Motion to Tax Costs in NINA RUSANOVSCHI VS. YOSHIO NAKASHIMA ET AL| Trellis.Law

On January 02, 2019 a Motion,Ex Parte was filed involving a dispute between Rusanovschi, Nina, and Does 1 To 100, Nakashima, Yoshio, for PERSONAL INJURY/PROPERTY DAMAGE - VEHICLE RELATED in the District Court of San Francisco County.

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1 Walter H. V/a1ker, III [State Bar #63117]
It-qtþy_Vl. Hamilton-[State Bar #9027b)
2 \ryALKER, HAMILTON & KOENIG LLP
50 Francisco Street, Suite 460 ELECTRONICALLY
3 San Francisco, CA 94133-2108
Telephone: (41 5) 986-3339 F I L E D
Superior Court of California,
4 Facsimile: (415) 986-1618 County of San Francisco

5 Boris E. Efron [State Bar #79993] 03/26/2020
Clerk of the Court
ÇailJ, Lamchick [State Bar #l ll]591 BY: ERNALYN BURA
6 LAW OFFICES OF BORIS E. EFRON Deputy Clerk
130 Portola Road
7 Portola Valley, CA 94028-7 825
Telephone: (650) 85 1-8880
8 Facsimile: (650) 85 I -3001

I Attorneys for Plaintiff
NINA RUSANOVSCHI
10

11
SUPEzuOR COURT OF CALIFORNIA, CITY AND COLTNTY OF SAN FRANCISCO
12
CIVIL UNLIMITED JURISDICTION
13

14
NINA RUSANOVSCHI, No. CGC 19572476
15
Plaintiff,
16 PLAINTIFF'S OBJECTION TO, AND
MOTION TO TAX IN WHOLE OR IN
17 v PART, DEFENDANT'S
MEMORANDUM OF COSTS
18
YOSHIO NAKASHIMA, DATE:
19 TIME:
DEPT.: 504
20 Defendants.
Verdict Entered: March 2,2020
21

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN WHOLN OR IN PART, DEFENDANT'S MEMORANDUM OFCOSTS
1 TABLE OF CONTENTS
2
Summary 1

3 ARGUMENT 2
4 I. PLAINTIFF, AS THE PREVAILING PARTY,IS
ENTTTLED TO COSTS UNDER CCp $$ 1032 AND
5 1033.5; AND DEFENDANT, AS THE LOSING
PARTY, IS NOT ENTITLED TO COSTS 2
6
il. DEFENDANT',S $998 OFFER DOES NOT
7 PROVIDE IT V/ITH A COST ENTITLEMENT 2

I il EVEN IF DEFENDANT HAD MADE A VALID
$998 OFFER, A DECTSION V/HETHER TO
I AWARD
STILL BE
EXPERT WITNESS
VESTED IN THE
FEES
TRIAL
WOULD
COURT'S
10 SOUND DISCRETION 4

11
A. Assuming Defendant is Entitled to Claim Anv Exoert
Fee, His Õlaim As to Dr. Bradshaw Does Noi Pasis the
12
Multi-Level Test 5

13
1. Dr, B=r?$ghal-r' EitþerMisled the Jury
or is Misleading the Court 5

14 2. Dr. Bradshaw's Testimony Establishes
That Much of His Billing Occuned
15 Before Defendant's 999ã'Offei Úãs 7
Served
16
3. The Time Dr. Bradshaw Did Snend on
17 This Case is Neither Reasonabie Nor 8
Reasonably Necessary
18
B. Mr. Gillihan, A Man of Strikingly Limited
19 Qualifications, Charg ed 523,289. 5 0 for Testimony That
Was Deceptive, Misleading,Illegal and of No Value to the
20 Jury, Which Disregarded it 10

21
C. Mark Abramson, A Dentist, Was a Non-Factor In this Case
and His Fees Are Neither Authorized Nor Reasonably
22
Necessary t2

23
D. Alexis Smith-Baumann, Psy.D., Provided Questionable
Testimony and Greatly Over-Billed t2
24 CONCLUSION t4
25
26
27
28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN WHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS
-i-
1

