GEORGE STAUB et al., Plaintiffs and Appellants, v. JAMES M. KILEY et al., Defendants and Respondents.
No. C071500
Third Dist.
May 20, 2014
226 Cal. App. 4th 1437
George Staub and Julianne Staub, in pro. per., for Plaintiffs and Appellants.
Thomas G. Minder & Associates, Thomas G. Minder and Randi L. Fujimoto for Defendants and Respondents.
OPINION
HULL, J.—Plaintiffs George and Julianne Staub appeal pro se from the judgment entered in favor of defendants James M. Kiley (Kiley) and the Regents of the University of California (Regents) following defendants’ successful motion for nonsuit.
On appeal, plaintiffs argue the trial court erred in granting defendants’ in limine motion because (1) defendants themselves failed to comply with the expert disclosure demand requirements, and (2) the trial court erred in concluding plaintiffs acted unreasonably in disclosing their trial experts after “a minor and nonprejudicial delay.” Finally, plaintiffs contend that, even if the court refused to allow their designated experts to testify, it should have allowed trial to proceed on the cause of action for “informed refusal.”
We agree with plaintiffs that defendants lacked standing to move to exclude plaintiffs’ experts from testifying at trial, and the trial court erred in concluding plaintiffs so unreasonably failed to comply with the expert disclosure demand that their experts could be properly excluded from testifying. Accordingly, we reverse the judgment and order the matter reinstated.
FACTS AND PROCEEDINGS
A. Pleadings and Overview of Plaintiffs’ Claims
The background facts are summarized from the first amended complaint.
We note that George Staub was the individual who received the allegedly negligent medical treatment by defendants. When referring to those events, we refer to George by his first name.
In May 2008, George was admitted to Mercy Hospital of Folsom with pain and swelling in his left leg and sеvere pain in his left groin. George was treated by Kiley, his primary care physician. Although George was diagnosed with deep vein thrombosis, no ultrasound or other procedure was performed which would have revealed the presence of a condition called May-Thurner Syndrome, treatment of which must begin within a week or two of the first symptoms to be effective. This occurred even though Kiley was informed by
In June 2008, George saw another physician and an ultrasound was performed at Regents’ UC Davis Medical Center. Doctors there observed additional clotting extending in the left groin, but they did not test for May-Thurner Syndrome.
Doctors at Stanford Hospital tested George and discovered he suffered from May-Thurner Syndrome in January 2009, when it was too late for treatment. He now must take anticoagulants for the rest of his life and his pain and symptoms will never resolve.
Plaintiffs initiated this action against Kiley and others for medical malpractice, alleging that defendants’ failure to properly treat George caused his extensive and permanent injuries. They also stated a cause of action for loss of consortium, based on the effect of defendants’ actions on Julianne.
Kiley moved for summary judgment, arguing no triable issues of care exist relative to his liability. He submitted the declaration of a licensed physician specializing in vascular surgery who opined that the medical care rendered to George by Kiley was within the standard of care. Plaintiffs opposed the motion and submitted the declaration of their own medical expert, Dr. Kang, whо opined Kiley overlooked numerous aspects of George‘s medical history suggesting the presence of May-Thurner Syndrome, and breached the standard of care by not following the specialist‘s advice in May 2008 to rule out May-Thurner Syndrome when it would have still been treatable. The trial court denied Kiley‘s motion for summary judgment, and concluded Kiley‘s expert witness declaration was “patently inadequate” and conclusory.
Plaintiffs obtained leave to file a first amended complaint and, in February 2011, they added the Regents (Kiley‘s employer) as a defendant and added two causes of action against Kiley: (1) a claim for fraudulent concealment, based on Kiley‘s alleged failure to inform George that he consulted with a specialist in May 2008 who advised Kiley to test for May-Thurner Syndrome, and (2) a claim for lack of informed consent, based on Kiley‘s alleged failure to inform George that a specialist in May 2008 advised Kiley to test for May-Thurnеr Syndrome, and failed to advise George of the dangers of failing to test for, and timely treat, May-Thurner Syndrome, so that he might make an informed choice to request such testing and treatment.
Defendants answered the first amended complaint, and trial was set for February 14, 2012.
On December 6, 2011, defendants served by mail a demand for exchange of expert witness information pursuant to
Plaintiffs, however, did not serve their exchange of expert information on the date specified in defendants’ demand. The proof of service attached to their response states it was served by mail on January 9, 2012, although defendants later averred it was postmarked January 13 and they received it by fax on January 12 and by mail on January 14. Plaintiffs identified Drs. Fullerton and Ley as their expert trial witnesses; they did not identify Dr. Kang, whose declaration had been submitted in opposition to summary judgment.
