Jane Doe v W Kiernan O'Callaghan, MD et al
Jane Doe v W Kiernan O'Callaghan, MD et al
Case Number
21CV03762
Case Type
Hearing Date / Time
Wed, 04/10/2024 - 10:00
Nature of Proceedings
CMC; Motion to Compel
Tentative Ruling
Plaintiff: Jennifer Fiore, Sophia Achermann
Defendant: William Clinkenbeard
Non Party: Denise Lawrence
Issue
The 4/11/24 Motion to Compel. Without knowing how expansive Plaintiff intended this exercise to be, the Court permitted Plaintiff to file a motion to compel further deposition questions, which was set on shortened time, for April 10, 2024. The Motion was filed and served on 3/29. The Opposition was filed and served on 4/5/24. The reply was filed and served on 4/8. The Court has read and considered a total of about 180 pages submitted.
RULINGS[1]
1. The Motion to Compel: For the reasons set out below the Motion To Compel is DENIED.
2. The CMC: The Court has read and considered these documents; as for Plaintiff’s report that the deposition of Ms. Gonzalez and completing the deposition of Detective Harrison are necessary for Plaintiff to be adequately prepared for trial, no motion to compel or any discovery motion has been filed related to the issue and it is the first time the Court has been noticed of the issue and it is vastly late in these proceeding to now address the issue in the customary manner; counsel are urged to meet and confer and get the depos done; the options left for the Court, if they are not done, are limited. As for Defendants report that (1) Defendants will file motions to sever/bifurcate such that issues of defendant Dr. O'Callaghan’s alleged liability will be tried first comes very late; (2) that Defendants will file a motion for protective order regarding depositions of Sansum-affiliated witnesses comes very late; (3) that Defendants may file a motion for summary judgment/adjudication is not possible; (4) motions in limine shall be filed one week in advance of the current trial date..
But with all that said the Court has already announced – early and on several occasions - that the trial will not be continued a 4th time.
The Motion
Filed 3/29/24;[2] 3-pages; summarized; moves the Court for an order compelling responses to deposition questions, and reasonable follow-up questioning, in connection with the continued depositions of Defendant Sansum Clinics’ Person Most Qualified (“PMQ”) Dr. Marjorie Newman and Defendant W. Kiernan O’Callaghan, and the production of documents.
Supported by the Declaration of Jennifer Fiore; 68 pages; summarized; attaches 9 exhibits; the deposition transcript of former Sansum Clinic Risk Manager Carrillo is not yet available.
Defendants have allowed discovery on whether Dr. O’Callaghan was accused of sexual misconduct while at Sansum Clinic. According to Dr. O’Callaghan and Medical Director, Marjorie Newman, the answer is none other than the subject Plaintiff (inappropriate breast touching) and Jane Doe from November 11, 2018 (Case No. 23CV00415, inappropriate breast and labia touching), and the other women from approximately seven years before 2021 that Dr. O’Callaghan told the Santa Barbara Police Department about – in that instance, the patient felt that Dr. O’Callaghan inappropriately exposed her breasts.
Supported by Points and Authorities; 12 pages; summarized; brings this motion to compel responses to deposition questions, and reasonable follow up questioning, in connection with the further depositions of Defendant Sansum Clinic’s Person Most Qualified (PMQ) and W. Kiernan O’Callaghan, and the production of documents requested and relied upon by Aaron Mendoza and Melissa Carrillo.
As to deposition further testimony, Plaintiff moves to compel further testimony from Defendant Sansum Clinic’s PMQ, Dr. Marjorie Newman and Defendant W. Kiernan O’Callaghan on the two topics: (1) suspension, discipline and termination of privileges; and (2) use of chaperones during examinations.
As to documents, Plaintiff moves to compel the production of two categories of documents requested in the deposition notice for Defendant Sansum Clinic’s employee, Aaron Mendoza and were relied upon by Mr. Mendoza and Melissa Carrillo in preparation for each of their deposition testimony. Good cause exists for granting this motion. The documents requests at issue are an email and an incident report relating to the allegations of the prior Jane Doe of November 11, 2018.
