2016-00197430-CU-PO

Patricia Laber vs. Robert Katibah

Nature of Proceeding: Motion to Augment Expert Witness

Filed By: Adams, Douglas P.

Defendant Robert Katibah DDS’ (Dr. Katibah) motion to augment his expert witness list is DENIED.

Dr. Katibah’s request for judicial notice of court documents is GRANTED.

This is a trip-and-fall case. At some point during the litigation, Plaintiff Patricia Laber (Laber) informed Dr. Katibah that Leo Van Dolson, Jr., M.D. (Dr. Van Dolson) was treating her injured knee in a worker’s compensation case. When the parties initially exchanged expert witness lists on 8/13/18, Laber disclosed Dr. Van Dolson as a non-retained expert. Dr. Katibah did not designate Dr. Van Dolson at that time. The following day, Dr. Katibah served a supplemental expert disclosure designating Dr. Van Dolson as a non-retained expert. (See id., Exh. E.)

On 8/21/18, Dr. Katibah served notice of Dr. Van Dolson’s deposition for 9/17/18 in Folsom, California. (Id., Exh. F.) On 9/11/18, however, Laber withdrew her designation of Dr. Van Dolson and objected to Dr. Katibah’s supplemental designation. (Id., Exhs. H, I.) Dr. Katibah subsequently served notice of Dr. Van Dolson’s deposition to take place in Vancouver, Washington. Laber objected to the deposition. She then successfully moved both to strike Dr. Katibah’s supplemental designation of Dr. Van Dolson and to quash the deposition notice.

The case was set for trial on 10/01/18. The trial date was vacated, however, and there is no trial date pending at this time. The discovery cut-offs based on the original trial

date have passed.

Dr. Katibah now moves to augment his expert witness disclosures by adding Dr. Van Dolson as a non-retained expert. (See CCP §§ 2034.610 et seq.) The motion is denied because motions to augment are limited to designations of newly retained experts. (Id., § 2034.610(a)(1).)

To the extent Dr. Katibah argues that the court has inherent authority to allow an augmented witness list for the purposes for adding a non-retained expert, the court disagrees.

The court does not address the parties’ further arguments in support of or in opposition to the motion.

Disposition

The motion is denied.

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

Item 7 2016-00197430-CU-PO

Patricia Laber vs. Robert Katibah

Nature of Proceeding: Motion to Re-Open Discovery

Filed By: Pazdernik, Michael K.

Defendant Robert Katibah DDS’ (Dr. Katibah) motion to re-open non-expert discovery for the purpose of deposing Leo Van Dolson, Jr., M.D. (Dr. Van Dolson) is DENIED.

Dr. Katibah’s request for judicial notice of court documents is GRANTED.

This is a trip-and-fall case. In November 2016, Laber informed Dr. Katibah that a workers’ compensation case had been opened in relation to her injuries, and she provided him with the case number. (See Opp., Moua Decl., Exh. A, p. 8.) At a mediation in October 2017, Laber disclosed significant portions of Dr. Van Dolson’s 4/03/17 QME Report, although she did not disclose that Dr. Van Dolson had tendered

a causation opinion favorable to Dr. Katibah. (Pazdernik Decl., Exh. 2, pp. 5, 8-10.) In August 2018, Laber responded to Dr. Katibah’s supplemental document request but did not provide a copy of the full QME report. A few days later, Dr. Katibah obtained the QME Report from the workers’ compensation defense team and saw for the first time that Dr. Van Dolson had rendered a causation opinion favorable to him. This was just after Dr. Katibah served his initial expert disclosures, which did not identify Dr. Van Dolson. Dr. Katibah’s initial disclosures identified his retained expert, Dr. Klein.

The day after he received Laber’s initial disclosures, Dr. Katibah served a supplemental expert disclosure designating Dr. Van Dolson as a non-retained expert. (See id., Exh. E.) Dr. Katibah promptly served notice of Dr. Van Dolson’s deposition, but then Laber withdrew her designation of Dr. Van Dolson and objected to Dr. Katibah’s supplemental designation. Dr. Katibah subsequently served notice of Dr. Van Dolson’s deposition to take place in Vancouver, Washington. Laber objected to the deposition. She then successfully moved both to strike Dr. Katibah’s supplemental designation of Dr. Van Dolson and to quash the deposition notice.

The case was set for trial on 10/01/18. The trial date was vacated, however, and there is no trial date pending at this time. The discovery cut-offs based on the original trial date have passed.

Pursuant to CCP § 2024.050, Dr. Katibah now moves to re-open discovery to depose Dr. Van Dolson and question him about the QME Report. (See CCP §§ 2034.610 et seq.) Laber opposes.

In deciding whether to re-open discovery, the court considers all relevant matters, including (1) the necessity and reasons for the discovery, (2) diligence, (3) the likelihood an order re-opening discovery could impact the trial date, interfere with the court’s calendar or result in prejudice to another party, and (4) the length of time that has elapsed between the original trial date and the current trial date. Because Dr. Katibah already has a retained expert to opine about causation, and because Dr. Katibah was not diligent in obtaining either the QME Report or Dr. Van Dolson’s deposition, the motion is denied.

Disposition

The motion is denied.

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