Milner v. Regents of U.C.
Filed 4/11/13 Milner v. Regents of U.C. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
LARRY D. MILNER, SR.,
Plaintiff and Appellant,
v.
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant and Respondent.
D060037
(Super. Ct. No. 37-2008-00078431-
CU-PO-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Luis R. Vargas, Judge. Reversed.
Plaintiff
and appellant, Larry D. Milner, Sr. (Plaintiff) sued defendant and respondent,
The Regents of the University of California (the Regents) on medical
malpractice theories arising out of the death of his 29-year-old son, Larry
Milner, Jr. ("Larry Jr."), who was hospitalized at the Regents'
University of California San Diego Medical Center and being treated for a variety
of medical problems. Since Plaintiff was representing himself in
the trial court and was out of the country on military deployment after he
filed his complaint, the court granted several continuances of the trial
date. The month before trial, the court
denied a summary judgment motion by the Regents, after Plaintiff supplied a
declaration about causation of harm from a retained expert medical witness.
At trial
call, the Regents obtained judgment on their motion for nonsuit, following the
trial court's granting of their motion in limine that disallowed any late
designation of Plaintiff's expert medical witness. (Code Civ. Proc., § 2034.720; all further statutory
references are to the Code of Civil Procedure unless otherwise specified.) Without that expert being designated,
Plaintiff could not address at trial the element of causation of injury from
the alleged medical negligence. (
(2003) 114 Cal.App.4th 1108, 1118 (Jennings).)
Plaintiff
challenges the resulting judgment, contending it was an abuse of discretion for
the trial court to exclude his expert from testifying. He argues that his "delay in designating
that expert was, at most, an honest mistake and was not unreasonable under
controlling law," specifically, section 2034.720. Plaintiff relies on that section to argue
that "other, more appropriate alternatives existed to address the Regents'
objection to Dr. [Stephen L.] Fischer's testimony at trial," such as
imposition of terms and conditions for permitting the late designation
(§ 2034.720, subd. (d)), since the Regents had become aware of the content
of Dr. Fischer's proposed testimony at trial, through the summary judgment
proceedings.
Plaintiff
consequently argues the trial court erred in granting the Regents' nonsuit
motion, since Plaintiff could presumably have presented sufficient expert
opinion and nonexpert evidence from which a trier of fact could have found
causation of the harm from the actions or inactions of the Regents.
We agree
with Plaintiff that given the Regents' advance knowledge of the identity of
Plaintiff's expert witness and his views, and in light of the difficulty
evidenced in the record about Plaintiff's problems in navigating trial
procedure, the trial court abused its discretion in excluding the expert
testimony, since there was no showing of undue prejudice to the Regents in
allowing a late designation conditioned on a reasonable process for deposition. On this record, it was inconsistent for the
trial court to end the case in this manner when it had previously exercised its
discretion to allow continuances, to attempt to settle the case, and otherwise
to accommodate the needs of Plaintiff in representing himself. The trial court did not adequately apply the
statutory criteria in section 2034.720, the nonsuit was unwarranted, and we
reverse the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
A. Larry Jr.'s Illness and Medical Care
Larry Jr.
suffered from numerous ailments, including lupus, anemia, and congestive heart
failure. In August 2006, he had
received a kidney transplant and was required to take immunosuppressive
medications to prevent rejection of the organ.
This type of medication is known by physicians to make a patient more
susceptible to opportunistic infections.
In January
2007, Larry Jr. was being treated for such an infection by the Regents' staff,
and he was admitted to the hospital and given broad spectrum antibiotics.
After a period of time, he was discharged to a skilled nursing
facility for continued antibiotic treatment.
During treatment, he was given a chest x-ray that revealed a 4.l cm.
mass in his lung, suggesting there was a growth or neoplasm there.
