Case Number: BC524063    Hearing Date: August 19, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SOPHIA COX, et al.,
Plaintiff(s),
vs.

NORTHRIDGE HOSPITAL MEDICAL CENTER, et al.
Defendant(s).

Case No.: BC524063

[TENTATIVE] ORDER RE. PLAINTIFFS’ MOTION TO COMPEL DEFENDANT GREGORY PALMER, M.D. TO RESPOND TO DEPOSITION QUESTIONS AND REQUEST FOR SANCTIONS

Dept. 92
1:30 p.m. — #42
August 19, 2014

I.
FACTS
Plaintiffs filed a medical malpractice complaint (negligence), on behalf of themselves, and on behalf of their minor child. The principal allegation against defendant is that he misread an X ray when the child was in the hospital emergency room. The allegation is that the child swallowed a popcorn kernel and that it obstructed the airway of her lung. The complaint alleges that the child is now in a vegetative state.
Plaintiffs now move to compel defendant Gregory Palmer, M.D. (“defendant”) to answer two questions and all reasonable follow-up questions. The two questions that were asked of defendant were:
1. “Q. Okay, Now would you also check to determine if one lung presented as being darker in color than the other lung on the chest X ray?
A. Yes.
Q. Okay. And if you found that to be the case, what, to your training and understanding at the time, would that mean, given this patient’s presentation?”
2. “Based upon your training and education, what did it mean to you if one lung presented as being darker in color than the other lung on a chest X ray”?
Defendant objected to question #1 at the deposition that the question was overbroad, an incomplete hypothetical, and called for an expert opinion. There does not appear to be an instruction not to answer in plaintiff’s separate statement.
Defendant asserted the same objection to question #2 and added that it was a hypothetical question (“it’s an expert opinion”). Counsel instructed defendant not to answer “expert questions” and told plaintiff’s counsel that the question could be rephrased but not as a hypothetical question.
Plaintiff argues that the objections were “unsound” for the following reasons: (1) the questions did not ask for expert opinion; (2) the questions asked for defendant’s knowledge and skill “at the time” of the events; (3) it is reasonable and necessary to explore the knowledge and skill of the defendant, a physician, at the time of the treatment; (4) the scope of discovery is broad, for discovery purposes, the scope is broader than for trial purposes; () because possession of knowledge by defendant is an element of the standard of care, plaintiffs were entitled to conduct discovery to determine whether defendant fulfilled that standard of care; and (6) neither question asked for an “after-the-fact” opinion about the standard of care.
Defendants argue that: (1) plaintiff did not comply with the court’s general orders re discovery motions (after filing the opposition, the court held an informal discovery conference on August 15, 2014); (2) with respect to deposition question #1, defendant was not instructed not to answer the question; the question was improper in any event because it called for an expert opinion; the question sought an after-the-fact opinion based on a hypothetical fact; (3) with respect to deposition question #2, defense counsel did instruct defendant not to answer and raises the same objections as above in (2) but basically the objection is that defendant was asked to “express an after-the-fact opinion based on the presented hypothetical fact.”
Plaintiff in reply argues that: (1) deposition question #2 referred to defendant’s understanding (if any) about the meaning of the X ray at the time defendant was treating the patient; (2) plaintiff was not required to lay a foundation before asking his question; (3) defendant’s reliance on the cases he cites is misplaced (see below). Plaintiff also refers to the offer to negotiate and compromise; however, these points are now moot after the court’s informal discovery conference.

II.
DISCUSSION

Plaintiff moves pursuant to California Code of Civil Procedure §2012.480 to compel defendant to answer two questions.
It is beyond any dispute that the scope of discovery is very broad in California, much broader than what is permitted at trial. California Code of Civil Procedure §2017.010 provides:
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence…”
California Code of Civil Procedure §2025.460(c) provides that:
“Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony, or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.”
Defendant objected to both deposition questions but instructed defendant not to answer as to deposition question #2. The issue before the court, therefore, is whether the instruction was proper.
Defendant does not argue that deposition question #2 called for the disclosure of privileged information, which might have been the basis of a proper instruction not to answer. Nor does defendant rely upon any provision of the Evidence Code or the Code of Civil Procedure, relating either to discovery or to expert discovery (California Code of Civil Procedure §2034 et seq.) to argue that deposition question #2 seeks discovery beyond the broad scope of pre-trial discovery.
Pursuant to Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, it is generally improper for counsel to instruct his/her client not to answer based on any objection other than privilege. In Stewart, defendant’s attorney appealed from an order imposing sanctions against him in a wrongful termination case. Defendant’s employee refused to answer questions on the basis that the questions were not calculated to lead to the discovery of admissible evidence. On plaintiff’s motion to compel, the trial court ruled that defendant improperly instructed the witness not to answer (“[t]he proper procedure is to adjourn the deposition and move for a protective order. You don’t assume the role of judge and instruct the witness not to answer a question in a deposition. That is a huge no-no”). Sanctions were imposed on defendant’s counsel. The court of appeal affirmed the imposition of sanctions and in so doing stated the following which is applicable in the instant case:
“Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence [Citation.]” (Emphasis in original) Id. at 1013.
The court of appeal made it clear that even if the questions were designed to elicit irrelevant evidence, irrelevance alone “is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.” (citing former CCP §2025(m).(Emphasis in original) Id. at 1014