Plaintiff asks rhetorically that it is unclear why Defendants continue to fight this battle. The existence of a suspension, discipline or termination of privileges is also needed to form the basis of the opinions of Plaintiff’s expert witnesses. For example, had Dr. O’Callaghan been disciplined, e.g., retrained for example, and he did not comply with that retraining on the date of the incident that is evidence of liability for negligent supervision and retention.
Plaintiff should be allowed to cross-examine and test Sansum PMQ’s knowledge and see if it contradicts with Dr. O’Callaghan in order to be prepared for trial. On March 27, 2024, the Court ordered that Question 27 relating to termination be answered along with reasonable follow up.
The deposition questions at issues were asked in order to comply with the leading case law on background checks and denials or termination of privileges.
The fact of a background check or reference check is not protected under Section 1157 both as to it being part of an administrative task and whether a peer review committee did in fact evaluate a physician for staff privileges.
The facility actions based on committee investigations are not immune from discovery. While the committee’s recommendation may be protected, the actions taken are not.
Defendants have the burden of establishing that the instructions not to answer under Section 1157 were proper.
Reviews undertaken as a matter of course are not protected from disclosure. Section 1157 potentially provides immunity the peer review materials themselves, specifically the documents and testimony related to the peer review committee’s proceedings. Matters that are not “records” or “proceedings” of a peer review committee are not protected from discovery under Evidence Code § 1157.
Information developed or obtained by administrators or others that does not disclose investigative and evaluative activities of the peer review committee is not rendered immune from discovery under Section 1157 merely because it is placed in the possession of the committee or made known to committee members.
This is not an 1157 issue. Whether Dr. O’Callaghan was required to have a chaperone present with female patients is relevant to the standards of care, Plaintiff proving notice, duty and breach of duty and needed for Plaintiff’s expert witnesses to testify at trial.
Defendants are trying to hide some facts by objecting to questions that seek relevant and admissible evidence that is allowed under California case law. Defendants have allowed discovery on prior complaints – which would be the reason for requiring a chaperone.
Even if, arguendo, the questions invade the purview of peer review under Section 1157, as explained with respect to Topic 1, the existence of a suspension, discipline or termination of privileges is discoverable and also needed to form the basis of the opinions of Plaintiff’s expert witnesses.
Defendants cannot cloak a fact that pre-existed peer review and/or was created through an administration function outside the peer review process by wrapping it into the peer review process. That is not the intent of 1157 and should not be allowed to happen in this very serious case involving sexual assault of Plaintiff.
As for document productions, the testimony of Sansum Clinic’s former Risk Manager, Melissa Carrillo, and Sansum Clinic’s Patient Liaison, Aaron Mendoza, shows the existence of at least two responsive documents to the document requests: (1) Mr. Mendoza’s February 25, 2019 email to Ms. Carrillo after he met with the November 11, 2018 Jane Doe; and (2) an incident report.
On March 25, 2024, Mr. Mendoza testified that he relied on his email to testify as he did not have an independent recollection. Further questioning showed that Mr. Mendoza did in fact review another document, the incident report sent to him by Ms. Carrillo. Both the email and the incident report are responsive to Plaintiff’s two requests for production of documents. Mr. Mendoza had notes, but shredded them after sending the email even though the incident remains unresolved (and he testified he only shreds once incidents are resolved).
The email and incident reports are discoverable.
Attorney-client privilege does not attach where an employee is an “independent witness” or where the “dominant purpose” of a report or statement is not intended as communication towers.
Unlike interview notes prepared by counsel, statements written or recorded independently by witnesses neither reflect an attorney’s evaluation of the case nor constitute derivative material, and therefore are neither absolute nor qualified work product.
