Case Name: Billy Usher, et al. v. David Dinh Yeh, M.D., et al.

Case No.: 16CV296817

Motion to Compel the Deposition of Witness Nancy Kessler and Request for Monetary, Evidence, and Issue Sanctions

Factual and Procedural Background

This is a medical malpractice action brought by patient Billy Usher and his wife Angelina Usher (collectively, “Plaintiffs”) against defendants David Dinh Yeh, M.D. (“Dr. Yeh”) and Good Samaritan Hospital (collectively, “Defendants”). In 2015, Dr. Yeh operated on Mr. Usher’s hand using a “MANOS device” “for a carpal tunnel repair.” (Second Amended Complaint (“SAC”) at pp. 4, 6.) Plaintiffs allege Dr. Yeh did not adequately disclose information about the MANOS device or his experience and skill using it. (SAC at pp. 6-7.) Additionally, during the surgery, Dr. Yeh severed Mr. Usher’s median nerve. (SAC at p. 4.) Subsequently, Mr. Usher told Dr. Yeh he had been experiencing “more pain and electrical sensations,” but Dr. Yeh did not “perform any diagnostic tests that would have revealed the nerve was severed.” (Ibid.) A different surgeon attempted to repair the nerve but could not successfully do so. (Ibid.) As a result of this permanent injury, Mr. Usher accrued medical expenses, lost wages, and experienced pain and suffering, and Mrs. Usher suffered a loss of consortium. (Ibid.) Plaintiffs assert causes of action against Defendants for: (1) negligence; (2) loss of consortium; (3) breach of fiduciary duty; and (4) fraudulent concealment.

Discovery Dispute

Dr. Yeh is a defendant in two separate actions, one by Plaintiffs (“Usher Action”) and another by a different plaintiff, Nancy Kessler (“Kessler”) (“Kessler Action”). Dr. Yeh is represented by the same counsel in both actions.

On October 31, 2017, Plaintiffs in the Usher Action noticed the deposition of Kessler to occur on November 20, 2017, subsequently amending the deposition to occur on December 4, 2017. The videotaped deposition of Kessler commenced on December 4, 2017 with questioning by Plaintiffs’ counsel. When Dr. Yeh’s counsel began cross-examination, Kessler’s counsel objected stating the questioning exceeded the scope of deposition “as agreed” between Plaintiffs’ counsel and Kessler’s counsel. Dr. Yeh’s counsel indicated he was not included in any discussions regarding the scope of Kessler’s deposition. Dr. Yeh’s counsel was not permitted to cross-examine Kessler as Kessler and her counsel walked out of the deposition.

On January 11, 2018, Dr. Yeh’s counsel wrote a letter to Plaintiffs and Kessler’s counsel requesting Kessler’s deposition resume and Dr. Yeh’s counsel be allowed to cross-examine.

On February 1, 2018, Dr. Yeh served a deposition subpoena and notice of deposition for Kessler’s deposition to occur on April 16, 2018.

On April 10, 2018, Kessler’s counsel wrote a letter to Dr. Yeh’s counsel objecting to Kessler’s deposition.

On April 11, 2018, Dr. Yeh’s counsel responded stating Dr. Yeh made no agreement with regard to the scope of Kessler’s deposition and Dr. Yeh did not have the opportunity to cross-examine Kessler.

On April 16, 2018, neither Kessler, Kessler’s counsel, nor Plaintiffs’ counsel appeared for Kessler’s noticed deposition.

Between April 19, 2018 and April 23, 2018, Dr. Yeh’s counsel and Kessler’s counsel exchanged correspondence but did not reach any agreement with regard to Kessler’s deposition.

II. Defendant Dr. Yeh’s motion to compel deposition of Kessler is GRANTED.

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., §2025.480, subd. (a).)

As a preliminary matter, Kessler contends Dr. Yeh’s motion to compel is untimely. “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., §2025.480, subd. (b).) Kessler argues this motion is untimely as it is filed more than 60 days following the December 4, 2017 deposition. Kessler’s reading of the time limit is incorrect. The deadline is 60 days “after the completion of the record of the deposition,” not completion of the deposition itself. “It is unclear whether the deposition record is ‘completed’ when the reporter sends notice that the transcript is available for review or only after the expiration of time to sign or correct the transcript.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶8:801, p. 8E-142.) There is no evidence before this court as to when the deposition record was completed. Consequently, the court does not find Dr. Yeh’s motion to be untimely.