During
February 2007, Larry Jr. was receiving antibiotics and being monitored by
Regents' physicians. He went to the
infectious disease clinic on February
20, 2007 for further tests and evaluation and the doctors diagnosed
anemia-related side effects from the powerful antibiotics he had received. The
next day, after he was readmitted to the hospital, another chest x-ray
showed there was a 10 cm. lung mass, where the smaller one had been. A
radiology report comparing the two x-rays indicated that the size of that mass
was "unchanged."
Larry Jr.
soon became sicker and was moved to the hospital's critical care unit
(CCU). He was suffering from compromised
breathing and limited heart function. He
had a heart attack and was later pronounced dead.
At autopsy, the pathologist
determined the cause of death to be septic shock, secondary to a
"disseminated zygomycosis infection" (a large fungal infection) in
the lung and heart tissues, and a background bacterial infection. This type of large fungal infection will
normally be fatal unless aggressive treatment is quickly initiated through the
introduction of anti-fungal medications.
Immunocompromised patients whose immune systems have been further
depressed through recent antibiotic use are particularly vulnerable to such
infections.
B. Litigation and Trial Continuances; Regents'
Expert Designation
Acting in propria persona, Plaintiff
filed his medical malpractice
complaint against the Regents in February 2008. In April 2009, he obtained counsel, who filed
a first amended complaint (FAC) alleging wrongful death, in that Larry Jr.
suffered from a deadly fungal lung infection, which was not properly diagnosed,
monitored, or treated by his health care providers. Plaintiff alleged that the knowledge gained
by the Regents' staff members about this patient's medical history, including
the compromised nature of his immune system, imposed upon them a heightened
obligation to timely diagnose and actively treat the presence of a rapidly
growing fungal infection in his lung.
The Regents filed an answer and discovery began. At a hearing on March 23, 2010, the court set a trial date of September 24, 2010, along with other
calendar dates. The expert witness
exchanges were scheduled for July 16 and July 30, 2010.
During much
of the litigation, Plaintiff was employed as an active duty naval officer and
was deployed in the South Pacific.
Plaintiff had difficulty retaining counsel to pursue the case in his
absence, which he blamed upon the complexity of the case and the financial
limitations on recovery posed by medical malpractice regulations. In April 2010, the Regents filed a summary
judgment motion and obtained a hearing date.
The Regents complied
with the original expert designation date, and identified their expert as Dr.
Gonzalo R. Ballon-Landa, who is an internist with a subspecialty in infectious
disease, who has been in private practice as an infectious disease consultant
since 1983.
At hearings
in June and September 2010, Plaintiff's counsel sought to withdraw and the
court told Plaintiff he needed to retain a new attorney by the end of October
2010. Plaintiff got new military orders
and returned to California by October 1, 2010. The trial date was continued from October 15, 2010 to January 21, 2011. Plaintiff could not find new counsel and
continued to represent himself. At a
continuance request filed November
29, 2010, Plaintiff represented that he had found a medical expert,
Dr. Fischer from Louisiana, to
prepare a declaration in opposition to the summary judgment motion.
Under those
circumstances, the court granted Plaintiff's request for another continuance of
the trial date, from January 2011 to April 2011. The parties agreed to continue the hearing
date for the summary judgment motion to March 11, within 30 days before
trial. The December 1, 2010
parte request to continue "all dates," moving the summary judgment
from December 2010 to March 11, 2011, and continuing trial until April 15,
2011. The record is unclear about
whether the expert exchange dates, originally set for July 16 and 30, 2010 (for
a Sept. 2010 trial) were also continued, as the minute order does not say.
C. Summary Judgment Motion; Continuance;
Plaintiff's Expert Designation
In support of the Regents' summary judgment motion,
they argued that any alleged negligence on the part of their health care
providers did not cause the death of Larry Jr.
Their expert, Dr. Ballon-Landa, provided a declaration stating he had
reviewed five volumes of patient records dating back to 2001, and was qualified
to render an opinion on causation issues.
