Case Number: BC603957 Hearing Date: August 31, 2018 Dept: 4

Motion to Augment Expert Witness List

The court considered the moving, opposition, and reply papers.

Background

On December 10, 2015, Plaintiff Miriam Mark filed a complaint against Defendant Safeway, Inc. for negligence arising out of a trip and fall incident.

On August 28, 2017, Plaintiff Ari Mark filed a complaint against Defendant Safeway, Inc. for loss of consortium in BC673992.

On October 4, 2017, the court related and consolidated BC673992 with this action.

Trial is set for October 10, 2018.

Discussion

Plaintiffs request an order granting leave to augment their expert witness list to add Stuart Silverman, M.D. and Hart Cohen, M.D.

Under CCP section 2034.610(a), on motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to either or both of the following: (1) augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained, or (2) amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give. Under section 2034.610(b), a motion under (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time. Under section 2034.610(c), the motion shall be accompanied by a meet and confer declaration.

Under CCP section 2034.620, the court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(c) The court has determined either of the following:

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: (A) sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony, and (B) promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.

Under section 2034.620(d), leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

With respect to the request to add Stuart Silverman, M.D. as a retained rheumatologic expert, Plaintiffs explain that they were surprised during the June 25, 2018 deposition of Defendant’s retained orthopedic surgeon, Tye Ouzounian, M.D., when Dr. Ouzounian opined that Plaintiff Miriam Mark’s back pain was due to a rheumatologic issue as this was not noted in Dr. Ouzounian’s expert report provided to Plaintiffs’ counsel on July 6, 2017. As for the request to add Hart Cohen, M.D. as a non-retained treating neurologist, Plaintiffs explain that Miriam was only referred to Dr. Cohen after Defendant took the deposition of Christopher Zarembinski, M.D., Miriam’s pain specialist who referred her to Dr. Cohen. Miriam was first treated by Dr. Cohen on July 30, 2018.

The court finds that Plaintiffs have met the requirements under CCP section 2034.610. Plaintiffs engaged in a timely exchange of expert witnesses. When the trial was continued to October 10, 2018 from July 3, 2018, expert and treating physician discovery cut-off dates were also continued. The motion is thus made at a sufficient time in advance of the time limit for the completion of expert witness discovery. (See Code Civ. Proc., § 2024.030 [providing parties with the right to complete depositions as late as 15 days before the initial trial date].) Plaintiffs have also sufficiently met and conferred with Defendant prior to bringing this motion.

Additionally, the court finds that the factors under CCP section 2034.620 have been satisfied. The court has taken into account the extent to which Defendant relied on Plaintiffs’ list of expert witnesses and whether Defendant would suffer prejudice in maintaining its defense on the merits. Generally, Defendant’s reliance on Plaintiffs’ designations of only Mariam’s treating physicians and no rheumatologists or neurologists in retaining only an orthopedic surgeon and hematologist would indicate that Defendant would be prejudiced in maintaining its action or defense on the merits if Plaintiffs are allowed to add experts on rheumatological or neurological issues. However, the court finds Defendant will not be prejudiced in this case. It was the surprise testimony of Defendant’s own orthopedic expert about a potential rheumatological issue when this issue was not disclosed in the expert’s report that led to Plaintiffs’ request to add a Dr. Silverman as a rheumatological expert. With respect to Dr. Cohen, Miriam was not referred to him until recently. Furthermore, as the court is granting Defendant’s request to add its own rheumatological and neurology experts, Defendant would not be prejudiced by any additions.

Plaintiffs have also satisfied section 2034.620(c). With respect to Dr. Silverman, Plaintiffs would not in the exercise of reasonable diligence have determined to call him as an expert witness had Defendant’s expert not testified as to a rheumatological issue at his deposition. Defendant asserts that Plaintiffs were not reasonably diligent as Miriam stated in her 2016 deposition that her treating physician has referred her to a rheumatologist. This referral is insufficient to indicate that there was a rheumatological issue such that Plaintiffs should have determined a rheumatological expert was necessary. Even assuming Plaintiffs were not reasonably diligent to satisfy section 2034.620(c)(1), Plaintiffs have satisfied section 2034.620(c)(2). As discussed, Plaintiffs assert they were surprised when Defendant’s expert testified as to the rheumatological issue as this was not disclosed in the expert’s report. This is sufficient to show that any failure by Plaintiffs to determine a rheumatological expert is necessary was the result of surprise. Plaintiffs also sought leave to augment promptly after deciding to call Dr. Silverman as an expert witness. Defendant’s expert’s deposition was taken on June 25, 2018. Plaintiffs’ counsel’s office informed Defendant about the need for a rheumatological expert on July 24, 2018 and promptly filed this motion on August 8, 2018 after Defendant refused to stipulate to augmenting the witness list to add Dr. Silverman. Plaintiffs have also promptly served a copy of the proposed expert witness information. While it appears Plaintiffs did not provide all expert witness information regarding Dr. Silverman as required by section 2034.260 until after this motion was filed, the court finds that this delay in providing all of the required information does not mean Plaintiffs were not prompt in serving this information, especially given Plaintiffs promptly gave notice to Defendant of their request to add Dr. Silverman as an expert in their attempts to obtain a stipulation.

As for Dr. Cohen, the court finds that Plaintiffs would not in the exercise of reasonable diligence have determined to call him as an expert witness as Miriam was only recently referred to Dr. Cohen and had her first treatment on July 30, 2018. Given Plaintiffs have satisfied section 2034.620(c)(1), there is no need for Plaintiffs to satisfy section 2034.620(c)(2) based on mistake, inadvertence, surprise, or excusable neglect.

Accordingly, Plaintiffs’ motion is GRANTED.

Defendant requests an order allowing it to augment or amend its expert witness list and continuing the trial. Plaintiffs oppose these requests, claiming Defendant has failed to show good cause for adding expert witnesses or continuing the trial. As discussed, Defendant had relied on Plaintiffs’ expert witness list only listing treating physicians and no rheumatological or neurological expert in designating orthopedic and hematological experts. As Plaintiffs are being allowed to add an expert witness and treating neurologist, there is good cause to allow Defendant to add their own experts in these medical fields. In light of the addition of these experts, the court finds there is good cause to continue the trial. Therefore, Defendant’s requests are GRANTED.

CONCLUSION

Plaintiffs’ motion to augment expert witness list is GRANTED.

Defendant’s requests for an order allowing it to augment or amend its expert witness list and continuing the trial are GRANTED.

The court ORDERS that:

(1) Plaintiffs have leave to augment their expert witness list by adding Stuart Silverman, M.D. and Hart Cohen, M.D., pursuant to CCP section 2034.610(a), and that leave to augment is conditioned on Plaintiffs making Dr. Silverman and Dr. Cohen available immediately for deposition.

(2) Defendant has permission to augment or amend its expert witness list to add rheumatological and neurological experts. Defendant must make any additional experts available immediately for deposition after augmenting or amending its expert witness list.

(3) The trial date is continued from October 10, 2018 to ______________, at 8:30 a.m., in Department 4. The Final Status Conference is continued from October 3, 2018 to _________, at 10:00 a.m., in Department 4. Only expert and treating physician discovery dates are to follow the new trial date.

Plaintiffs are ordered to provide notice of this ruling.

IT IS SO ORDERED.

DATED: August 31, 2018

_____________________________

Christopher K. Lui
Judge of the Superior Court