Case Number: BC538692??? Hearing Date: November 07, 2016??? Dept: 98
JACQUELYN EVERETT aka JACQUI EVERETT,
Plaintiff,
vs.
THE RITZ-CARLTON HOTEL COMPANY, LLC, et al.,
Defendants.
CASE NO: BC538692
[TENTATIVE] ORDER RE: PLAINTIFF?S MOTION FOR LEAVE TO AUGMENT EXPERT WITNESS LISTDept. 98
1:30 p.m.
November 7, 2016
On March 10, 2014, Plaintiff Jacquelyn Everett aka Jacqui Everett (?Plaintiff?) filed this action. The parties have exchanged their Expert Witness List and Designation. Plaintiff now moves for leave to augment her Expert Witness List and Designation to add James Tibone, M.D. Plaintiff asserts that Dr. Tibone performed a knee surgery on October 10, 2016 and saw Plaintiff for the first time on August 31, 2016, after the parties? designations were exchanged. Plaintiff seeks to add Dr. Tibone as a non-retained expert witness so that he may present essential evidence relating to the surgery at trial. Trial is currently set for December 7, 2016.
Defendant The Ritz-Carlton Hotel Company, LLC (?Ritz-Carlton?) argues that Plaintiff has been dilatory in seeking leave to augment her designation, pointing out that Plaintiff saw Dr. Tibone in August 2016 and has known that she would undergo surgery with Dr. Tibone since September 30, 2016. Ritz-Carlton contends that it will suffer unfair prejudice if Plaintiff is granted leave because it has already relied upon the testimony of and deposed Plaintiff?s designated experts and it has been prepared to try this matter on several occasions. Ritz-Carlton further contends that the testimony of Dr. Tibone would only serve as cumulative evidence to Plaintiff?s already-designated knee surgeon, Dr. Sobeck.
A court must grant leave to augment or amend an expert witness list 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.
Cal. Code of Civ. Proc. ? 2034.620.
The Court finds that Plaintiff would not in the exercise of reasonable diligence have determined to call Dr. Tibone when the parties exchanged their initial Expert Witness List and Designation. Taking into account the extent to which Ritz-Carlton asserts it has relied on Plaintiff?s initial Expert Witness List and Designation, the Court finds that Defendant will not be prejudiced in maintaining its defense on the merits if leave is granted.
In light of the foregoing, Plaintiff?s Motion is GRANTED, on the condition that Plaintiff make Dr. Tibone available immediately for deposition.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 7th day of November, 2016
Hon. Holly J. Fujie
Judge of the Superior Court