He summarized the treatment that Larry Jr. received from January 13,
2007 until his death, and gave his opinion that Larry Jr.'s pre-existing
medical conditions were a significant factor in the development of the deadly
fungal infection, as well as his inability to fight it. This kind of infection has an extremely high mortality
rate, and 50 to 85 percent of all patients who have compromised immune systems
will die from it, regardless of the treatment provided. The doctor thus stated that to a reasonable
degree of medical probability, no matter when treatment would have been
initiated upon diagnosis, and no matter what treatment could have been
rendered, Larry Jr. would have died from the infection. The doctor believed that an earlier transfer
to the CCU would not have altered the course of the infection nor prevented the
death. He thus gave his opinion that the
moment Larry Jr. became infected with this fungus, he was "destined to
die" from it, and nothing that the Regents providers did or failed to do
caused his death, nor did anything they did contribute to his death.
Plaintiff
did not file opposition to the motion until February 2011. He claimed medical negligence had caused
Larry Jr.'s death, based on a declaration from Dr. Fischer, a licensed
Louisiana physician trained in preventive medicine and public health. Dr. Fischer stated that based on his review
of the medical records, and the defense doctor's declaration, his opinion was
that the Regents' medical staff had failed to timely and properly investigate,
work-up, evaluate, and treat Larry Jr.'s lung infection. According to Dr. Fischer, the first chest
x-ray disclosing there was a lung lesion should have been followed up with
anti-fungal medication, and if this had been done, the Regents' doctors could
have prolonged Larry Jr.'s life. He
therefore opined that the Regents had breached the standard of care in their
failure to properly diagnose and timely treat that condition, and therefore,
that failure caused his death.
The Regents
filed reply papers, including written objections to the declarations by Dr.
Fischer and by Plaintiff. They
challenged the foundation for the opinions given by Dr. Fischer and stated they
were only conclusory and speculative opinions.
(Jennings, supra, 114
Cal.App.4th 1108, 1117.)
On March
11, 2011, the trial court heard argument and denied summary judgment, on the
basis that triable issues of fact had been raised regarding causation of
injury, and whether Larry Jr. possibly could have lived longer if his lung mass
had been worked up and if he had been more closely followed as an inpatient and
outpatient. However, the court frankly
told Plaintiff that the threshold for denying the motion was pretty low, and
the court did not intend to communicate a "wholehearted endorsement"
of the quality of Dr. Fischer's expert opinion.
On March
15, 2011, after the denial of summary judgment, Plaintiff prepared a formal
designation of Dr. Fischer as his expert witness pursuant to section 2034.210,
but did not serve it until March 30, 2011.
Plaintiff offered to promptly make Dr. Fischer available for deposition
by the Regents.
Plaintiff
and counsel for the Regents collaborated to prepare a joint trial readiness
conference report (TRC), that was dated March 24, 2011. It lists Dr. Fischer as a "witness"
for Plaintiff. The joint report does not
contain any objection by the Regents to the timeliness of Plaintiff's recent
expert witness disclosure, or explain how they were prejudiced by that
disclosure. Instead, the copies in this
record are not conformed and not signed, and state as a matter of form that to
the best of the parties' knowledge, all deadlines set by the court for exchange
of experts had been met and discovery was complete.
D. Expert Evidence and Nonsuit Rulings
Plaintiff
obtained counsel to assist him in settlement efforts, and on April 19, 2011,
the trial court conducted a settlement conference, but it was
unsuccessful. Trial began April 26,
2011. At the outset of trial, the
Regents moved to exclude expert testimony from Plaintiff, for lack of a timely
designation. They argued that Plaintiff
had been required to disclose Dr. Fischer by July 30, 2010, to
counter-designate the Regents' expert declaration (made pursuant to the
original trial date set in this matter).
Thus, Plaintiff's designation on March 15, 2011, even in light of the
continuances granted by the trial court, was tardy on its face.
In
response, Plaintiff argued his failure to previously designate Dr. Fischer was
due to "mistake, inadvertence . . . or excusable neglect." (§ 2034.720, subd. (c)(1).) He reiterated he had been deployed overseas
with the Navy in the summer of 2010, was still searching for new counsel at
that time, and believed that the designation date had been continued by the
trial court along with all other relevant calendar events, and that he had been
misled by defense counsel in some way. He returned to San Diego in late September
2010. He claimed he had not received the
Regents' original designation from July 2010, although he later saw a proof of
service for it.
