Motion_in_limine_prasads_motion_in_limine_no_15

Motion

Cal. Super. - 2nd Dist.August 1, 2016

Electronically FILED by Superior Court of California, County of Los Angeles on 02/14/2019 12:36 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Mariscal,Deputy Clerk Oo 0 NN S N nn BR W N = N O N N D R N N N N NN me m m o s m r a e m p m p d e m e m pe 0 3 O N n t Re W N RE, O Y N N O D R E W I N D e o DAVID J. WEISS, ESQ., SBN 78542 JAMI B. TENCATIL ESQ., SBN 300890 LAW OFFICES OF DAVID J. WEISS 11340 West Olympic Boulevard, Suite 100 Los Angeles, California 90064 Phone Number: (310) 575-9566 Fax Number: (310) 575-9576 Attorneys for Defendant, RAJENDRA PRASAD, M.D. (erroneously sued herein as Rajenda Prasad, M.D.) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES KATHLEEN BEAUVAIS, an individual, ) CASE NO. BC628841 ) ) DEFENDANT RAJENDRA PRASAD, M.D.’S Plaintiff, ) MOTION IN LIMINE NO. 15 RE: OPINION ) TESTIMONY BY PLAINTIFF’S NON- Vs. ) RETAINED PERCIPIENT EXPERT ) WITNESSES; MEMORANDUM OF POINTS ) AND AUTHORITIES; DECLARATION OF RAJENDA PRASAD, M.D. and DOES 1 ) JAMI B. TENCATI, ESQ.; [PROPOSED] through 30, Inclusive, ) ORDER (C.C.P. §2034.210, et seq.) p a Defendants. ) ) Complaint Filed: August 1, 2016 ) Third Amended Complaint Filed: ) September 15, 2017 ) Trial Date: March 11, 2019 ) ) TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that at 9:30 a.m. on March 8, 2019, or as soon thereafter as the matter may be heard by the above entitled Court, located at 1725 Main Street, #102, Dept O, Los Angeles, CA 90401, Defendant RAJENDRA PRASAD, M.D. will move this Court in limine for an order to confine the testimony of Plaintiff’s non-retained percipient witnesses and/or treating providers to factual information| concerning only their own medical care and treatment of Plaintiff and their impressions and opinions at the 1 DEFENDANT RAJENDRA PRASAD, M.D.’S MOTION IN LIMINE NO. 15 RE: OPINION TESTIMONY BY PLAINTIFF’S NON-RETAINED PERCIPIENT EXPERT WITNESSES Oo «© 3 O N Un Bs L N N N N N N N N N RN m m em p m p m a e a e m p m mk p m «ww ~~ O N nn BA W N = O N Y DB R E W I N D = o time such care and treatment was rendered. Specifically, defendant requests the court to enter an ordet] precluding Plaintiff's non-retained percipient witnesses and/or treating providers from testifying as to any after-the-fact opinions and impressions they may have, and their opinions on the standard of care, causation, and Plaintiff's medical condition and health care management at any time other than during their care and treatment of plaintiff. This Motion is based upon this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Jami B. Tencati, Esq., the complete files and records in this action, and any further argument and evidence that may be presented at or before the hearing on this Motion. Dated: February 13, 2019 LAW OFFICES OF DAVID J. WEISS - ID J. WEISS, ESQ. JAMI B. TENCATI, ESQ. Attorneys for Defendant, RAJENDRA PRASAD, M.D. - 2 DEFENDANT RAJENDRA PRASAD, M.D.”’S MOTION IN LIMINE NO. 15 RE: OPINION TESTIMONY] BY PLAINTIFF'S NON-RETAINED PERCIPIENT EXPERT WITNESSES OO 0 NN O N nn hs W N N N N N N N N N N m m e m em ee em e s e e p a 00 3 O N BR W N D = O O N R W ND = O MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION This is a medical malpractice case arising out of the care and treatment provided to Plaintiff Kathleen Beauvais in August and September 2014 during an admission at Southern California Hospital. Plaintiff claims defendants were negligent in providing care and treatment to her during the admission and breached] the standard of care, causing Plaintiff’s injuries. Plaintiff brings causes of action for Medical Malpractice Lack of Informed Consent, and Battery against Dr. Prasad. 