Another basis for compelling the production of the email and the incident report is that neither Mr. Mendoza, nor Ms. Carrillo, had an independent recollection of the meetings with Jane Doe.
Plaintiff requests that her motion to compel be granted in its entirety.
Supported by a Separate Statement; 23 pages; The following are the questions to which responses are required along with follow-up.
Dr. Newman Depo.
#1. Q. At any time was Dr. O'Callaghan suspended, yes or no?
#2. Q. At any time were Dr. O'Callaghan's privileges terminated to be able to practice at Sansum Clinic? I'm asking for a yes or no.
Dr. O’Callaghan Depo.
#3. Q. Have you ever been disciplined?
#4. Q. So, Doctor, have you ever been terminated from any position in New Hampshire?
#5. Q. Were you terminated from Hilton Head as a hospitalist?
#6. Q. Were your privileges suspended or revoked from St. Francis?
Dr. Newman Depo.
#7. Q. After learning of the allegations of Jane Doe from November 11, '18, did you advise Dr. O'Callaghan to have a chaperone present during any examinations with females?
#8. Q. Did Sansum Clinic require a chaperone to be present in any examinations by Dr. O'Callaghan of female patients after 11/11 of 2018?
#9. Q. Was it the policy of Sansum Clinic to have a chaperone present for female examinations conducted by Dr. O'Callaghan after 11/11/18?
#10. Q. Knowing that there had been an allegation from November 11, 2018, did you want to do anything to protect Dr. O'Callaghan from further complaints by having a chaperone present?
#11. Q. Is there any policy? Does Sansum Clinic have a policy for requiring a chaperone when a doctor has been -- or any provider, a nurse, has been - where there's an allegation about sexual misconduct?
#12. Q. Does Sansum have a policy to have a chaperone present after there's been an allegation of sexual assault by any provider at the clinic?
#13. Q. You've already testified that having a chaperone is not a disciplinary policy; correct? So I'm asking is there a policy when there's an allegation to have a chaperone present to protect both the provider and the patient?
Dr. O’Callaghan Depo.
#14. Q. At any time did Sansum Santa Barbara Medical Clinic, Inc., require you to have a chaperone in the room during an examination of a female patient?
#15. Q. Are you required to have a chaperone during examinations of female patients?
Plaintiff requested the two categories of documents in the deposition notice to Mr. Mendoza, verbatim, follows:
#1. Any and all DOCUMENTS that reference, reflect, or relate to your interactions Jane Doe on or about February 25, 2019 regarding her examination with Dr. O’Callaghan on November 11, 2018, including but not limited to handwritten or electronic notes and reports.
#2. Any and all COMMUNICATIONS that reference, reflect, or relate to your interactions Jane Doe on or about February 25, 2019 regarding her examination with Dr. O’Callaghan on November 11, 2018.
Defendants’ Opposition
Filed 4/5/24; 11 pages; summarized. Issues that are moot: Question Nos. 3-6 ask Dr. O'Callaghan whether he has ever been disciplined (No. 3) or terminated from any position in New Hampshire (No. 4) or terminated from Hilton Head as a hospitalist (No. 5), or had his privileges suspended/revoked from St. Francis (No. 6). Dr. O'Callaghan has already answered question No. 3 (Exh. A, depo Dr. O'Callaghan dated December 20, 2023, at 31 :23-24 ["Q. Were you ever disciplined? A. No."].)
As to questions 4-6, defendants have agreed to provide a verified written response to these questions. These questions are consequently moot.
Question Nos. 1-2 ask PMQ witness Dr. Marjorie Newman to confirm the same information provided by Dr. O'Callaghan as to whether Dr. O'Callaghan was suspended or had his privileges terminated; Dr. Newman would only have access to this information by virtue of her role as Medical Director for Sansum Clinic, in which capacity Dr. Newman oversees utilization management, risk management, and quality management activities.
