Case Number: BC514989 Hearing Date: September 23, 2019 Dept: S27

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

WALTE H. O’ROURKE, ET AL.,

Plaintiff,

v.

NAYYER Z. ALI, M.D., ET AL.,

Defendant.

Case No. BC514989

MOTION TO DESIGNATE EXPERT WITNESS

TENTATIVE RULING

Date: September 23, 2019

Department 27

MP: Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc.

OP: Plaintiffs Walter H. O’Rourke and Wendy L. O’Rourke

Service = ? – motion hearing set by court on September 9, 2019

On September 9, 2019, Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc. filed an ex parte application for an order regarding the designation of their expert cardiologist, C. Alan Brown, M.D. Defendants requested the court grant the ex parte application and issue an order that Dr. Brown is a properly designated witness who can testify at trial on the issue of Plaintiffs’ damages and Life Care Plan. Plaintiffs filed opposition to the ex parte application. The court ordered Defendants’ ex parte application for an order designating their expert be set on a noticed motion. The court scheduled the hearing on the motion for September 23, 2019, and ordered that moving papers were to be filed by September 13, 2019 and opposition by September 18, 2019. (Court’s 9/9/19 Minute Order.)

RELEVANT BACKGROUND

This is a medical malpractice case with a long procedural history.

INTRODUCTION

Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc. (collectively “Defendants”) request the court issue an order that C. Alan Brown, M.D. (“Dr. Brown”) is a properly designated expert witness who can testify at trial on the issue of Plaintiffs’ damages and Life Care Plan.

STANDARD

C.C.P. §2034.260 provides, as follows:

(a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange.

(b) The exchange of expert witness information shall include either of the following:

(1) A list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial.

(2) A statement that the party does not presently intend to offer the testimony of an expert witness.

(c) If a witness on the list is an expert as described in subdivision (b) of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain all of the following:

(1) A brief narrative statement of the qualifications of each expert.

(2) A brief narrative statement of the general substance of the testimony that the expert is expected to give.

(3) A representation that the expert has agreed to testify at the trial.

(4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and its basis, that the expert is expected to give at trial.

(5) A statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.

C.C.P. §2034.300 provides, as follows:

Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

C.C.P. §2034.610 provides, as follows:

(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do 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.

(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.

(b) A motion under subdivision (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.

(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

C.C.P. §2034.620 provides, as follows:

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.

(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.

(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.

ANALYSIS

Defendants argue they designated Dr. Brown as an expert witness in full compliance with the requirements set forth in C.C.P. §2034.260. However, the evidence before the Court shows Defendants de-designated or withdrew Dr. Brown as an expert witness for strategic purposes over one year ago (in June 2018). (Declaration of Meadows ¶¶3, 7, 9-19; Exhibits 4-8.) (Declaration of Pittman ¶¶5-6; Exhibits C-D.) The evidence shows Defendants de-designated Dr. Brown because they believed Dr. Brown’s opinions would be duplicative of “co-defendant’s cardiologist Dr. Kern and thus would not be necessary.” (Declaration of Pittman ¶5.)

Defendants contend that Dr. Ken unexpectedly would not testify as to damages and Plaintiffs’ Life Care Plan and, as a result, Dr. Brown’s testimony was needed to address Plaintiffs’ damages and Life Care Plan. (Declaration of Pittman ¶7.) According to Defendants, they notified Plaintiffs’ counsel on August 26, 2019, that they intended to call Dr. Brown as a witness and provided multiple dates, times, and locations for his deposition to be taken before expert discovery closes on September 30, 2019. (Declaration of Pittman ¶8; Exhibit E.) However, the evidence before the court shows Defendants were aware, as early as October 2018, that Dr. Kern would not testify as to Plaintiffs’ damages and Life Care Plan. Dr. Kern, at his deposition on October 1, 2018, testified he would not be expressing any opinions as it related to Plaintiff Walter H. O’Rourke’s current prognosis, future cardiac needs, current life expectancy or prior life expectancy absent the acute cardiac event. Dr. Kern’s opinions would be limited to what a reasonable cardiologist would do had one been called during Plaintiff Walter H. O’Rourke’s admission to Community Hospital Long Beach prior to “Dr. Mike” being called, essentially a period of approximately 12 hours. (Declaration of Meadows ¶23; Exhibit 9.) Dr. Kern, during his April 8, 2019 deposition, reiterated that he would not be expressing opinions on Plaintiff Walter H. O’Rourke’s prognosis, Life Care Plan, or things of that nature. (Declaration of Meadows ¶24; Exhibit 10.)[1] Defendants did not explain why they waited until August 26, 2019, less than two months before trial, to attempt to re-designate Dr. Brown.

Defendants argue there is no legal authority for the exclusion of Dr. Brown as an expert. However, as discussed above, Defendants de-designated Dr. Brown as an expert witness for strategic reasons and Defendants did not explain why they waited until August 26, 2019, to attempt to re-designate Dr. Brown as an expert. Moreover, Defendants’ attempt to re-designate Dr. Brown will prejudice Plaintiffs, especially considering Defendants waited until just before trial to attempt to re-designate Dr. Brown as an expert and did not provide the court with a reason why they waited so long to attempt to re-designate Dr. Brown as an expert. Further, Plaintiffs submitted evidence that by the time Defendants’ counsel decided to “change their plan” on August 26, 2019, all of Plaintiffs’ expert depositions in this case had been completed, with the deposition of Plaintiffs’ final damages expert being completed on August 21, 2019. (Declaration of Meadows ¶¶20-21.) Plaintiffs submitted evidence that all of Defendants’ medical experts’ depositions and their economist’s deposition have now been completed as well, with only Ms. Olzack’s deposition remaining, whose final Life Care Plans were produced prior to Mr. Vavoulis’ deposition and were documents upon which he relied. (Declaration of Meadows ¶¶20-21.)

Based on the foregoing, Defendants’ request is denied.

CONCLUSION

Defendants’ request for an order that Dr. Brown is a properly designated expert witness who can testify at trial on the issue of Plaintiffs’ damages and Life Care Plan is denied.

DATED: September 23, 2019 _____________________________________

MARK C. KIM Judge of the Superior Court

[1] Plaintiffs also submitted evidence Defendants had been furnished with a draft of Plaintiffs’ Life Care Planner’s Life Care Plan at session one of Dr. Schapira’s deposition on June 15, 2018, and, therefore, Defendants were aware of the contents of the plan and the fact that Dr. Schapira would be testifying as to the same before Defendants de-designated Dr. Brown as an expert. (Declaration of Meadows ¶22.) Plaintiffs submitted evidence Defendants were furnished with Plaintiffs’ final Life Care Plan as of May 31, 2019. (Declaration of Meadows ¶22.)