Cottini v. Enloe Medical Center (226 Cal. App. 4th 401, 2014)

Opinion

HOCH, J.

Plaintiff Patrick Cottini appeals from a judgment entered in favor of Enloe Medical Center (Enloe) after the. jury found one or more Enloe employees provided negligent care to Cottini, a dependent adult, while he was in Enloe’s care or custody, but no causation. The critical question we must resolve is whether or not the trial court, on the objection of a party who has made a complete but untimely compliance with the expert witness exchange requirements of Code of Civil Procedure section 2034.260, has the authority to exclude from evidence expert testimony offered by a party who has completely and unreasonably failed to comply with these same requirements prior to the discovery cutoff date. We answer this question in the affirmative.

The relevant facts, as set forth in detail below, are the following. Neither Cottini nor Enloe disclosed information concerning its expert trial witnesses by the date specified in Enloe’s demand for exchange of this information. Rather than disclose his experts on this date, Cottini brought a motion to disqualify the law firm of LaFollette, Johnson, DeHaas, Fesler & Ames (LaFollette Johnson) from representing Enloe. Based on Cottini’s refusal to disclose expert witness information to a law firm he claimed to be disqualified, Enloe offered to delay the exchange of this information until the trial court ruled on the disqualification motion. After the trial court denied the motion, Enloe made another demand for exchange of expert witness information. Receiving no response by the date specified in this second demand, Enloe unilaterally disclosed its expert witness information the following day. On the discovery cutoff date, Cottini still had not disclosed his expert witnesses. After an unsuccessful appeal to this court on the disqualification issue (see Cottini v. Enloe Medical Center (Nov. 5, 2010, C062904) [nonpub. opn.]), Cottini finally disclosed his expert witnesses and moved the trial court to reopen discovery, continue the trial, and grant him relief from the tardy disclosure. The trial court denied these motions and ultimately precluded Cottini from offering expert testimony.

On appeal, Cottini challenges these decisions. He also claims the trial court prejudicially erred “by giving the jury an instruction which closed the jury to considering causation of [his] harms based upon common knowledge.” We affirm the judgment. As we explain, the trial court did not abuse its discretion in concluding Cottini failed to demonstrate “exceptional circumstances” (§ 2034.710, subd. (b)) warranting his disclosure of expert witness information after the discovery cutoff date. It was also within the trial court’s discretion to conclude Cottini’s failure to submit this information was not “the result of mistake, inadvertence, surprise, or excusable neglect.” (§ 2034.720, subd. (c)(1).) Nor did the trial court abuse its discretion in excluding from evidence the testimony of Cottini’s expert witnesses. While section 2034.300, by its terms, did not mandate the exclusion of this testimony because Enloe’s compliance with the expert witness exchange requirements was untimely, we do not read this section to preclude the trial court from excluding expert witness testimony for an egregious violation of the exchange requirements unless the objecting party’s compliance was flawless. We conclude that where the party objecting to expert testimony under section 2034.300 would be entitled to mandatory exclusion of such testimony but for his or her own failure to timely comply with the expert witness exchange requirements, exclusion of the expert testimony is not mandatory, but discretionary. Based on the facts of this case, there was no abuse of discretion. Finally, we conclude any instructional error was harmless.

BACKGROUND

Cottini is a wheelchair athlete with incomplete quadriplegia who was brought to Enloe after sustaining a shoulder injury while training for the Paralympics. He sued Enloe for negligence and abuse of a dependent adult, claiming he suffered a severe pressure sore on his coccyx caused by the failure of Enloe employees to regularly reposition him, he did not receive adequate bowel care, and he also suffered a traumatic injury to his scrotum. The trial date was set for August 17, 2009.

First Demand for Exchange of Expert Witness Information

On June 3, 2009, Enloe served Cottini with-a demand for “simultaneous exchange of information concerning each party’s expert trial witnesses,” specifying June 29, 2009, as the date for the exchange. Seven days later, Cottini’s attorney, Joseph M. Earley m, sent a letter to Enloe’s attorney, Julie Clark Martin, stating his belief her law firm, LaFollette Johnson, was disqualified from representing Enloe based on a conflict of interest and “objecting] to any and all recent actions taken on behalf of Enloe by [her] firm.” A more complete description of the purported conflict can be found in Cottini v. Enloe Medical Center, supra, C062904. For our purposes, we note Earley claimed to have given confidential information concerning Cottini’s standard of care consultant to another attorney, Cameron Whitehead, prior to Whitehead’s employment with the LaFollette Johnson firm.