The same week, plaintiffs served a notice that due to a family emergency their attorney, Mr. Elstead, would be unavailable between January 14 and January 27, 2012, but could be reached by e-mail or telephone. Elstead also sent a letter to defendant‘s counsel stating that a family emergency would keeр him out of the office until January 27, 2012.
Defendants objected to plaintiffs’ tardy expert witness disclosure. Two days later, defendants moved unsuccessfully ex parte to shorten time on a motion to preclude plaintiffs from calling any expert witnesses at trial. No documents related to defendants’ ex parte motion are in the appellate record.
On February 2, 2012, Attorney Elstead faxed a letter to defense counsel stating that plaintiffs’ experts would be available the following week for deposition. Defendants declined the offer the same day. They responded that plaintiffs’ disclosure of experts was untimely, plaintiffs failed to seek relief from the delay, and plaintiffs’ current offer of depositions did not meet the statutory requirements. Moreover, defendants asserted they had been “severely prejudiced” because such late depositions would not permit the Regents to engage in their customary process of evаluating settlement options by committee.
On the day set for trial, defendants moved in limine to preclude plaintiffs from presenting any expert witness testimony at trial. They argued the order was justified by plaintiffs’ tardy disclosure of expert witnesses and their failure to seek leave from the court to make a belated disclosure. According to defendants, given Attorney Elstead‘s limited availability, the depositions of
Plaintiffs filed an “opposition tо motion in limine to exclude expert testimony and motion to deem late disclosure reasonable,” arguing that their late expert disclosure was not unreasonable and had not prejudiced defendants. They argued the time to disclose experts had been extended by five days from the stated exchange date by operation of
Attorney Elstead denied he acted willfully to obstruct discovery and submitted a declaration explaining his “unusual difficulty” and “unavoidable delay” locating and retaining experts Drs. Fullerton and Ley. Elstead determined in November 2011 to retain Fullerton (rather than Dr. Kang) to opine on the standard of care, but the subsequent holidays delayed Elstead‘s work with Fullerton necessary to secure Fullerton‘s agreement to testify, which Elstead did not obtain until January 9, 2012. Dr. Ley, who lives in Idaho, was travelling in Spain for several months and was unreachable; Dr. Ley did not agree to testify until January 8, 2012. Elstead explained that his unavailability was caused when his brother unexpectedly required cancer treatment and amputation surgery; under all the circumstances, the weeklong delay in expert disclosure was not unreasonable. Plaintiffs also decried defendants’ efforts to influence the court by disparaging Attorney Elstead, who stated his 2005 and 2011 discipline was the result of his paralegal‘s misconduct.
Following an unrecorded hearing, the trial court granted defendants’ motion in limine to preclude plaintiffs from presenting expert testimony at trial.
Dеfendants filed motions for nonsuit (the original and an amended motion), on the grounds plaintiffs’ lack of expert witness testimony prevented them from establishing a prima facie case on any cause of action.
Plaintiffs opposed the motions for nonsuit, and moved separately for reconsideration of the court‘s order precluding their introduction of expert
Thereafter, pursuant to stipulation of the parties and to save the time and expense of selecting a jury, the parties agreed that the trial court could rule on defendants’ motion for nonsuit based upon plaintiffs’ presentation of an exemplar anticipated opening statement. After receiving plaintiffs’ exemplar opening statement and defendants’ objections thereto (and having received no request for oral argument), the trial court granted defendants’ request for nonsuit in its entirety and entered judgment in defendants’ favor.
DISCUSSION
I
General Principles and the Standard of Review
The statutes governing expert witness discovery are part of the Civil Discovery Act. (
The expert witness exchange is triggered by a timely written demand made by any party after the initial trial date is set. (
A party demanding an expert witness exchange “may also include a demand for the mutual and simultaneous production for inspection and
Failure to comply with these requirements can have drastic consequences.
We generally review the trial court‘s ruling on a motion to exclude expert testimony for abuse of discretion, including its determination that a party “unreasonably” failed to comply with an expert witness demand. (Boston, supra, 170 Cal.App.4th at p. 952, italics omitted.) A trial court‘s discretion is always delimited by the statutes governing the particular issue but when the exclusion of expert testimony rests on a matter of statutory interpretation, we undertake a de novo review. (Id. at p. 950; Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 639 [133 Cal.Rptr.3d 167].)