Plaintiff
thus argued it was excusable that he did not formally designate Dr. Fischer as
his medical expert earlier. He also
claimed he had brought an ex parte motion for relief from late
designation, but since the parties were pursuing a court-ordered settlement
conference in April of 2011, he took the motion off calendar. He said he was willing to make Dr. Fischer
available for deposition immediately.
At
argument, the court candidly told Plaintiff that the summary judgment
declaration Plaintiff had offered was not as "robust" as it could
have been, but summary judgment principles had required a more cautious
ruling. After emphasizing that a jury
panel was waiting, and the court had made numerous efforts to be fair to
Plaintiff, and there had been no trickery by counsel for the Regents, the court
granted the Regents' motion to exclude Plaintiff's expert. The court then discussed with counsel for the
Regents what the next step should be, suggesting a nonsuit, due to the evident
difficulties with proving the causation element of Plaintiff's professional
negligence claim, without any expert evidence.
Next, the Regents' counsel brought an impromptu nonsuit motion. In response, Plaintiff's offer of proof was
Dr. Fischer's declaration, from his summary judgment opposition.
In granting
the nonsuit motion, the trial court essentially ruled Plaintiff had no case and
had failed to present any acceptable excuse for delay. Judgment in the Regents' favor was entered
and this appeal followed.
DISCUSSION
I
The vehicle
for Plaintiff's request for relief from his late expert designation was the
opposition he filed to the Regents' motion in limine for exclusion of his
expert testimony. Plaintiff argued he
could show the kind of "mistake, inadvertence, surprise, or excusable
neglect" that is designated as potentially worthy of relief in section
2034.720, subdivision (c)(1). On appeal,
he contends the trial court abused its discretion by granting the Regents'
motion to exclude his expert evidence.
(§ 2034.720.)
In the
subsequent nonsuit ruling, the trial court determined as a matter of law that
the evidence relied on by Plaintiff (Dr. Fischer's declaration) would be
insufficient to permit the jury to find in his favor. That declaration was produced in February 2011
for the hard fought summary judgment proceedings heard in March 2011. The court denied the summary judgment motion,
determining that Dr. Fischer's declaration raised at least some triable issues
about causation of injury.
Because of
the nature of these inextricably interrelated issues about the exclusion of
expert testimony and the granting of a nonsuit, our review is conducted by
determining if the proposed expert testimony could have provided legally
sufficient support for a finding in favor of the plaintiff on the issue of
causation. (Jennings, supra, 114
Cal.App.4th 1108, 1119, fn. 9.) The
trial court's ruling on a motion to exclude an expert's opinion is reviewed for
an abuse of discretion. (Boston v.
Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950 (
always delimited by the statutes governing the particular issue," here,
the terms of section 2034.720. (See Zellerino
v. Brown (1991) 235 Cal.App.3d 1097, 1107 (Zellerino).)
To decide
whether a nonsuit is justified, " 'the court may not weigh the
evidence or consider the credibility of
witnesses. Instead, the evidence
most favorable to plaintiff must be accepted as true and conflicting evidence
must be disregarded. The court must give
"to the plaintiff ['s] evidence all the value to which it is legally
entitled, . . . indulging every legitimate inference which may be drawn from
the evidence in plaintiff['s] favor." ' [Citation.]
A mere 'scintilla of evidence' does not create a conflict for the jury's
resolution; 'there must be substantial evidence to create the necessary
conflict.' [Citation.]" (Nally
v. Grace Community Church (1988) 47 Cal.3d 278, 291.) "The plaintiff must be given an
opportunity to present all the facts he expects to prove before a nonsuit is
proper." (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 273.)