Alexander v. Superior Court (1993) 5 Cal.4th 1218 does not provide authority which entitles plaintiffs herein to obtain the requested information from a PMQ witness; the Court's decision in Alexander permits questioning of the defendant physician regarding denial of privileges. Alexander does not state or suggest that this information may be obtained from persons who would only know of such information vis-a-vis participation in an organized medical committee under Evid. Code § 1157(a); Court in Alexander held that Evid. Code § 1157 barred the lower court's discovery order permitting discovery into the proceedings and records of a medical staffs committee (Alexander, supra, 5 Cal.4th at p. 1220).
Plaintiff incorrectly contends that denial/suspension/revocation of medical staff privileges is discoverable as part of the hospital's administrative process. Not so. The dual structure of a hospital consists of an administrative governing body, which oversees the operations of a hospital, and an "organized medical staff'' (composed of health care professionals), which is generally responsible for ensuring that its members provide adequate care to patients.
Even assuming for argument's sake that the act of revoking or terminating a physician's privilege is administrative in nature, plaintiffs herein have posed Question Nos. 1 and 2 to Dr. Newman, who is the Medical Director of Sansum Clinic responsible for overseeing risk management, utilization review and quality management activities. Since Dr. Newman's actions as the Medical Director of Sansum Clinic are integral to the operation of the organized medical committees that have responsibility for ensuring the competence and qualifications of Sansum Clinic's medical staff, any questions relating to Dr. Newman's knowledge of any actions taken with respect to Dr. O'Callaghan's privileges at Sansum Clinic impermissibly invade Evid. Code §1157.
Plaintiff also contends that this Court previously ordered Dr. Newman to answer to a similar question, No. 27, in the Minute Order dated March 27, 2024. The Minute Order states that Questions 29 and 31 may be asked and answered except as set forth hereunder but this ruling does not include Question 27. In the section of the Minute Order addressing Dr. Newman's testimony and Question No. 28, this Court ruled as follows: "The questioned will not be answered. The objection to the question is sustained." Although plaintiffs continue to maintain that the Court's ruling was incorrect in this regard plaintiffs have not sought reconsideration of this ruling.
Plaintiff contends that these questions to Dr. Newman are necessary in order to " ... cross examine and test Sansum PM Q's knowledge and see if it contradicts with Dr. O'Callaghan in order to be prepared for trial.... " In Scripps Memorial Hospital v. Superior Court (1995) 37 Cal.App.4th 1720, the Appellate Court held that documents otherwise protected by Evid. Code § 1157 cannot be obtained for use as impeachment.
Plaintiff seeks to obtain further information from Dr. O'Callaghan about whether Sansum Clinic required him to have a chaperone present during examination of female patients These questions were previously answered by Dr. O'Callaghan as follows: “if I was doing a breast examination, specifically a breast examination, then a chaperone, yes. The gist of plaintiffs' argument in support of further responses is that there was an allegation of sexual abuse made against Dr. O'Callaghan in November of 2018, and therefore, plaintiffs should be allowed to discover whether Dr. O'Callaghan had been disciplined: However, questions regarding this specific subject matter-i.e., discipline and retraining-were previously answered by Dr. O'Callaghan in his deposition taken on or about December 20, 2023.
As for questions to Dr. Newman, Nos. 7-13 Dr. Newman was asked in essence whether Sansum Clinic required Dr. O'Callaghan to have a chaperone present during examination of female patients following the allegation of inappropriate contact made by another patient in November 2018. Again, according to plaintiffs, this discovery is sought to determine whether any disciplinary actions or re-training were imposed as to Dr. O'Callaghan. Dr. Newman however testified that Sansum Clinic's policy regarding chaperones is not a disciplinary policy.
The deposition of Aaron Mendoza took place on March 29, 2024. Defendants' objections to the deposition notice were served via email on March 23, 2024. Since objections to a deposition notice must be served "three calendar days" before the deposition (CCP §2025.410(a)), defendants' objections were timely.
