Case Number: PC053211    Hearing Date: July 10, 2014    Dept: 92

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

DANIEL ESPINOZA,
Plaintiff(s),
vs.

MAGIC MOUNTAIN, LLC, et al.,

Defendant(s).

CASE NO: PC053211

[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION TO AUGMENT EXPERT WITNESS LIST

Dept. 92
1:30 p.m. — #19
July 10, 2014

Plaintiff, Daniel Espinoza’s Motion to Augment Expert Witness List is Denied.

1. Background Facts
Plaintiff, Daniel Espinoza filed this action against Defendant, Magic Mountain, LLC for negligence, premises liability, products liability, and breach of warranty. The action arises out of an incident at Defendant’s theme park; Plaintiff was riding a roller coaster known as the Ninja, when a bot or similar piece of metal broke loose from the ride and struck Plaintiff in the left eye and face. The impact caused damage to Plaintiff’s eye.

2. Initial Notes
Both parties attached numerous exhibits to the moving and opposition papers, but neither party tabbed the exhibits in compliance with CRC 3.1110(f). This failure has made reviewing the moving and opposition papers very difficult for the Court. The parties are ordered to ensure compliance with the Rules of Court in the future.

Defendant timely filed and served opposition to the motion on 6/26/14. Per CCP §1005(b), any reply to the opposition was due on or before 7/02/14. Plaintiff filed and served his reply papers on 7/07/14, five days late. The Court has not considered the late-filed reply papers.

3. Expert Witness Designation History
On 3/06/14, Defendant served its expert designation. The designation included two experts – Charles Bain, BEng., M.D., CCFP, and Glenn Oekler, M.D. Bain was designated to testify concerning biomechanical issues and medical causation issues. Oekler was designated to testify concerning Plaintiff’s medical condition.

On 3/10/14, Plaintiff served his expert designation. Plaintiff designated only one expert – Charles Aronberg, M.D. Aronberg is an ophthalmologist, and was designated to testify concerning Plaintiff’s medical condition only. Plaintiff also designated three non-retained experts, including Anthony Arnold, MD, a treating ophthalmologist.

On 3/28/14, Plaintiff served a timely supplemental designation of experts, changing Dr. Arnold from a non-retained expert to a retained expert. This supplemental designation was in response to Defendant’s designation of Bain, and Arnold was to testify on medical causation issues.

At this time, Plaintiff moves for leave to substitute John Gardiner, Ph.D., P.E. for Dr. Arnold as a biomechanical expert, contending Plaintiff learned, after substituting Dr. Arnold, that Dr. Arnold’s contract prohibits him from testifying as a retained expert, and he can only testify as a non-retained (percipient) expert.

4. Law Regarding Leave to Augment Expert Designation
A party who has engaged in a timely exchange of expert witness information may move to add the name and address of a subsequently retained witness or to amend the statement of the testimony a previously designated expert is expected to give. The motion must be accompanied by a declaration showing a reasonable and good faith attempt at an informal resolution of each issue presented. (CCP §2034.610.)

The court may grant the motion, “after taking into account the extent to which the opposing party has relied on the list of expert witnesses,” only if it determines that the opposing party will not be prejudiced, and that the moving party:
(1) Either (a) would not in the exercise of reasonable diligence have decided to call that expert witness or to offer the witness different or additional testimony, or (b) failed to decide to call the witness, or to offer the witness different or additional testimony, as a result of mistake, inadvertence, surprise, or excusable neglect;
(2) Made the motion promptly; and
(3) Promptly served on all other parties a copy of witness lists and declarations.

The order must be conditioned on the moving party making the expert available immediately for a deposition under CCP 2034.620(d), “and on such other terms as may be just.” For example, the order may allow a party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, may continue the trial for a reasonable period of time, or may award costs and litigation expenses to a party who opposes the motion. (CCP §2034(d).)

5. Excusable Neglect
Plaintiff argues he failed to designate Gardiner as a result of excusable neglect. He contends he designated Dr. Arnold as a biomechanical expert in response to Defendant’s designation of Dr. Bain, and subsequently learned that Dr. Arnold’s contract prohibits him from acting as a retained expert, and he can only act as a percipient witness.

Plaintiff’s argument fails for a number of reasons. First and foremost, Dr. Arnold is an ophthalmologist. Plaintiff fails to explain why he ever believed Dr. Arnold was qualified to testify concerning biomechanical issues in the first instance. If Dr. Arnold was not qualified to testify concerning biomechanical issues in the first instance, then substituting him with an expert with entirely different credentials and qualification (John Gardiner has a Ph.D. in bioengineering and is a licensed professional engineer) is not “excusable.”

Second, Plaintiff does not explain why his attorney failed to discuss Dr. Arnold’s ability to act as a retained expert, as opposed to a percipient witness, with him at the time he retained Dr. Arnold as an expert witness. He claims this was a mistake, but fails to provide any details concerning their initial conversation concerning retention, their subsequent conversations, etc., which would clarify how this mistake occurred.

Third, Plaintiff’s counsel’s declaration lacks any detail concerning how he learned that Dr. Arnold actually could not work as an expert witness; the declaration merely states that Counsel “subsequently learned” that Dr. Arnold could not do so, but no details concerning when Counsel obtained this information or how it was obtained is provided in the declaration.

6. Prompt Motion
Even if the Court were inclined to find that Plaintiff showed excusable neglect, it does not appear Plaintiff made the motion promptly after he learned of the problem. As noted above, Plaintiff’s attorney fails, in his declaration, to state when he learned that Dr. Arnold could not testify as a retained expert. Additionally, it appears the parties began discussing the possibility of amending the expert witness designation in early April. See Declaration of Defense Counsel, ¶¶11 and 12, and Exhibit E thereto. It is clear that they were discussing the issue no later than May 6, 2014, as Exhibit F to the opposition is a letter that states, in no uncertain terms, that Defendant does NOT agree to any amendment to the supplemental designation.

Plaintiff did not file his motion until 6/12/14, over a month after Defendant firmly stated it would not agree to an amendment of the supplemental designation, and apparently two months after the issue was first addressed. This is not “prompt.”

To the extent Plaintiff addresses this issue, he contends there has been no prejudice as a result of the failure to move promptly. Prejudice is a separate requirement in order to grant a motion for leave to augment an expert witness list; it is not a requirement in combination with the obligation to move promptly.

7. Conclusion
Plaintiff failed to show that the failure to designate a biomechanical expert was the result of excusable neglect. Plaintiff also failed to make his motion promptly upon discovery of the need to amend the designation. The motion for leave to augment the expert witness list is therefore denied.

Dated this 10th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court