As a further preliminary matter, Kessler contends Dr. Yeh did not adequately meet and confer. In particular, Kessler contends the January 11, 2018 correspondence sent by Dr. Yeh’s counsel amounted to a threat rather than a genuine attempt at informal resolution. Specifically, Dr. Yeh’s counsel wrote, “If Ms. Kessler is not made available for cross-examination on her new claims, I will be filing a motion with the court asking that the testimony of Ms. Kessler be excluded, not only in the Usher matter but in the Kessler matter as well.”

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §2016.040.) A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.)

Although Kessler viewed the statement above to be threatening, the court’s review of the declaration by Dr. Yeh’s counsel indicates a reasonable and good faith attempt at informal resolution. The January 11, 2018 correspondence was merely the beginning of meet and confer efforts. It appears Dr. Yeh’s counsel exchanged multiple correspondence with Kessler’s counsel through April 23, 2018.

“A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶8:814, p. 8E-145.)

Kessler contends her refusal to answer Dr. Yeh’s counsel’s questioning was proper because Dr. Yeh intended to go beyond a limited scope and instead sought to question her on private matter, i.e., her medical condition, which Kessler contends is not at issue in the Usher Action. Kessler explains to this court that Dr. Yeh already had multiple opportunities to question her with regard to her medical condition during her depositions in the Kessler Action. However, as a non-party to the Usher Action, Kessler maintains her medical condition is private and she is not required to answer any questions pertaining to her medical condition.

Even if correct, Kessler has not substantiated her unilateral termination of the deposition and refusal to answer questions directed to her by Dr. Yeh’s counsel. In reviewing the deposition record, Kessler answered only one question by Dr. Yeh’s counsel. (Q: As you sit here today, all of the information that you have provided in litigation has been truthful and honest; correct? A: Yes.) Kessler was instructed by her counsel not to answer the two other questions posed by Dr. Yeh. (Q: …After your deposition was taken in the case where you have filed a lawsuit against Dr. Yeh, did you ever make any changes to that deposition testimony?; Q: So if we look at your deposition testimony today and compare it with the previous deposition testimony as well as your answers to interrogatories, we’re going to see that you provided the same if not identical information, correct?) Neither of those questions concern Kessler’s medical condition or medical history.

Kessler objects further on the basis that a further deposition is oppressive since she has been deposed by Dr. Yeh’s counsel twice in the Kessler Action and once in the Usher Action. To justify an objection based on undue burden/ oppression, a responding party must demonstrate that the amount of work is so great and the utility of the information sought so minimal that it would defeat the ends of justice to require the answers. (Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.) Although deposed twice in the Kessler Action, Kessler has not submitted to questioning by Dr. Yeh in the Usher Action except to answer the one question identified above. In this court’s opinion, this does not amount to oppression.

Accordingly, Dr. Yeh’s motion to compel the deposition of witness Nancy Kessler is GRANTED. Nancy Kessler shall appear and submit to deposition by defendant Dr. Yeh within 30 calendar days from entry of order.

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §2025.480, subd. (j).) In connection with the motion to compel, Dr. Yeh requests the court impose monetary sanctions against Kessler, Kessler’s attorney, and Plaintiffs’ attorney. Dr. Yeh’s counsel contends he should be compensated for defense costs related to the December 4, 2017 deposition along with the cost of transcript ($987.10), and for the defense costs related to the April 16, 2018 deposition along with the cost of the transcribed statement of record ($378.08). Dr. Yeh’s request for monetary sanctions is GRANTED, in part. Kessler’s counsel shall pay $400 to Dr. Yeh within 30 calendar days from entry of order. Since Kessler did not prevail, Kessler’s request for monetary sanctions is DENIED.

Dr. Yeh prematurely and unnecessarily incurred costs related to the April 16, 2018 deposition. Similarly, Dr. Yeh’s request for a monetary sanction against Kessler pursuant to Code of Civil Procedure sections 2020.240 and 1992 is DENIED. “A deponent who disobeys a deposition subpoena in any manner described in subdivision (c) of Section 2020.220 may be punished for contempt under Chapter 7 (commencing with Section 2023.010) without the necessity of a prior order of court directing compliance by the witness. The deponent is also subject to the forfeiture and the payment of damages set forth in Section 1992.” (Code Civ. Proc., §2020.240.) “A person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action.” (Code Civ. Proc., §1992.)

Dr. Yeh also requests issue and evidentiary sanctions in the event Kessler does not appear for deposition. The court deems such a request to be premature. Accordingly, Dr. Yeh’s request for issue and evidentiary sanctions is DENIED.