said that the instant motion was promptly made. Thus, the
motion is denied for this additional reason.

Defendants’ request for sanctions is denied as the motion was denied and also
because the notice of motion fails to “identify every person, party, and attorney against
whom the sanction is sought” as required by CCP § 2023.040.

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

2009-00064512-CU-MM

Janeesa Singh vs. Ronald E. Buhler, DDS

Nature of Proceeding: Motion for Evidentiary Sanctions

Filed By: Rosenfeld, Maria S.

Defendant Ronald Buhler, DDS and ABC Dental Group’s motion for evidentiary
sanctions to exclude certain opinions of Dr. Heir and Accompanying Request for Cost
and Fees is ruled upon as follows.

In this action Plaintiff alleges that she received improper dental treatment from
Defendants. In November 2012, Defendant deposed Plaintiff’s treating dentist Dr.
Heir. Dr. Heir was not listed on Plaintiff’s subsequent expert witness disclosure.
Thereafter, Plaintiff sought to depose Dr. Heir and Defendants moved for a protective
order on the basis that Plaintiff was attempting to convert Dr. Heir into a retained
expert. This Court denied the motion and ruled that Dr. Heir’s deposition could be
taken on the issue of whether he opined that Dr. Buhler severed the nerve in her
tongue while he was extracting her wisdom teeth and whether that fell below the
standard of care but the “testimony must be limited to facts that the expert has
acquired independently due to his training, skill and experience.”

Defendants bring the instant motion on the basis that, in violation of this Court’s order,
Plaintiff’s counsel supplied Dr. Heir additional materials from which to form forensic
opinions in the second deposition and that the testimony provided was therefore not
“limited to facts that the expert has acquired independently due to his training, skill and
experience.” Defendants cite to Dr. Heir’s deposition testimony in which he testified
that Plaintiff’s counsel provided him with patient records from Dr. Buhler, a Dental
Board Accusation, and his previous deposition testimony.

Here, there is no dispute that Plaintiff’s counsel supplied Dr. Heir additional information
prior to his second deposition. Nor does there appear to be any real dispute that this
constitute a misuse of the discovery process given the Court’s ruling denying
Defendants’ motion for protective order allowing Dr. Heir’s deposition to go forward but
clarifying that the “testimony must be limited to facts that the expert has acquired
independently due to his training, skill and experience.” In ordering sanctions, the
Court has broad discretion in the selection of the appropriate sanction to be applied
under the factual circumstances. (Doppes v. Bentley Motors, Inc. 174 Cal.App.4th
967, 991-992.) Indeed, a discovery sanction “cannot go further than is necessary to
accomplish the purpose of discovery.” (Newland v. Superior Court (1995) 40
th
Cal.App.4 608, 613.)

As pointed out in opposition, Dr. Heir testified at his second deposition that although
he was provided additional materials Plaintiff’s counsel on January 3, 2014 that he did
not possess at the time of his first deposition, his testimony regarding causation and
standard of care was “completely based on [his] examination [of plaintiff].” (Heir Depo.
97:16-17.) He made clear that he reviewed his previous deposition and that while he
tried to open the other records emailed from Plaintiff’s counsel, he was not able to
open them. (Id. 99:22-24.) He also indicated that he was able to open the first page of
notes from Dr. Buhler but he could only read one line. (Id. 100:4-7.)
In these circumstances, the Court finds that an evidentiary sanction excluding all
opinions of Dr. Heir offered at the January 10, 2014, deposition at trial on the basis
that such opinions were predicated on materials supplied to him by Plaintiff’s counsel
would not be appropriate in light Dr. Heir’s testimony that his opinions as to causation
and standard of care were not based on such material.

However, Plaintiff concedes that Dr. Heir did offer an opinion based on Dr. Buhler’s
failure to properly document his medical file which was based on the small portion of
Dr. Buhler’s records provided to Dr. Heir by Plaintiff’s counsel. Plaintiff concedes that
Dr. Heir should be precluded from offering this opinion. As a result, the motion for
evidentiary sanctions is granted to the limited extent that Plaintiff shall not offer the
opinion of Dr. Heir related to Dr. Buhler’s failure to document the file. It is denied in all
other respects. The Court notes, however, that the denial is without prejudice to its
reassertion before the trial judge if it becomes apparent that Dr. Heir’s opinions offered
at the January 10, 2014, deposition were in fact based upon materials supplied by
Plaintiff’s counsel.

The Court also denies the alternative request to find that plaintiff’s counsel violated a
discovery order and directing the trial judge to determine the appropriate remedy at
trial. This Court has no ability to direct another judge to act.

Defendants’ request for monetary sanctions is denied as the notice of motion fails to
“identify every person, party, and attorney against whom the sanction is sought” as
required by CCP § 2023.040. Instead the notice simply states that “Dr. Buhler also
seeks an award of attorney’s fees and costs required for the prosecution of this
motion.” This is insufficient.

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