PAINE VS CATHEDRAL SPRINGS CONDOMINIUMS HOMEOWNERS ASSOCIATION

Defendant’s motion in limine to preclude Plaintiff’s expert designations as duplicative and cumulative is premature at this stage, as the scope of each expert’s testimony has not yet been fully developed, and any potential duplication can be addressed through appropriate limitations on discovery or, if necessary, at trial. Additionally, Plaintiff’s expert designations are not improper on their face and comply with the applicable disclosure requirements. Any concerns regarding potential duplication or overlap in testimony are more appropriately addressed through limitations on the scope of expert testimony rather than by striking the designations in their entirety.

Biomechanics: Plaintiff designated the following two experts: (1) Bob Malek (“Mr. Malek”), a Senior Forensic Scientist and Accident Reconstruction Expert, and (2) Ilene B. Zackowitz (“Dr. Zackowitz”), an Accident Reconstruction, Biomechanics, and Human Factors Expert. Along with the designation, Plaintiff submitted the Declaration of Dan C. Bolton, providing the following explanation: • Bob Malek, B.S., M.S., J.D., is a Senior Forensic Scientist and Accident Reconstruction Expert. He is expected to testify concerning “accident reconstruction, injuries, causation of injury, mechanics of injury, human factors, all other biomechanical issues and related biomechanical aspects of accident reconstruction”; “safety, condition, design, resurfacing, maintenance, and compliance of walking surfaces in relation to industry standards and building codes, and proper installation and maintenance of concrete”; and “analysis of the scene, impact dynamics, causation, use of reports and data, and 3D simulations, computer simulations, video reenactments and enhancements, models and animations, and the foundation therefor.”

• Ilene B. Zackowitz, Ph.D., CPE, is an Accident Reconstruction, Biomechanics, and Human Factors Expert. She is expected to testify “concerning reconstruction, injuries, causation of injury, mechanics of injury, all other biomechanical issues and related biomechanical aspects of accident reconstruction as well as aspects of human behavior and other human factor issues with regard to the subject incident,” including “human perception, human reaction, motor skills, warnings, cognition, foreseeability of human behavior and response, vision, hearing, and all issues relating to human performance.” (Torsney Decl. ¶ 1, Ex. A.)

Defendant argues that Plaintiff improperly designated duplicative experts, Mr. Malek and Dr. Zackowitz, who will provide duplicate testimony on the same subject matter. Plaintiff opposes, arguing that Dr. Zackowitz is a human factors expert, who will testify about the “aspects of human behavior and other human factors issues with regard to the subject incident [including] human perceptions, human reaction, motor skills, warnings, cognition, foreseeability of human behavior and response, vision, hearing, and all issues relating to human performance,” whereas Mr.

Malek is an accident reconstruction expert, who will testify about biomechanical issues and incident reconstruction, including “analysis of the scene, impact dynamics, causation, use of reports and data, 3D simulations, computer simulations, video reenactments and enhancements, models and animations, and the foundation therefor.” (Pl.’s Opp. 4:5–14.)

At the meet and confer, Plaintiff’s counsel further clarified that Dr. Zackowitz is a human factors expert who will testify regarding human factors with respect to causation and Plaintiff’s fall, and that Mr. Malek is an accident reconstruction expert whose testimony will include incident reconstruction, biomechanical issues, as well as simulations and animations. (Joint Declaration ¶ 2.) As clarified by Plaintiff’s counsel in the Joint Declaration, Dr. Zackowitz and Mr. Malek are designated to address distinct subject areas—Dr. Zackowitz will testify regarding human factors with respect to causation and Plaintiff's fall, and Mr. Malek will testify regarding incident reconstruction, biomechanical issues, and simulations and animations.

The court rejects Defendant’s separate argument that biomechanical expert testimony is inadmissible under Evid. Code § 801(a), which limits expert opinion “to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact[.]” (Evid. Code § 801(a).) Defendant contends that such testimony would not assist the trier of fact because how Plaintiff fell is not in dispute. This argument, however, misconstrues the scope of the proffered opinions. As reflected in the expert designations, the anticipated testimony is not limited to the mechanics of the fall, but extends to causation of injury, and all other biomechanical aspects of accident reconstruction, which bear directly on liability and damages, and go beyond common experience. (Torsney Decl. ¶ 1, Ex. A.)

Life Care Planning: Plaintiff also designated the following two experts: (1) Ashea Neil in Occupational Therapy (“Dr. Neil”), and (2) Shannon Meagher (“Ms. Meagher”), a Certified Nurse Consultant. Along with the designation, Plaintiff submitted the Bolton Declaration, providing the following explanation: • Ashea Neil, Ph.D., is in Occupational Therapy. Her testimony will concern review of Plaintiff’s “medical records, medical history, the nature of Plaintiff’s injuries, treatment, disability,” her “diagnosis, prognosis, the reasonableness and necessity of Plaintiff’s past and future medical care, including costs and medical expenses, and past and future life care needs” including “orthopedic, neurologic, psychological, mental health, physical therapy, nursing and assistive care, medical devices, and other relevant medical, home and ancillary care related to Plaintiff’s life care plan, and review of earnings documents to determine [her] total past and future wage loss.”

