Lawzilla Additional Information: Plaintiff is represented by attorney Joe Carcione

17-CIV-00862 WILLIAM HOY, ET AL. VS. STANFORD HEALTH CARE, ET AL.

WILLIAM HOY STANFORD HEALTH CARE
JOSEPH W. CARCIONE DAVID SHEUERMAN

PLAINTIFFS MOTION ORDER COMPELLING COMPLETION OF THE DEPOSITION OF DEFENDANT GARY STEINBERG M.D. TENTATIVE RULING:

Plaintiff’s motion to compel a subsequent deposition of Defendant Gary Steinberg is DENIED.

Plaintiff contends that the defense “wrongly limited” Dr. Steinberg’s deposition to four hours. The facts indicate, however, that Plaintiff’s counsel limited Dr. Steinberg’s deposition to this period. In a January 29 letter to Plaintiff’s counsel, defense counsel stated: Gary Steinberg, M.D. is available on 3/7 from 2:00 p.m. – 6:00 p.m. at Stanford. Unfortunately, this is the only available weekday Dr. Steinberg has within the next couple of months. If you are not available on this date, we will have to schedule his deposition on a Saturday. Please let us know.

[Dolinski Decl., Ex. E] Plaintiff’s counsel responded by noticing Dr. Steinberg’s deposition for “March 7, 2019 at 2:00 p.m.” As a result, considering defense counsel’s letter stating that Dr. Steinberg would be available for four hours on March 7, Plaintiff’s counsel implicitly consented to a four-hour deposition of Dr. Steinberg on March 7. Additionally, notwithstanding counsel’s implicit consent to a four-hour deposition, defense counsel stated that the deposition could go as long as necessary so that it could be completed on March 7. [Cowden Decl., ¶ 3] Plaintiff’s counsel, however, ended the deposition at 6:00, stating as follows: [T]he last time my phone went off here a few minutes ago. It was my wife, and I know why she’s calling me, and I told her I would be home by 6:15. I live close is the good news, but I was told that they would be able to go to 6:00 o’clock and that was it. I appreciate the case by your counsel that you are willing to stay longer. . . But I’m going to indicate that because of the fact that I was told it was going to go to 6:00 o’clock and that’s what I told her it was going [to], and that I do have more questions to ask and I do – the way I understand the Code of Civil Procedure, [we] have a right to three more hours of deposition. [Dolinski Decl., Ex. J, p.180-81] The Code of Civil Procedure permits one deposition, limited to seven hours of total testimony. Cal. Civ. Proc. Code §§ 2025.290; 2025.610. Plaintiff has presented no authority indicating that the seven hours may be divided among multiple days. Because Plaintiff implicitly consented to a four-hour deposition, and because he then unilaterally terminated the deposition after four hours, he cannot now complain that he did not receive the full seven hours permitted by CCP § 2025.290.

Plaintiff also contends that a subsequent deposition is necessary because the defense did not provide a timely response to discovery requesting the start and finish times of the surgeries performed by Dr. Steinberg. However, Plaintiff chose to proceed with the deposition despite the fact that the responses had not been provided. Further, Plaintiff was able to ask Dr. Steinberg about overlapping surgeries on the date of Plaintiff’s procedure. Dr. Steinberg testified that he only stays for critical parts of a surgery, that Medicare permits overlapping surgeries, that he was in the operating room for the critical parts of Plaintiff’s surgery, and that he was not there for non-critical parts, for example, closure of the skin. [Dolinski Decl., Ex. J, p.85-86] Plaintiff has not identified any specific further questioning regarding the timing of Plaintiff’s surgery that would be reasonably calculated to lead to the discovery of admissible information.

Finally, Plaintiff contends that defense counsel improperly instructed Dr. Steinberg not to answer questions regarding whether forceps used during the surgery could have caused Plaintiff’s bleed, on the grounds that an answer would call for expert testimony. Dr. Steinberg responded to this line of questioning by stating “We don’t know why he bled.” Plaintiff has not identified any further line of questioning that would be reasonably calculated to lead to the discovery of admissible information. For the foregoing reasons, Plaintiff has not demonstrated good cause for a subsequent deposition.

Plaintiff’s objections to Defendant’s evidence are SUSTAINED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.