The email and incident report are protected by attorney client privilege. Morfin v. State of California (1993) 12 Cal.App.4th 812, 819, and D.I Chadbourne v. Superior Court (1964) 60 Cal.2d 723 are distinguishable; Sierra Vista Hospital v. Superior Court of San Luis Obispo County (1967) 248 Cal.App.2d 359, is a case that is directly on point and issued a writ prohibiting the lower court from enforcing an order requiring the production of an incident report; it is well-established that, where a party claims the attorney-client privilege, the communication sought to be suppressed is presumed confidential and the opposing party has the burden of proof to show the communication is one not made in confidence (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 824 [citing Evid. Code §917].) Here, defendants have submitted the declaration of Ms. Carrillo, Sansum Clinic's Risk Manager at the time the report was made, who confirms that the incident report and attendant email were intended to remain confidential and were intended to be transmitted to defendants' attorney in the event of litigation. Plaintiffs have produced no evidence to the contrary.
Documents reviewed in preparation for deposition do not lose their privileged status simply because the documents were reviewed in preparation for deposition; plaintiffs' citation to International Ins. Co. v. Montrose Corp. (1991) 231 Cal.App.3d 1367 is not on point; there was no waiver of attorney-client privilege since defendants served objections expressly asserting this objection in response to plaintiff’s requests for production appended to the deposition notices.
Supported by the Declarations of William Clinkenbeard and Melissa Carrillo and Exhibits A–F; 54 pages; read and considered.
Supported by Defendants’ Opposition to Separate Statement in Support of Plaintiff’s Motion to Compel; 30 pages; read and considered.
Plaintiff’s Reply
Filed 4/8/24; 4 pages; summarized; addresses each category at issue.
Questions 3-6 to Dr. O’Callaghan. Defendants are improperly trying to narrate responses when Plaintiff is entitled to basic information.
The issue regarding Dr. O’Callaghan’s prior discipline, suspension and/or termination are not moot. In fact, the Court granted Defendants’ motion to quash the out-of-state subpoenas. The only source of information now is Dr. O’Callaghan and Defendants’ Sansum Clinic and Sansum Santa Barbara Medical Center, Inc. The Alexander v. Superior Ct. (1993) 5 Cal.4th 1218 decision fully supports Plaintiff being able to ask Dr. O’Callaghan any and all questions regarding discipline, suspension and/or termination from his prior employment in New Hampshire, Kansas and North Carolina. “[A] plaintiff is not prevented from " ... deposing a physician and asking whether he or she was previously denied staff privileges, or by reviewing public records to determine whether the physician has suffered a malpractice judgment or disciplinary action ... " (Id. at 1223, n.4.)
The questions at issue are not moot. Plaintiff was entitled to dig deeper than a broad question asked in an earlier session of the deposition. Plaintiff’s counsel even met and conferred about that fact during the second session. Defendant’s only objection at the time was 1157. A retrospection claim of mootness is disingenuous and not cover for why Dr. O’Callaghan was improperly instructed not to answer in the first place. Plus, defense counsel, William Clinkenbeard stipulated that Plaintiff’s counsel did not have to ask each and every question in order to preserve Plaintiff’s right to compel.
Time and again, Plaintiff has had to file motions after the improper use of an 1157
objection. Defendants admit the objections were improper in relying on the Alexander case.
Questions 1-2 to Dr. Newman, Sansum Clinic PMQ. These questions are in the same vein as those to Dr. O’Callaghan.
Hospitals have administrative functions separate and apart from peer review committees. There is likely information contained within Dr. O’Callaghan’s administration file that concern any prior discipline, suspension or termination. As previously noted, administration of the facility, including administrative documents and information in administration, is not protected from disclosure by 1157, and must be provided in response to discovery requests. “The responsibilities of hospital administrators pertaining to the quality of in-hospital care will, of course, usually be related to the similar duties of medical staff committees. Nonetheless, the responsibilities of hospital administrators are independent of those resting with medical staff committees.” (Santa Rosa Memorial Hosp. v. Superior Ct. (1985) 174 Cal.App.3d 711, 724.)