• Shannon Meagher, RN, is a Certified Nurse Consultant. Her testimony will relate to review of Plaintiff’s “medical records,” Plaintiff’s “medical condition and state of health of Plaintiff before her fall, the orthopedic injury suffered by Plaintiff, and the reasonableness of the medical and related care provided to Plaintiff,” as well as “the prognosis and need for future care relating to her orthopedic injuries, and costs for same,” “as well as the expected sequelae from a patella fracture, with open reduction and internal fixation surgery, over her lifetime.” (Torsney Decl. ¶ 1, Ex. A.)

Defendant argues that Plaintiff improperly designated duplicative experts, Dr. Neil and Ms. Meagher, who will provide duplicate testimony on the same subject matter. Plaintiff opposes, arguing that Dr. Neil is a life care planner, who will testify about Plaintiff’s medical care and treatment, the life care plan, and her past and future wage loss (economic damages), whereas Ms. Meagher is a Certified Nurse Consultant, who will testify about Plaintiff’s future care “as outlined in the Life Care Plan for Plaintiff,” as well as what the future course of orthopedic revision treatment will entail and what Plaintiff can expect as a patient (non-economic damages).

At the meet and confer, Plaintiff’s counsel further clarified that Dr. Neil is a life care planner who will testify on future economic damages and her life care plan, and that Ms. Meagher is a Certified Nurse Consultant who will testify regarding Plaintiff’s future noneconomic damages, including future knee surgery. (Joint Declaration ¶ 3.) As clarified by Plaintiff’s counsel in the Joint Declaration, Dr. Neil and Ms. Meagher are designated to address distinct subject areas—Dr. Neil will testify regarding future economic damages and Plaintiff's life care plan, and Ms. Meagher will testify regarding Plaintiff's future non-economic damages, including future knee surgery.

Economics: In Plaintiff’s supplemental expert disclosures, Plaintiff designated Justin Klinkenberg (“Mr. Klinkenberg”), an Economist at Formuzis Hunt & Lanning, Inc., or alternatively, Timothy Lanning, also an Economist, in the event Mr. Klinkenberg is unavailable for deposition. (Torsney Decl. ¶ 2, Ex. B.) Along with the designation, Plaintiff submitted the Bolton Declaration, explaining that both Mr. Klinkenberg and Mr. Lanning are Economists, who will testify as to the concept of present value and its application to future economic losses and damages sustained by Plaintiff.

Defendant argues that Plaintiff cannot designate two economists and then decide at the time of the expert deposition which expert will be used. According to Defendant, if Mr. Klinkenberg is unavailable for his expert deposition, there are established procedures to augment or amend an expert designation under CCP §§ 2034.610 and 2034.620. Moreover, Defendant argues that Plaintiff failed to comply with expert designation requirements in her supplemental designation under CCP § 2034.300, and therefore, the entire supplemental expert designation should be stricken or grant a protective order that no economist expert be allowed at trial.

CCP § 2034.260 provides, in relevant part: “(a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing . . . . (b) The exchange of expert witness information shall include . . . [a] list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial. (c) If a witness on the list is an expert . . ., the exchange shall also include or be accompanied by an expert witness declaration . . . contain[ing] all of the following: (1) A brief narrative statement of the qualifications of each expert. (2) A brief narrative statement of the general substance of the testimony that the expert is expected to give. (3) A representation that the expert has agreed to testify at the trial. Under CCP § 2034.300, 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: (a) List that witness as an expert . . . . (b) Submit an expert witness declaration. (c) Produce reports and writings of expert witnesses . . . . (d) Make that expert available for a deposition . . . .” (CCP § 2034.300.)

Here, Plaintiff’s supplemental expert designation complies with CCP § 2034.260(b), (c)(2), and (c)(3). Plaintiff identifies both Mr. Klinkenberg and Mr. Lanning, as Economists at Formuzis, Hunt & Lanning Inc., and provides the address of the firm. (Torsney Decl. ¶ 2, Ex. B.) It states that Mr. Klinkenberg and Mr. Lanning will testify regarding present value and its application to Plaintiff’s future economic losses and damages, and confirms that both experts have agreed to testify at trial. (Id.) This sufficiently sets forth the general substance of the experts’ testimony and their agreement to testify, as required by section 2034.260(c)(2) and (3).

Although the declaration does not include a detailed narrative statement of qualifications beyond identifying the experts as “economists” and attaching their curricula vitae (“CV”), such deficiency is not fatal. (Id.) To the extent Defendant contends the CVs are “too cryptic,” such deficiencies do not constitute “unreasonable” noncompliance warranting exclusion under section 2034.300. (See Du-All Safety, LLC v. Sup. Ct. (2019) 34 Cal.App.5th 485, 499 [reversing the trial court’s “implicit conclusion that plaintiffs behaved so unreasonably as to warrant exclusion of their experts’ opinion testimony”]; Staub v.

Kiley (2014) 226 Cal.App.4th 1437, 1445–46 [noting that failure to comply with expert designation requirements can have “drastic consequences,” “plaintiffs cannot be said to have unreasonably failed to comply with defendants’ expert witness demand, so as to justify excluding plaintiffs’ experts’ testimony”].)

Motion in Limine #1 to Preclude Plaintiff’s Duplicative and Cumulative Experts DENIED Motion to Strike Duplicative Experts Designation by Plaintiff or, in the Alternative, Motion for Protective Order DENIED Jury Trial for 10.23.26 confirmed.

2. CASE # CASE NAME HEARING NAME CVPS2500145 PRIETO VS SCOTT HEARING RE: EQUITABLE CLAIMS Tentative Ruling: No tentative ruling, hearing was continued to 6.12.26.