2016-00197430-CU-PO

Patricia Laber vs. Robert Katibah

Nature of Proceeding: Motion to Strike

Filed By: Loewen, Michael R.

Plaintiff Patricia Laber’s (Laber) motions to strike supplemental expert designation and quash deposition notice are GRANTED.

Defendant Robert Katibah DDS’ (Dr. Katibah) request for judicial notice of the complaint in this case is GRANTED. His further request for judicial notice of a mediation brief is DENIED. The mediation brief is not a court document and is not otherwise the subject of judicial notice.

This is a trip-and-fall case. On or about 10/09/17, 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. (See Moua Decl., Exh. C.) 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 list 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. (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 on 9/27/18 in Vancouver, Washington. Laber objected to the deposition, and this motion followed.

When Laber filed her moving papers, the case was set for trial on 10/01/18. The trial date was later vacated, and there is no trial date pending at this time. The court, however, finds no order resetting the discovery cut-offs based on a new trial date.

Laber moves to strike Dr. Katibah’s supplemental designation of Dr. Van Dolson. Pursuant to CCP § 2034.280(a), a party may supplement an expert witness list by making “experts who will express an opinion on a subject to be covered by an expert designated by an adverse party…if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.”

Dr. Van Dolson is an orthopedic surgeon. When Dr. Katibah made his initial expert disclosures, another orthopedic surgeon was on his list as a retained expert. (See Moua Decl., Exh. D.) That surgeon, Michael Klein, M.D, F.A.C.S., was designated to testify “about the nature and extent of plaintiff’s injuries and their reasonable and necessary medical treatment…regarding the subject incident, as well as issues of… causation[.]” (Id.) Laber reasons that, because Dr. Katibah had already designated an orthopedic surgeon, his attempt to bring Dr. Van Dolson into the case by way of a

supplemental designation is improper.

Dr. Katibah counters that he only seeks Dr. Van Dolson’s testimony to provide a foundation for the QME Report Dr. Van Dolson drafted after evaluating Laber. That report appears to contain Dr. Van Dolson’s opinion that Laber’s fall at Dr. Katibah’s offices did not necessitate her knee surgery. Dr. Katibah asserts that Laber previously informed him that Dr. Van Dolson had formed opinions about her damages, but not that Dr. Van Dolson held any opinion about causation. Dr. Katibah also asserts that Laber never provided him with Dr. Van Dolson’s QME Report.

In Dr. Katibah’s view, his supplemental designation of Dr. Van Dolson is proper because his (Dr. Katibah’s) initial expert disclosures did not designate Dr. Van Dolson’s QME Report as a subject of expert testimony. This argument lacks merit. To the extent Dr. Katibah seeks Dr. Van Dolson’s testimony solely to lay a foundation for the QME Report, he does not seek “expert” testimony at all. On the other hand, if Dr. Katibah hopes to elicit Dr. Van Dolson’s opinion that Laber’s fall did not necessitate (cause) her knee surgery, then the supplemental designation is improper because Dr. Katibah had already designated an expert to testify on the same subject. Either way, the supplemental designation is not a means to procure Dr. Van Dolson’s testimony.

Dr. Katibah’s supplemental designation of Dr. Van Dolson is stricken.

The court expresses no opinion about the merits of any pending motion to augment Dr.

Katibah’s expert witness list.

Laber’s further motion for an order quashing the notice of Dr. Van Dolson’s deposition in Vancouver is granted as well. For reasons stated above, Dr. Van Dolson has not been properly designated an expert, and the expert discovery deadlines do not apply to his deposition. At this point, non-expert discovery is closed and was closed when Dr. Katibah served notice of the Vancouver deposition. Because the deposition notice is untimely, it is quashed.

Disposition

The motions are granted.

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