Questions Regarding Chaperones: Dr. Newman/Sansum PMQ Questions 7-13 & Dr. O’Callaghan Questions 14-15. Defendants’ opposition says it all by focusing on retraining.
If Dr. O’Callaghan was retrained, that is discoverable. If the decision to retrain came
from a peer review activity then only that may be protected under Section 1157 – not whether Dr. O’Callaghan has to have a chaperone or not in order to treat female patients.
That would also be an administrative function outside the peer review process, which would require Sansum Clinic’s PMQ to answer.
Defendants admit that the Hinson case supports Plaintiff’s position by relying on the
quote, “‘the plain fact’ of denial suspension or termination of staff privileges may be
discoverable, “... as opposed to the underlying facts of the investigation and evaluation.”
(Hinson v. Superior Ct. (1989) 215 Cal.App.3d 1477; a suspension or limitation on privileges would include being unable to examine female patients without a chaperone.
Under the Alexander case, Dr. O’Callaghan should have to answer the questions
he was improperly instructed not to answer under Section 1157. The prior deposition question to Dr. O’Callaghan cited in Defendants’ opposition (“when would you have a chaperone”?) was a general question, was not a requirement and was not specific to any period of time.
Defendants cannot retroactively object on the grounds something was asked and
answered (when it actually was not) when the only objection was 1157 and the instruction to answer was based on that.
Document Production of Emails, Notes & Incident Report. Defendants’ objections were not timely as they were served on Saturday. Service by Saturday is not effective as it is a holiday and not a Court day. (C.C.P. Section 12a). Service is therefore effective from the next Court day, which was Monday, the day before the deposition.
The deposition of Aaron Mendoza took place on Tuesday, March 26, 2024. Defendants attempt to distinguish D.I. Chadbourne v. Superior Ct. (1964) 60 Cal.2d 723, claiming that Ms. Carrillo and Mr. Mendoza are not witnesses to the sexual molestation on
November 11, 2018.
Their argument is a red herring. Ms. Carrillo and Mr. Mendoza are witnesses to their communications with that Jane Doe. Mr. Mendoza and Ms. Carrillo spoke directly with Ms. Doe and documented what was said. Ms. Carrillo created an “incident report” of her, Mr. Mendoza and Dr. Newman’s interactions with Ms. Doe on February 25, 2019.
The case of Sierra Vista Hospital v. Superior Ct. (1967) 248 Cal.App.2d 359 has no bearing on the interactions with Ms. Doe over three months after the incident. The February 25, 2019 interactions with Ms. Doe occurred a month after the Defendants learned of her complaint through the police.
Defendants waived the attorney work-product privilege by not objecting on those
grounds. Defendants spend a lot of time arguing over the attorney-client communication
privilege, but the emails and incident report are not attorney-client communications, and should be produced.
Plaintiff objects to declaration of Melissa Carrillo. Her declaration is untrustworthy as it is self-serving. She testified that she reviewed her notes from the meeting with Ms. Doe in preparation for her deposition.
Defendants’ opposition highlights how they continue to try it square pegs in round
holes.
Plaintiff requests that her motion to compel be granted in its entirety.
The Court’s Conclusions re: the Motion(s) to Compel.
The Court has read and considered all the documents including those summarized above. The Motion(s) will be DENIED.
In the first place Defendants’ arguments are persuasive.
Secondly, the motion comes vastly too late in these proceedings. The trial date is May 1, 2024. If Plaintiff’s motion(s) to compel were set on regular notice, they could not be heard until at least the end of April 2024, which would not leave enough time to accomplish the deposition and have it read and signed and made available for the experts to consider or the Court to review. This is not a complicated case. These questions and this document production should have been completed in 2023 if not 2022 – not within 3 weeks of the trial date; on the eve of trial. The case is more than 2 years old, and Plaintiff asked for and obtained the trial date they wanted.