2, THE TESTIMONY OF PLAINTIFF’S NON-RETAINED PERCIPIENT WITNESSES AND/OR TREATING PROVIDERS SHOULD BE LIMITED TO FACTUAL INFORMATION CONCERNING ONLY THEIR OWN MEDICAL CARE AND) TREATMENT OF PLAINTIFF Percipient witnesses, who acquire information from personal observation, are treated as fact witnesses. They are not retained for the purpose of forming an opinion but, rather, are designated as experts because, as treating physicians, the might be required to give an expert opinion. (Hurtado v. Western Medical Center (1990) 222Cal.App.3d 1198, 1203.) Accordingly, C.C.P. Section 2034 distinguishes between experts retained for purposes of forming an opinion, and percipient witnesses. Subdivision (a)(2) of Section 2034 requires a party to provide far more detailed information about retained experts. Importantly, counsel must guarantee that the expert is ready to testify at trial, i.e., has agreed to testify, and is sufficiently] familiar with the action to submit to a meaningful deposition. (C.C.P. § 2034(a)(2), (f)(2).) The trial court must exclude from evidence the opinion of any expert that is offered by any party who has failed to comply with this requirement. (C.C.P. § 2034(j)(2).) Plaintiffs disclosed only treating physicians and other percipient witnesses as “non-retained” experts. The testimony of these witnesses must be confined to the factual information they obtained during their care and treatment of Plaintiff, and their medical opinions and impressions at the time such care and treatment were rendered. They should not be allowed to express any opinions regarding standard of care, causation, Plaintiff's health care management and/or medical condition or damages, except at the time of their care and treatment of Plaintiff. (See e.g., County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446.) It would totally defeat the spirit and purpose of C.C.P. § 2034 if such opinion testimony from 3 DEFENDANT RAJENDRA PRASAD, M.D.’S MOTION IN LIMINE NO. 15 RE: OPINION TESTIMONY] BY PLAINTIFF'S NON-RETAINED PERCIPIENT EXPERT WITNESSES © 00 0 O N hn hk W N N O N N N N N N N N N m o m p m p m e m m m e m p m em 0 J N Wn BR W N = O D O N N Y I R W I N = O Plaintiff's percipient witnesses was allowed. As stated in the Reporter's Note to C.C.P. § 2034: “By requiring a comprehensive expert witness declaration, the commission is striving to achieve a number of results. First, it wants to insure that those listed as experts have actually been contacted by the party designating them and have agreed to testify. Secondly, the commission aims to guarantee that when an expert's deposition is taken, it will be fruitful because the expert is prepared to testify during the deposition] as fully as he or she would be at the trial of the case. Thirdly, the commission is hopeful that the elaborate disclosure of the expert's trial testimony will reduce the need to take the expert's deposition in order to prepare for trial ...” (CEB Program Booklet, pp. 172, 173.) Obviously, the disclosure requirements in § 2034 are designed to provide enough information to) opposing counsel to enable him to determine whether to depose the expert. Otherwise, it is extremely difficult, if not impossible, to prepare a case of this nature for trial. County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, cited above, confirms the limited nature of percipient expert witness testimony. Such witnesses may only be questioned regarding their care and treatment, and their impressions and/or the reasons for their action, or inaction, at the time of such care and treatment. Percipient expert questioning regarding the treating physician's present opinion as to the propriety of past decisions or relative to some accepted standard of care is prohibited. (/d.) WHEREFORE, defendant respectfully requests the court enter an in limine order precluding Plaintiff's non-retained percipient health care provider witnesses from testifying as to anything beyond factual information concerning their own medical care and treatment of Plaintiff and their impression and] opinions at the time such care and treatment were rendered. 