We next
examine Plaintiff's claim that the statute, properly applied, would have
allowed him a reasonable opportunity to cure the defective designation he made,
even under any appropriately imposed terms or conditions. (§ 2034.720, subd. (d).) We are mindful that when Plaintiff was acting
as a litigant in propria persona, he was "entitled to the same, but no
greater, rights than represented litigants and [was] presumed to know the
[procedural and court] rules." (
786, 795.) We are also mindful that the
trial court repeatedly acknowledged and accommodated some of Plaintiff's
unavoidable logistical difficulties, up to a point, and we review the current
rulings in the factual and legal context of the entire set of proceedings. (§ 906 [appellate court may address
intermediate orders affecting the judgment on appeal].)
II
A. Statutory Scheme
Section
2034.300 provides in relevant part:
"[O]n objection of any party
who has made a complete and timely compliance with Section 2034.260, the trial
court shall exclude from evidence the expert opinion of any witness that is
offered by any party who has unreasonably
failed to do any of the following:
List that witness as an expert under Section 2034.260." (Italics added.) The Regents raised objections to the late
designation, but the record is susceptible to different conclusions about the
timeliness of those objections, and whether the trial court properly applied
the criteria of section 2034.720 in determining that Plaintiff's failure to
list the expert at an earlier date was unreasonable.
"The
legal principles that govern the subject of discretionary action vary greatly
with context." (See
Cal.App.3d 1287, 1298.) According to its
title, section 2034.720 defines the scope of judicial authority to grant leave
for tardy filing of expert witness information and to require the satisfaction
of certain conditions. Section 2034.720
codifies the factors on which discretion shall be exercised, and the trial
court is required to evaluate an application for relief for whether the
statutory criteria have been met.
"Action
that transgresses the confines of the applicable principles of law is outside
the scope of discretion and we call such action an 'abuse' of discretion. [Citation.]
If the trial court is mistaken about the scope of its discretion, the
mistaken position may be 'reasonable,' i.e., one as to which reasonable judges
could differ. [Citation.] But if the trial court acts in accord with
its mistaken view the action is nonetheless error; it is wrong on the
law." (City of Sacramento v. Drew, supra,
207 Cal.App.3d 1287, 1297-1298.)
Under
section 2034.720, subdivisions (a) through (c), the court must use its
discretion in evaluating the relevant criteria, which include any reliance by
the objecting party on the lack of any expert designation; the existence of any
prejudice to the objecting party in attempting to proceed on the merits; and
the degree of diligence exhibited by the tardy party, and whether genuine
mistake, inadvertence, surprise, or excusable neglect existed for the tardy
party, as well as any remedial action.
Under section 2034.720, subdivision (d), the court may impose conditions
on relief, such as making the expert available immediately for a deposition,
"and on any other terms as may be just . . . ."
B. Noncompliance with Expert Designation Rules
Examples of
when a trial court, under section 2034.720, has found a failure to comply with
expert designation rules to be "unreasonable," include a party's
conduct that gives the appearance of gamesmanship, such as undue rigidity in
responding to expert scheduling issues.
(Stanchfield v. Hamer Toyota, Inc.
(1995) 37 Cal.App.4th 1495, 1504 (Stanchfield).) When an expert was not fully prepared at
deposition, but the party offering the expert said he would be made available
in a day or two, it was deemed unreasonable for the opposing party to say
nothing, but then to move, during trial, to exclude the expert. (Ibid.) The operative inquiry is whether the conduct
being evaluated will compromise these evident purposes of the discovery
statutes: "to assist the parties
and the trier of fact in ascertaining the truth; to encourage settlement by
educating the parties as to the strengths of their claims and defenses; to
expedite and facilitate preparation and trial; to prevent delay; and to
safeguard against surprise." (
950.)
In
was a party's actions in noncompliance with statutory disclosure requirements,
by producing late, incomplete expert witness information, and refusing to make
the experts available for deposition.
This amounted to "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; see
In
as allowing the trial court to exercise its discretion to exclude expert
opinion, when the party offering it "has unreasonably failed to produce
expert reports and writings." (
§§ 2034.270, 2034.300, subd. (c).)