On June 17, 2009, Martin responded to Earley’s letter. She declined to withdraw from the case, concluding her firm was not disqualified from representing Enloe. According to Martin, while Earley mentioned the name of an expert “in passing” during a conversation with Whitehead concerning an unspecified case involving “a quadriplegic who contended that he developed a pressure ulcer due to the negligence of a defendant healthcare provider,” disqualification was not required because (1) the disclosure of the name of Cottini’s expert did not create a de facto attorney-client relationship between Whitehead and Cottini, (2) no confidential information was shared with Whitehead, and (3) even if the name of the expert qualified as a confidential communication, this information would no longer be confidential in two weeks when the parties were scheduled to disclose their experts.

On June 25, 2009, Cottini served an “objection” to Enloe’s demand for exchange of expert witness information “based upon the conflict of interest.” Four days later, on the date scheduled for the exchange, Cottini brought a motion seeking an order disqualifying LaFollette Johnson, staying discovery, and continuing the trial. On July 2, 2009, Martin sent a letter to Earley asking him to reconsider the disqualification motion. With respect to the expert witness exchange, she stated: “Based on your objection to our Demand for Disclosure of Expert Witnesses, we likewise did not disclose. Assuming that the Court denies your Motion to Disqualify, I propose that we agree to disclose no later than 3 days from the hearing on that motion. Kindly advise by close of business on July 6, 2009, as to your decision in this regard.” Earley did not respond to this letter.

On July 15, 2009, the trial court denied the disqualification motion, concluding there was “not sufficient evidence to create an attorney-client relationship [between Whitehead and Cottini] nor enough of a disclosure to outweigh the right of [Enloe] to choose to have an attorney of their choice represent them.” This ruling was made without prejudice to allow Earley to “bring forward another declaration that would be considered in camera.” The trial court also denied Cottini’s request to stay discovery and continue the trial.

Second Demand for Exchange of Expert Witness Information

On July 16, 2009, Martin sent a letter to Earley stating: “We are now 30 days before trial, and you have unilaterally determined to not disclose expert witnesses, and further, you have refused to engage in any type of communication with me or my office to select a mutually agreeable date or time to accomplish this. Please be advised that we demand that experts be disclosed no later than Monday, July 20, 2009. [][]... [f] Should you fail to disclose your expert witnesses on that date, we will file a motion with the court to exclude your experts from testifying at time of trial. I remain ready and willing to discuss this further should you feel that our position is not well taken.” Earley did not respond in writing, but did state by phone he believed the trial court “was wrong in its ruling” and he would “bring the motion again.”

On July 21, 2009, having received no expert disclosure from Cottini the previous day, Enloe unilaterally disclosed its expert witnesses. This disclosure consisted of one retained expert (registered nurse Sue Altamirano) and 37 nonretained experts. Seven days later, Cottini served a “further objection” to Enloe’s demand for exchange of expert witness information, again “based upon the conflict of interest.” By the discovery cutoff date for expert witnesses on August 3, 2009, Cottini still had not disclosed his expert witnesses. Nor did he attempt to depose Enloe’s experts prior to this date.

On August 7, 2009, renewing the disqualification motion, Cottini filed an application for in camera review of two supplemental declarations prepared by Earley, which was granted. After reviewing the supplemental declarations in camera, the trial court again denied the disqualification motion, ruling there was “no material and confidential information” disclosed to Whitehead. Cottini appealed and obtained an order from the trial court staying the proceedings pending resolution of the appeal.

On November 5, 2010, this court issued an opinion affirming the trial court’s denial of Cottini’s disqualification motion. (Cottini v. Enloe Medical Center, supra, C062904.) Following issuance of the remittitur, the trial court set the new trial date for February 28, 2011.

Postappeal Discovery Attempts

On January 6, 2011, Cottini disclosed his expert trial witnesses. The disclosure consisted of four retained experts (Charles Mahla, Ph.D., James Randy Mervis, M.D., Stephen D. Feinberg, M.D., and registered nurse Betty Lyons) and 49 nonretained experts. The following week, Cottini served various notices demanding (1) to depose Enloe’s retained expert on January 25, 2011, (2) to depose seven members of Enloe’s nursing staff between February 16 and 21, 2011, and (3) to inspect Enloe’s facility on February 16, 2011.

On January 19, 2011, Enloe filed a motion seeking a protective order quashing the deposition notices, preventing the inspection, and striking Cottini’s expert witness disclosure. In response, Cottini withdrew the deposition notices, urged the trial court to deny Enloe’s motion for protective order as moot, and notified the court he would be filing a motion “for a brief trial continuance, to reopen discovery and for order regarding late served disclosures.” The trial court ruled: “Right now, no depositions are scheduled or noticed, so there’s no need for a protective order. There has been a purported expert disclosure. Now, whether or not that disclosure was proper or not to permit the witnesses to testify would be an issue left until tire time of trial, when it is called.”