11 11 1 1 11 1 11 1 4 DEFENDANT RAJENDRA PRASAD, M.D.’S MOTION IN LIMINE NO. 15 RE: OPINION TESTIMONY| BY PLAINTIFF’S NON-RETAINED PERCIPIENT EXPERT WITNESSES f d 4. CONCLUSION For these reasons, Plaintiff's health care provider non-retained experts should be prohibited from| offering at trial any opinions or testimony not based on factual information concerning their own medical care and treatment of Plaintiff and their impressions and opinions at the time such care and treatment were rendered. Dated: February 13, 2019 LAW OFFICES OF ID J. WEISS OO 0 NN O N nn BA W N BN O N ND N N N N O N ND r m o r e m e m p m e a a e a p m p m © I AA Un B R A W N =, O V O N N N P R A W N = OO DEFENDANT RAJENDRA PRASAD, M.D.’S MOTION IN LIMINE NO. 15 RE: OPINION TESTIMONY ’ ID J. WEISS, ESQ. MI B. TENCATI, ESQ. Attorneys for Defendant, RAJENDRA PRASAD, M.D. 5 BY PLAINTIFF'S NON-RETAINED PERCIPIENT EXPERT WITNESSES OO 0 N N N nh RR W N N N N N N N N N N mm e m e m e m p s p a e m e m 0 NN A N Un hk W N =, O O N N N R E W I N D = o [PROPOSED] ORDER IT IS HEREBY ORDERED that Defendant RAJENDRA PRASAD, M.D.’s Motion in Limine No. 15 prohibiting plaintiff's non-retained percipient health care provider witnesses from offering at trial any, opinions or testimony not based on factual information concerning only their own medical care and] treatment of Plaintiff is hereby: { } GRANTED { } DENIED. Date: JUDGE OF THE SUPERIOR COURT 6 DEFENDANT RAJENDRA PRASAD, M.D.’S MOTION IN LIMINE NO. 15 RE: OPINION TESTIMONY| BY PLAINTIFF’S NON-RETAINED PERCIPIENT EXPERT WITNESSES NO LL 3 NY nn B A W ND N N N RN N N N N N e m s a s a e a r m a e a a e a ma p m «© 3 O Y nn B R O W N m o O N N YY N W N = O PROOF OF SERVICE Beauvais v. Prasad LASC Case No.: BC628841 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES [am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my business address is 11340 West Olympic Boulevard, Suite 100, Los Angeles, California 90064. On February 14, 2019, served the foregoing document(s) described as DEFENDANT RAJENDRA PRASAD, M.D.’S MOTION IN LIMINE NO. 15 RE: OPINION TESTIMONY BY PLAINTIFE’S NON-RETAINED PERCIPIENT EXPERT WITNESSES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JAMI B. TENCATI, ESQ.; [PROPOSED] ORDER on the interested parties in this action by placing [] the original [X] a true and correct copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST [By Mail]: [X] As follows: 1 am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U. S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of service and is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [By Overnight Delivery]: [] I caused such envelope(s) to be delivered by FedEx to the offices of the addressee(s). [By Courier]: [X] Icaused such envelope(s) to be delivered by Express connection to the offices of the addressee(s). [By Facsimile]: [ 1 Iserved the within document by facsimile at the facsimile number listed above. I that the above is [X] (State) I declare under penalty of perjury under the laws of the State of . true and correct. 1 PROOF OF SERVICE B w Oo 0 a Oy 10 11 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 LASC Case No.: BC628841 Steven R. Young, Esq. Law Offices of Steven R. Young 600 Anton Boulevard, Suite 650 Costa Mesa, CA 92626 Via Express Connection Attorneys for Plaintiff Judith M. Tishkoff, Esq. Lewis Brisbois Bisgaard & Smith, LLP 633 West 5" St., Suite 4000 Los Angeles, CA 90071 Via U.S. Mail Attorneys for Defendants, Southern California Healthcare System, Prospect Medical Holdings, Inc. and SERVICE LIST Beauvais v. Prasad Prospect Health Source Medical Group, Inc. 2 PROOF OF SERVICE