"If the trial court concludes that a party intentionally
manipulated the discovery process to ensure that expert reports and writings
were not created until after the specified date, it may find the failure to
produce the reports and writings was unreasonable and exclude the expert's
opinions. Accordingly, a party who fails
to instruct its expert to create all reports and writings before the specified
date does so at its own risk." (
Also,
"[t]he behavior of the party seeking to exclude the expert testimony is
relevant to the reasonableness inquiry.
If any unfairness arising from the proffering party's late or incomplete
disclosure was exacerbated by the party seeking exclusion, the court is less
likely to find the conduct of the party offering the expert to be
unreasonable." (
"[T]he opportunity for meaningful deposition is one of the
circumstances the trial court should consider when making the reasonableness
determination." (
C. Role of Expert Testimony
For this
type of medical negligence action, expert testimony is required for any
plaintiff to prevail. The plaintiff must
establish "it is more probable than not the negligent act was a
cause-in-fact of the plaintiff's injury."
(Jennings,
italics omitted.) " 'A possible
cause only becomes "probable" when, in the absence of other
reasonable causal explanations, it becomes more likely than not that the injury
was a result of its action.' " (
medical negligence must be proven within a reasonable medical probability based
on competent expert testimony, i.e., something more than a '50-50 possibility.'
" (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504.) "[T]he evidence must be sufficient to
allow the jury to infer that in the absence of the defendant's negligence,
there was a reasonable medical probability the plaintiff would have obtained a
better result." (
Cal.App.4th 208, 216.)
Although
causation is generally a question of fact for the jury, expert testimony may in
some cases preclude a finding of causation by a trier of fact. In such cases, the causation question is
decided as a matter of law. (See
Cal.App.4th 1652, 1656-1660; Lucas v.
County of Los Angeles (1996) 47 Cal.App.4th 277, 288-289;
656, 666.)
Because of
specialized medical malpractice evidentiary principles, a trial court ruling on
a nonsuit request must closely scrutinize the stated facts underlying the
expert's declaration of opinion, and cannot take unsupported or speculative
opinions at their face value. (
Nevertheless, Dr. Fischer's declaration here was deemed adequate to
withstand the Regents' summary judgment motion on causation issues. Because of the late designation and the grant
of nonsuit, no deposition of Dr. Fischer was conducted, to further test his
opinions for their validity, and there was no resolution of this case on the
merits. We are concerned that the trial
court treated this set of evidentiary and nonsuit motions as only a renewed
summary judgment motion, to justify throwing the case out on the basis of the
same declarations as previously presented.
With those concerns in mind, we next examine the record on the application
of the statutory criteria of section 2034.720.
III
The
Regents' nonsuit request, as it was guided and shaped by the trial court,
challenged the causation element of Plaintiff's professional negligence claim,
and asserted that no evidence would support an inference that the delay or
manner of treatment of Larry Jr.'s lung ailment "caused" any harm to
him. Under the above standards for
consideration of expert testimony, the lack of an available expert doomed
Plaintiff's case. "Although a
judgment of nonsuit must not be reversed if plaintiff's proof raises nothing
more than speculation, suspicion, or conjecture, reversal is warranted if there
is 'some substance to plaintiff's evidence upon which reasonable minds could
differ . . . .' "
(Carson v. Facilities Development
Co. (1984) 36 Cal.3d 830, 839.) The
discretionary ruling disallowing the expert evidence must be evaluated in light
of the criteria provided in section 2034.720.
(See Zellerino, supra, 235
Cal.App.3d 1097, 1107.)
According
to section 2034.720, subdivision (a), on the topic of any reliance by the
Regents on the absence of Plaintiff's formal list of expert witnesses, we note
that Plaintiff obtained a trial continuance in December 2010, and announced at
that time that he had retained a medical expert. During the summary judgment motion
proceedings, counsel for the Regents pointed out that Plaintiff had still
failed to designate an expert. After
summary judgment was denied, Plaintiff gave input to the Regents' counsel for
preparation of the joint TRC report, which lists Dr. Fischer as a witness. A week later, Plaintiff served a formal
expert designation, which he had apparently prepared March 15.
