It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)
On appeal, the Easterby court distinguished its circumstances from that of Kennemur and Jones, stating: The present case differs from Kennemur, Jones and [Bonds v. Roy (1999) Cal.4th 140 [83 Cal.Rptr.2d 289] in one salient respect: Defendants learned approximately three months before trial that Brown would go beyond his original deposition testimony and offer a causation opinion at trial … [U]nlike the defendants in Kennemur and Jones, and Bonds, defendants in this case had the opportunity to take Brown’s deposition in light of his changed opinion and prepare for cross-examination and rebuttal of his testimony. The elements of unfair surprise and prejudice present in Kennemur and Jones, and Bonds are entirely absent in this case. Id. at 780.
The defense acknowledges that plaintiffs in this case did not receive as much advance knowledge regarding Dr. White’s life expectancy testimony as the defendants did in Easterby. However, plaintiffs still had an opportunity to meet and confer with the defense on the issue of Dr. White’s testimony for a period of time after the completion of Heather Xitco’s deposition. Xitco’s deposition was completed on March 30. Trial is not set to begin until April 19. Plaintiffs could have contacted the defense about re-deposing Dr. White on the limited issue of life expectancy, and could have imposed conditions on the deposition to make it more convenient for them, such as requiring the deposition to take place in their office to cut down on attorney time.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The completion of this deposition would not have required much time or effort. Plaintiffs also could have required the defense to reimburse Dr. White for his appearance fee, which it would have been willing to do. In fact, the defense is still willing to do all of these things to placate the plaintiffs in this regard.
Instead, plaintiffs chose not to meet and confer on the issue during the three weeks that were still available before the start of trial, and have run straight to court by filing this motion, in contravention of the Discovery Act. There is no unfair surprise or prejudice relative to Dr. White’s life expectancy testimony, just as was the case in Easterby. Plaintiffs can still examine Dr. White on this issue, even during trial. It would be disingenuous for them to assert otherwise, as they currently have a motion pending to allow them to depose witness Joyce White during trial.
The Court should avoid the drastic measure of excluding Dr. White’s life expectancy testimony. Rather, it should further the overlying purpose of the Discovery Act and allow the parties to facilitate the completion of a second session of the doctor’s deposition so that plaintiffs will have all the information they require for trial.
CONCLUSION
In light of the foregoing, defendants National Healthcare Corporation and Memorial Hospital, Inc., respectfully request that the Court deny plaintiffs’ Motion in Limine #3.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.