In this case, defendant argues that deposition question #2 sought an after-the-fact opinion of an expert. Defendant relies upon three cases, all pre-dating Stewart, to argue that after-the-fact opinions of a non-expert (defendant in this case) are not discoverable and are subject to a proper instruction not to answer.
The court is unaware of any case that defines what an after-the-fact opinion is but it seems that an after-the-fact opinion is the kind of opinion that an expert would give i.e. after the fact of whatever action or omission is at issue. That is not what deposition question #2 sought. It was: “Based upon your training and education, what did it mean to you if one lung presented as being darker in color than the other lunch on a chest X ray.” Defendant was not asked his opinion of whether what he did or did not do was proper and/or met the standard of care. That might be an after-the-fact opinion. Read without context (other than the allegations of the complaint), and without any reference to what preceded or followed the question, the question appears to the court as the following question: “Based upon your training and education, what did it mean to you if one lung had presented as being darker in color than the other lunch on a chest X ray.” In other words, fairly read, the question is what would it have meant to defendant if he had known at the time he was inspecting the X ray that one lung was darker than the other lung. That does not ask for an opinion. The fact that a question is a hypothetical, or contains a hypothetical element or is an incomplete hypothetical, may be a basis to object to it, but without more, there is no basis to instruct a witness not answer it unless the answer would violate a privilege.
Defendant rests his argument on three cases.
Scarano v. Schnoor (1958) 158 Cal.App.2d 612 (“Scarano”) involved a medical malpractice trial, not a discovery dispute. Defendant’s citation to the trial court’s sustaining of an objection to a question at trial as to whether the defendant would have performed the same surgery on the other eye on the basis of what he knew does not help defendant for two reasons. First, at trial in the instant case, as in Scarano, the court can sustain an objection to the kind of question as in deposition #2 if it is asked. Second, the question at trial was what the witness would have actually done in the future, a matter that was irrelevant (i.e. what he would have done) not what (as in deposition question #2) it would have meant at the time had he seen a darker lung on the X ray, a matter which is relevant to his knowledge and training.
County of Los Angeles v. Superior Court of Los Angeles County (Martinez)(1990) 224 Cal.App.3d 1446. Plaintiffs alleged that defendant doctors committed malpractice in connection with a birth. At deposition, defendants objected to questions posed to the doctor defendants as to their present interpretation of medical data on the ground that the time for designating experts had not arrived. The trial court granted the motion to compel. The trial court’s order was stayed based on the principle that discovery orders requiring the revelation of allegedly privileged information may be a proper subject of review by prerogative writ. See Roberts v. Superior Court (1973) 9 Cal.3d 330, 336. The court of appeal stated the rule as follows:
“Questions to the defendant physicians about their impressions and reasons for their action or lack of action at the time the medical procedure was performed are, of course entirely appropriate. Such questions were asked without objection by defense counsel But as the Scarano case makes clear, questions about after-the-fact opinions and impressions of the physicians stand in quite another light.” Id. at 1455-1456
The court of appeals ordered that the trial court set aside its order directing the doctors to testify at deposition as to the medical propriety of their acts. Martinez might be applicable if deposition question #2 had asked if defendant thought that what he had done was correct and/or within the standard of care, i.e. his opinion or impression. Deposition question #2 did not ask that. It asked what it would have meant to defendant if one lung had presented as being darker in color than the other lung on a chest X ray. By itself, the answer was not asking for an expert opinion of the defendant and therefore Martinez is distinguishable. Moreover, the court in Martinez, while laying out the logic of the timeline of expert discovery under CCP §2034, did not address the requirement under CCP §2017.010 that unless a matter were privileged, a party can obtain discovery if it is relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.
Finally, St. Mary Medical Center v. Superior Court of Los Angeles (1996) 50 Cal.App. 4th 1531, a medical malpractice action. Defendant filed a motion for summary judgment. Plaintiff filed a doctor’s declaration in opposition to the motion. Moving parties sought to take the deposition of plaintiff’s doctor, a retained expert. Plaintiffs instructed their doctor not to appear for his deposition because he was a retained expert. Plaintiffs argued that the terms of CCP §2034 applied, i.e. until there was an exchange of experts, plaintiff’s doctor’s deposition was premature. The trial court denied defendant’s motion to compel and the court of appeal issued a writ directing the trial court to set aside its order. The decision was based on a narrow issue—whether in the context of a motion for summary judgment, a deposition could be taken of a retained expert before the time for exchanging of expert information. That is obviously not the case here.

III.
REQUEST FOR SANCTIONS

Plaintiffs request sanctions in their notice of motion. The sanction sought appears to be limited to defendant bearing the cost of the deposition transcript for a reconvened deposition.
IV.
ORDER
Defendant is ordered to respond to deposition question #2. The Court declines to order “all reasonable follow-up questions” because it does not know what that entails; however, the court limits the reconvened deposition to one hour and permits platiffs to ask follow-up questions at the reconvened deposition. Defendant is ordered to pay for the cost of the reconvened deposition transcript.

Dated: August __, 2014

Hon. Elia Weinbach
Judge of the Superior Court