Opposition_defendant_sampsons_opposition_to_plaintiffs_motion_in_limine_5

Motion

Cal. Super. - 2nd Dist.March 27, 2012

Electronically FILED by 0 Court of California, County of Los Angeles on 02/11/2019 12:56 PM Sherri R. Carter, Executive Officer/Clerk of Court, by L. Kulkin,Deputy Clerk 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 Drew R. Antablin, CSB #75710 Andrea D. Bruce, CSB #256561 ANTABLIN & BRUCE, a Law Partnership 6300 Wilshire Boulevard, Suite 840 Los Angeles, California 90048 (323) 651-4490 Fax No.: (323) 651-4990 Attorney for Defendant BOBBY SAMPSON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, WEST DISTRICT CASE NO. SC 116469 [Hon. Nancy Newman, Dept. WE”P”] VARSHAB TAMADONNEJAD, etc., Plaintiff, DEFENDANT SAMPSON’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE # 5 RE: EXCLUDING SAMPSON’ S NON-RETAINED LOS ANGELES UNIFIED SCHOOL EXPERT MINOO SHAHNARY DISTRICT, etc., et al., FSC Date: 03/08/19 Time: 9:00 a.m. Defendants. Dept: Sp Trial Date: 03/11/19 — N N Nn ne ne e n n r S r S r S r TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: Defendant BOBBY SAMPSON submits the attached Opposition to Plaintiff’s Motion in Limine # 5 re: Excluding Sampson’s Non- Retained Expert Minoo Shahnary from testifying. / fF FA Sampson\plead\MIL #5 1. adb DEFENDANT SAMPSON’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #5 w DN 10 LL 12 13 14 15 16 157 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff’s Motion # 5 presents the same issue raised in Plaintiff’s MIL # 4, and should be denied for the same reasons. The Motion is to exclude testimony from one of Plaintiff’s own treating medical care providers, Ms. Shahnary. This medical provider has NOT been designated by Defendant as a “retained” expert, rather she has been listed only as a percipient, non- retained, treating medical provider. First, Defendant SAMPSON is not required or otherwise obligated to produce a non-retained expert simply because Plaintiff has served a notice of deposition. It is incumbent on Plaintiff to subpoena the witness. As noted in The Rutter Group, California Practice Guide, “Civil Procedure Before Trial,” (2018), “Discovery;” section 8:1696.1, “. . . the party designating treating physicians on an expert witness list is not obligated to produce them for depositions, i.e., they must be subpoenaed by the deposing party. ” Second, the witness is Plaintiff’s treating medical care provider. There is no dispute about that. Plaintiff seemingly, or surely, knows where the witness works and could readily subpoena her if Plaintiff made an effort to do so. Third, Defendant in good faith provided all last known contact information regarding the witness. Plaintiff’s Motion [makes NO mention, via competent evidence, of any specific attempt (s) by a process server or the like, at service of a subpoena on the witness. Finally, even IF Plaintiff’s motion had merit as to Sampson\plead\MIL #5 2 adb DEFENDANT SAMPSON’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #5 10 11 12 13 14 15 16 x7 18 12 20 21 22 23 24 25 26 27 28 “opinion” or “expert” testimony of this treating medical care provider, the motion can only be applied to opinion or expert testimony. To the extent that any percipient witness might provide non-opinion testimony (for example, to relate a comment /statement made to him/her by the Plaintiff or by Plaintiff’s GAL), that testimony has nothing to do with any expert designation. The witness should be allowed to provide that percipient testimony which has nothing to do with her status as a treating expert witness. DATED: February \\ yg 2019 ANTABLI By: Drew R. Antablin Attorneys for Defendant Sampson\plead\MIL #5 3 adb DEFENDANT SAMPSON’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY MATL STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am a resident of the State of California, County of Los Angeles; I am over the age of eighteen years and not a party to the within entitled action; my business address is 6300 Wilshire Boulevard, Suite 840, Los Angeles, CA 90048. On Feb. 11, 2019 I served the attached OPPOSITION TO MOTION IN LIMINE # 5 on the interested parties in said action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, CA, and via eFile service from OneLegal.com addressed as follows: SERVICE LIST Bernard Thalheimer, Esq. Counsel for Plaintiff Burg & Brock (818) 981-9114 (0) 4554 Sherman Oaks Ave. (818) 981-0344 (F) Sherman Oaks, CA 91403 Stephen K. McElroy, Rsq. Co-Counsel for plaintiff Ashley Paris, Esq. (805) 272-4001 CARPENTER ZUCKERMAN ROWLEY (805) 719-6858 407 Bryant Circle, Suite F Ojai, CA 93023 Gary Bacio, Esq. Lynberg & Watkins Counsel for Defendant LAUSD 1150 S. Olive St. 18" Fl. (213) 624-8700 (0) Los Angeles, California 90015 (213) 892-2763 (F) I declare under penalty of perjury that the foregoing is true and correct. Executed on Feb. 11, 2019 at Los Angeles, California. / ~~ ANDREA D. BRUCE U