The
December 2010 order that continued the trial referred to "all dates,"
and Plaintiff could have reasonably relied on that order to believe that the
July 2010 designation dates no longer controlled. Although we do not give special weight to his
status as a litigant in propria persona, it appears that he was distracted by
the ongoing summary judgment proceedings and lost his focus on other technical
litigation requirements.
However,
there is no indication in the record that this Plaintiff's loss of focus
amounted to the kind of gamesmanship or manipulation that has been found to be
unworthy of relief from late designations.
(See Zellerino,
954.)
Nor do we
base our analysis on any "exacerbation" of the situation by the party
seeking exclusion, the Regents. (
Instead, we are presented with somewhat ambiguous court orders, and we
think the confusion that resulted was to be expected and was not completely
unreasonable. For example, the joint TRC
report prepared by the parties is at least inaccurate, and at most sloppy and
misleading, on the status of the expert designation orders. (See Stanchfield,
supra, 37 Cal.App.4th 1495, 1504 [reasonableness limitation may prevent
parties from waiting until trial to raise objections that could have been
raised beforehand].)
Regarding
the Regents' degree of prejudice or inability to defend on the merits
(§ 2034.720, subd. (b)), it is most regrettable that Plaintiff did not
comply with disclosure requirements and make Dr. Fischer available earlier for
deposition. The Regents justifiably
pointed out that Dr. Fischer's declaration was at least somewhat conclusory and
speculative, under case law standards. (
1117-1118.) However, it is possible that
more information could be gained at deposition, without undue prejudice to the
Regents' defense, except for expenditures of time and money. Under section 2034.720, subdivision (d), an
order allowing a tardy designation must be conditioned upon the moving party
making the expert available immediately for deposition, and on any other terms
as may be just, and the court apparently failed to consider such options. The trial court may have had second thoughts
about the previous denial of the summary judgment motion, but these rulings were
made in an entirely different legal context, and they required consideration of
more than the current adequacy or inadequacy of Dr. Fischer's declaration.
Regarding
Plaintiff's required degree of diligence, he showed some justification for his
failure to submit the information earlier as the result of mistake,
inadvertence, surprise, or excusable neglect.
(§ 2034.720, subd. (c)(1).) He
notified the court and counsel about his reliance on Dr. Fischer's expert
opinion around the time that the order was made continuing trial and "all
dates." Once the summary judgment
motion was denied, Plaintiff took action to prepare the designation, only to go
off track again when settlement discussions were scheduled. Nevertheless, he did not completely hide the
ball or thwart discovery. (
1117.)
The
operative inquiry should be whether Plaintiff's delays and misunderstandings
were so egregious as to prevent him from taking advantage of the policy
promoting resolution of cases on the merits, and of the main purposes of the
discovery statutes: to ascertain the
truth; to educate the parties as to the strengths of their claims and defenses;
to expedite and facilitate preparation and trial; to prevent delay; and to
safeguard against surprise. (
We think
the trial court was mistaken about the circumstances as they affected the scope
of its discretion. "[I]f the trial
court acts in accord with its mistaken view the action is nonetheless error; it
is wrong on the law." (
of the trial court, but we do find that the court failed to act in accordance
with the statutory guidelines when it terminated the case for these technical
procedural problems, in light of the lack of showing of undue prejudice to the
Regents, and the availability of lesser remedies under the statute. Under all the relevant circumstances and the
statutory guidelines, the trial court's rulings to exclude Plaintiff's expert
designation and to grant a nonsuit amounted to an abuse of discretion and
error. We reverse.
DISPOSITION
The
judgment is reversed. Each party shall
bear its own costs on appeal.
HUFFMAN, J.
WE CONCUR:
BENKE,
Acting P. J.
McDONALD,
J.