Motion to Reopen Discovery

On January 25, 2011, Cottini filed the promised motion to reopen discovery, arguing: “Neither defendant nor plaintiff timely served expert disclosures pursuant to [section] 2034, et seq. [][] The legal consequence of any party not timely serving an expert disclosure is that such party lacks standing to object to any other party’s incomplete or untimely disclosure. Therefore, if all parties fail to timely serve disclosures (as in this case) the trial may commence without the ability to preclude improper expert testimony. This does not lead to an efficient trial, [f] In order to avoid unnecessary motions regarding experts and other necessary discovery, justice will be better served by reopening discovery based upon a trial date a few months from the February 28, 2011 date, (which was only set a few weeks ago) and allowing plaintiff to serve a tardy expert disclosure. Only then will the parties be in a position to enter into meaningful settlement discussions or, alternatively, to advocate for their respective clients. Otherwise, both parties cannot receive a fair hearing of their cases at trial.” With respect to his compliance with section 2034.710, which allows the trial court to grant leave to submit a late expert witness disclosure after the time limit for the completion of discovery only “[u]nder exceptional circumstances” (§ 2034.710, subd. (b)), Cottini argued that because “there was a genuine concern regarding disqualification of defense counsel,” he “objected to the expert disclosure demand served by defendant,” and as a result, “both parties failed to timely disclose experts.” Cottini further argued he “immediately” served his expert witness disclosure following the remittitur and his “retained experts have been available for deposition since that time.”

Two days later, Enloe filed an opposition to the motion. With respect to continuing the trial, Enloe argued Cottini did not make “the requisite showing of ‘good cause,’ ” explaining: “Plaintiff had more than a reasonable opportunity to conduct discovery and prepare for trial prior to the original trial date. However, he made a deliberate, tactical decision to not engage in discovery but, rather, pursued meritless motions and appeals to disqualify [Martin], He should not be entitled to capitalize on his gamesmanship in order to obtain yet another unwarranted continuance of trial of this matter.” With respect to reopening discovery, Enloe argued Cottini “showed no interest” in taking depositions of Enloe staff “prior to close of discovery, or at any time prior to the original trial date,” despite the fact Cottini properly noticed depositions of several staff members on May 14, 2009, and Enloe “attempted to arrange these depositions.” Enloe also pointed out Cottini never “serve[d] a notice of deposition for any of the individuals listed in the [expert witness] disclosure” prior to the close of expert witness discovery and never “requested an inspection of [Enloe’s] premises prior to the close of discovery.” Finally, with respect to Cottini’s request to allow the late expert witness disclosure, Enloe argued: “Plaintiff should not now be entitled to claim defendant’s disclosure was ‘untimely,’ as any delay in the defendant’s disclosure was an outcome produced by his own efforts to thwart the original trial from going forward. In addition, plaintiff should be precluded from introducing into evidence expert opinion testimony from any of his four retained experts, or any of the 49 other non-retained experts who he failed to disclose until the eve of the continued trial date, and more than one and one half years after disclosure should have been properly performed.”

On January 28, 2011, at the hearing on the motion, after the parties argued their respective positions, the following exchange occurred between the trial court and Cottini’s trial counsel:

“THE COURT: [To Cottini’s counsel, Earley], what was the problem with disclosing an expert and the list of your witnesses, even if the Court had been wrong in finding a conflict of counsel? What possible harm could there have been?

“[Earley]: I don’t understand why that’s not clear.

“THE COURT: It’s not clear to me at all. What would have been the harm if you had disclosed experts, then you asked the Court to rule on whether there was a conflict? What would have been the harm if the Court had decided there was a conflict?

“[Earley]: Why would—I get back to the preliminary question. Why would plaintiff engage in litigation with a—

“THE COURT: What would have been the harm in disclosing an expert and if you had won the motion, they would have been off the case, you would have the same expert. All you were required to do was disclose the name and, I guess, the qualifications of the expert. What would have been the harm?

“[Earley]: The harm would have been that we were disclosing further information to a firm that we sincerely believed was disqualified.

“THE COURT: What is the problem with that? You won’t answer my question. What is the problem with that? Okay, they’ve got the information about who your expert is and you’re successful in throwing them off the case. They’ve got your expert, but they can’t do anything with it because they can’t try the case anyway. Or, you lose the motion, you disclose the expert and now they have the expert information.

“[Earley]: They already knew who my expert was. They already knew that. They knew—also knew about the problems that we were having with—

“THE COURT: Why didn’t you disclose? I guess there’s no answer.”