II
The Trial Court Erred in Granting Defendants’ Motion to Exclude Plaintiffs’ Experts from Testifying at Trial
Plaintiffs first contend defendants lacked standing to seek to exclude the testimony of plaintiffs’ experts because defendants themselves failed to “ma[k]e a complete and timely compliance” with the exchange procedures of
Although we are unaware of any case authority explaining the operation of these statutes together, a leading treatise states: “[I]f an expert witness demand is served by mail, the exchange date must be extended accordingly (i.e., 5 days for mail within California, 10 days outside state, etc.). With that extension, the exchange date may be closer to trial than 50 days, leaving less time to complete expert discovery.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013) ¶ 8:1649.3, p. 8J-7 (rev. # 1, 2011).) Defendants’ demand failed to extend the exchange date by five days by operation of
Under these circumstances, plaintiffs are correct that defendants lacked standing to bring a motion under
Even if defendants did have standing to bring a
In Zellerino v. Brown (1991) 235 Cal.App.3d 1097 (Zellerino), the conduct being evaluated was a party‘s production of late, incomplete expert witness information, coupled with refusal to make the experts available for depositiоn. Collectively, this conduct amounted to “a comprehensive attempt to thwart the opposition from legitimate and necessary discovery,” justifying exclusion of evidence. (Id. at p. 1117; see Boston, supra, 170 Cal.App.4th at p. 952 [if court concludes a party “intentionally manipulated the discovery process” to ensure that expert reports were not created until after the specified exchange date, it may find the failure to produce them was unreasonable and exclude the expert‘s оpinions].)
The record here does not support a determination that plaintiffs so unreasonably failed to timely disclose their experts that exclusion of all expert testimony was warranted. Neither plaintiffs nor their counsel engaged in actions that can be characterized as gamesmanship, nor did they engage in a “comprehensive attempt to thwart the opposition from legitimate and necessary discovery,” justifying exclusion of evidence. (Zellerino, supra, 235 Cal.App.3d at p. 1117.) Plaintiffs’ counsel averred he did not determine to change experts (from Kang to Fullerton and Ley) until November 2011, but then had difficulty reaching them over the December 2011 holidays and, as a result of Ley‘s travelling in Spain, was not able to designate them until after the first week in January 2012, close to two weeks after the exchange date contained in the demand. Moreover, shortly after the exchange, plaintiffs offered to make the experts available for deposition, an offеr defendants promptly declined. (Boston, supra, 170 Cal.App.4th at p. 954 [the opportunity for meaningful deposition is one of the circumstances the trial court should consider when making the reasonableness determination].) While counsel‘s late arrangements for experts are not evidence of an ideal practice, they do not show an attempt to thwart defendants’ discovery.
Defendants’ actions, including their refusal to depose plaintiffs’ experts, are not irrelevant. “The behavior оf the party seeking to exclude the
Any unfairness arising from plaintiffs’ tardy expert disclosure was exacerbated by defendants’ refusal to depose plaintiffs’ experts. Defendаnts made a strategic choice not to depose plaintiffs’ experts on the grounds the disclosure was late and depositions so close to the trial date would not permit the Regents to engage in their customary process of evaluating settlement options by committee; defendants made the same argument in support of their motion to exclude plaintiffs’ experts from testifying. We do not agree that a party‘s ability to conform to its preferred deсisionmaking process necessarily excuses its refusal of a deposition offer; further, we are certain it does not weigh in favor of finding plaintiffs’ actions “unreasonable” so as to exclude their experts’ testimony. And the Regents’ preferred decisionmaking process plainly provides no ground for Kiley, the individual physician defendant, to either reject plaintiffs’ offer to depose their witnesses or to argue in favor of excluding plaintiffs’ experts, as he had no dеcisionmaking process with which to conform.
In light of the foregoing, we conclude the trial court abused its discretion in sustaining defendants’ objection to plaintiffs’ experts pursuant to
Our conclusion in this regard is bolstered by the fact that the order excluding plaintiffs’ experts from testifying at trial was in effect a terminating sanction, as it eviscerated plaintiffs’ case. The “general rule [is] that a terminating sanction may be imposed only after a party fails to obey an order cоmpelling discovery....” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426 [86 Cal.Rptr.3d 457].) Here, there was no history of discovery abuse by plaintiffs which would warrant the imposition of a terminating sanction. This case is not remotely on a par with the type of case in which a sanction of this type is warranted. (Cf. Zellerino, supra, 235 Cal.App.3d at p. 1117 [“near-total failure” to comply with requirements of expert disclosure statute].)
Having concluded the trial court abused its discretion in finding plaintiffs unreasonably failed to disclose their experts, we need not address the other contentions of error raised by plaintiffs.
The judgment is reversed with directions to reinstate the action. Plaintiffs shall recover their costs on appeal.
Blease, Acting P. J., and Duarte, J., concurred.