Thirdly, Plaintiff’s request for “reasonable follow-up” makes the request impossible to complete in the 3 weeks before trial; Plaintiff does not begin to address what “follow-up” is contemplated and how and when the Court would rule on the objections that will be raised. These lawyers, with vast experience have agreed to very little and the likelihood of further law and motion requests is inevitable. The devil is in the detail and non is provided.
Fourth, this Motion suffers the same problems and the same fate as Defendants Motion To Compel a Further Mental Examination of Plaintiff.
CMCS Filed
By Plaintiff; acknowledges 5/1/24 trial date; estimates 7-10 day trial; reports there are 2 deposition issues:
1. Excely Gonzalez, continued: On March 29, 2024, since both Plaintiff's counsel was not available on April 4 due to other work and family commitments, Plaintiff's counsel asked for another date. As of April 2, 2024, which was when the parties last spoke about this issue and completing her deposition the week of April 8, 2024, Defendants have not agreed to a deposition date.
2. Continued deposition of former Santa Barbara Police Detective Megan Harrison. Plaintiff noticed and took her deposition on March 17, 2024 to accommodate the witness' availability. The parties were not able to complete her deposition because Detective Harrison had not reviewed her investigative materials, reports and recorded statements relating to the first allegations of Dr. O'Callaghan from November 11, 2018. Since Detective Harrison was on maternity leave, the parties agreed that her deposition could be continued after her return to the Santa Barbara District Attorney’s Office on April 1, 2024. As of April 2, 2024, which was when the parties last spoke about this issue and completing both Ms. Gonzalez and Detective Harrison the week of April 8, 2024, Defendants have not agreed to a deposition date.
Both Ms. Gonzalez and Detective Harrison were timely noticed to occur before the nonexpert discovery cut-off of April 1, 2024. Defendants agreed to both Ms. Gonzalez and Detective Harrison depositions being taking/completed after April 1, then backtracked from those agreements. Plaintiff relied on those agreements in not taking Ms. Gonzalez's deposition on March 30 in defense counsel's absence and not completing Detective Harrison's while she was on maternity leave. The deposition of Ms. Gonzalez and completing the deposition of Detective Harrison are necessary for Plaintiff to be adequately prepared for trial.
By Defendant, acknowledges 5/1/24 trial date; estimates 12-15 day trial; Defendants will file motions to sever/bifurcate such that issues of defendant Dr. O'Callaghan’s alleged liability will be tried first. Defendants will file a motion for protective order regarding depositions of Sansum-affiliated witnesses. Defendants may file a motion for summary judgment/adjudication and will file motions in limine.
The Court’s Conclusions re: CMCO
The Court is puzzled by the CMCSs; there is virtually no time for Defendants to file motions to sever/bifurcate, a protective order regarding depositions of Sansum-affiliated witnesses, or a motion for summary judgment/adjudication; there is virtually no time for the Court to get involved in the 2 discovery disputes that Plaintiff now identifies for the first time after discovery has closed; in summary, it is vastly too late to ask the Court to micromanage all these issues. The Court has already accommodated counsel by addressing 6 “discovery” motions within 14 days, none of which were noticed in accordance with the applicable law.
This case was filed in 9/2021; the Court is committed to getting 50% of its cases tried in 12 months; 85% tried in 18 months and all cases tried in 2 years. Those deadlines went by the boards. The case was first set for trial in 1/2022 for one year later in 1/2023 by agreement of counsel; subsequently continued to 9/2023; subsequently continued for a third time by stipulation of the parties [on 7/12] to 5/1/24. The Court will not continue it a 4th time.
Motions in limine, witness lists, exhibit lists, jury instructions, and jury verdict form all properly word-smithed, and trial briefs to be submitted in 2 weeks on 4/24.
[1] The Court apologizes for grammatical and typographical mistakes. Time to wordsmith has been impacted.
[2] Extraordinarily late in these proceedings.