Earley then argued it would have made “no sense” to disclose experts to a firm he believed to be disqualified, and continued: “We said, look, there’s a conflict, so we didn’t disclose on that date. Neither did they. They didn’t for three weeks later, or—it doesn’t matter whether it’s three weeks or it’s a year and a half, because it’s still late. What we did was, and what we’re doing right now is we’re asking for relief for that late filing. They’ve never done that, and they have to do that. They’re in a position where they’re late filed, we’re late filed. I’m not trying to claim we’re not late filed. I’m seeking relief for it today because we didn’t have any time to do that before. Now we do. We brought this as quickly as we could, and we’re asking for the proper relief. The defense is not even asking for that. If the—the law[] is clear that when we come in and ask, and there’s no prejudice established, and you know we have a reason for having—having a tardy disclosure, and we made our experts available ever since, ever since the disclosures were served, for depositions, the Court doesn’t have any choice but to grant the relief.”

Denying the motion, the trial court explained: “[I]n light of your inability to answer my. question as to why in the world you wouldn’t [disclose], and your answer to that was, well, they knew it anyway, makes it even more preposterous .... The Court is going to find that there’s no grounds for late disclosure of expert witnesses, and because there’s no grounds for disclosure of late expert witnesses, the Court is going to deny the motion to continue the trial and the Court is going to deny the motion to reopen discovery.”

Motions in Limine Regarding Expert Testimony

On February 3, 2011, Cottini filed a motion in limine seeking to preclude Enloe from objecting to the expert testimony of his late-disclosed expert witnesses. Relying on West Hills Hospital v. Superior Court (1979) 98 Cal.App.3d 656 [159 Cal.Rptr. 645] (West Hills), Cottini renewed his argument that since “[n]either defendant nor plaintiff served their disclosures ‘on or before the date of exchange specified in the demand!’ ” (italics added), as required by section 2034.260, subdivision (a), “neither [has] legal standing to object to the other’s expert witness disclosure or seek preclusion of the other’s expert witness testimony on the basis of being late.” Enloe opposed the motion and filed its own motion in limine seeking to preclude Cottini from presenting expert testimony at trial. Enloe argued it “reasonably complied with [section] 2034.260 by attempting to ‘meet and confer’ on the issue of expert disclosure several times after plaintiff expressly indicated that he would not participate in expert disclosure with the defendant, and ultimately by disclosing experts in late July of 2009.” Accordingly, argued Enloe, it was “entirely within its rights to object to plaintiff’s disclosure of expert witnesses more than one and one half years after the original date for the production of such experts,” and Cottini’s unreasonable failure to comply with the expert exchange requirements warranted mandatory exclusion of Cottini’s experts under section 2034.300.

On February 22, 2011, the trial court ruled: “Neither party has standing to object to expert witness [t]estimony.” Two days later, Enloe filed a motion to continue the trial, which was granted. A new trial date was set for May 9, 2011.

On May 6, 2011, Enloe renewed its motion in limine to preclude Cottini from offering expert testimony at trial. On May 9, 2011, the trial court informed counsel it was “inclined to go ahead and allow the experts” because “neither party has standing to object to the other’s experts because nobody disclosed experts on time,” but indicated it would entertain argument on the issue the next day. The following day, without hearing argument on the expert witness issue, the trial court stated: “The court has previously ruled on this. You may have called it a tentative decision. If it was a tentative decision, the court is going to rule with finality now. The court is going to find that neither party disclosed experts timely, therefore neither party has standing to object to the other party’s expert witnesses. [][] [Martin], I absolutely understand why your firm was tardy in disclosing the experts, and I do think there was gamesmanship, and I do think that we had improper actions on their part, but there was nothing that prevented you from disclosing expert witnesses timely.” Martin then asked the trial court to reserve ruling to allow her to make a record on the issue. The trial court agreed and stated: “Let’s reserve for now, but I’m certainly going to allow them to make mention of the experts [in the opening statement], and they are taking the chance that if [or] when we argue this, if I rule differently, then I will bring it to the jury’s attention, and I will strike all of the evidence including anything that was made reference to in the opening statements.”

On May 12, 2011, at the close of the second day of trial, Enloe objected to the anticipated testimony of Phillip Filbrandt, M.D., a nonretained expert disclosed by Cottini after the cutoff date for expert discovery, who was scheduled to testify the following day. Martin argued: “The problem is, and I understand what the court was thinking, but the court only had half the analysis. The court also did not bring in these equitable principles that are so important and in play here because there was a late disclosure—first of all, the second half of the analysis is that there needs to be mutual disclosure. That clearly did not happen nor was it ever going to happen in this case. The second part of the analysis, of course, is the fact that but for counsel’s conduct, I would have been on time disclosing those experts. It’s like somebody [helping] you back into a parking space and telling you, ‘You got room,’ and sticking their foot under your tire and suing you for negligence because you ran over their foot, [f] In reliance, he made me late. He induced me. In my effort to try to arrange what we were supposed to do as officers of the court, arrange for mutual exchange, trying to work out something I thought was a legitimate beef, he had a motion pending to recuse me. I don’t think that my client should be penalized. [