TABLE OF AUTHORITIES
2

3 CASES PAGE(S)
4
Chqaban v, Wet Seal, Inc.
5
(20t2) 203 Cat App 4'n 49,54-55 ..... 5

Chen v. Interinsurance Exchange
6 (2008) 164 Cal App 4'n II7, I2l ...... J

7 Peoole v. Sanchez
ç.otø¡ 63 cal 4th 665 13
I
Rouland v. Pacffic Speciality Ins. Co.
I (2013) 220 Cal App 4'n 280,2 89 5

10 Valentino v. Elliott Sav-On Gas, Inc.
( 1 98 8) 20 |
I
Cal App 3d 692, 697 -698, 699 -7 01 ................ J
11
Il'einberg v. Safeco Ins. Co. of America
(2004) 114 Cal App 4'n 1075,1086 . J
12

13
STATUTES
14
ccP $ee8 o (1) r,2,3,4,5,7,8,r0,12,
15 13, T4
16 2

17 2

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN WHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS
-ii-
1 Summary

2 Defendant Yoshio Nakashima, who had a verdict returned against him in the amount of
3 $963,264.59 on February 27,2020, has filed a Memorandum of Costs seeking $119,563.39 on the

4 alleged ground that this much in costs was incurred by defendant since December 19,2019, when

5 he served a CCP $998 Offer of $1,000,000.
6 Defendant errs in making claims for costs that are reserved for the prevailing party, which
7 defendant most decidedly is not. Of those costs to which he is legally allowed even to make a

I claim, about 25o/o are attributed to the fees of David Bradshaw, who is said to have billed
I $29,250.00 despite the fact that on February 2I,2020,he testified in court under oath that he had

10 only billed $7,500 and that he expected to "bill a similar amount" for reviewing additional records,
11 plus billing his time in court. (Trial Testimony Rough Copy ("TTR") of February 2l proceedings

12 at 153:1 I-19, attached to Declaration of Walter H. V/alker, III, as Exhibit 1).

13 Nearly as much in costs was claimed for Timothy Gillihan, CPA, who testified as an expert

14 economist over the objection of plaintiff. Mr. Gillihan, who is said to have billed 523,757.04,has,
15 by his own admission, only been an economist for a year and a half. His testimony was factually
16 and legally effoneous and was totally rejected by the jury, which applied none of his economic

17 contentions to the verdict.
18 Another multi-thousand-dollar amount was billed for a dentist, Dr. Mark Abramson, who

19 established in his deposition that he was of no value whatsoever to defendant or his defense.
20 A fourth expert fee, that of $ 18,620 for Alexis Smith-Baumann, was substantially more

21 than she said she was charging while giving testimony of questionable legal and ethical validity.
22 Additionally, ifdefendant is entitled to any costs under CCP $998, which remains to be

23 determined, he is only entitled to such costs as were incurred after he served the $998 offer. He

24 has failed to establish that any costs other than aportion of expert fees were incurred after his date

25 of service.

26
27
28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX ¡N WHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS

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1 ARGUMENT
2 I.

3 PLAINTIFF, AS THE PREVAILING PARTY, IS ENTITLED TO
COSTS UNDER CCP $$ 1032 AND 1033.5; AND DEFENDANT,
4 AS THE LOSING PARTY, IS NOT ENTITLED TO COSTS
5 In accordance with CCP $1032(b), plaintiff, having been awarded$963,264.59 ina
6 disputed damages case, is the prevailing party and is entitled as a matter of right to recover her
7 costs.

I Those costs are set out at CCP $1033.5 (a) (1) - (14) and include (1) filing, motion and jury

I fees; (3) taking, recording and transcribing necessary depositions together with travel expenses to
10 attend depositions; (4) service of process; (7) ordinary witness fees; (9) transcripts of court
11 proceedings ordered by the court; (1 1) court reporter fees; (12) court interpreter fees; (13) models

12 and blowups of exhibits.

13 Defendant Nakashima, as the losing (i.e., non-prevailing) party, is NOT entitled to such

14 costs. Yet he has erroneously claimed them anyway. He does not get filing and motion fees

15 ($32.00), he does not get jury fees ($1,023.75), he does not get deposition costs ($32,113.66), he

16 does not get court reporter fees ($9,967.48), and he does not get model/exhibit fees ($736.99).

17 V/hat remains is his claim to $75,689.54 in oowitness fees," which plaintiff disputes on four
18 grounds:

19 (1) The $998 Offer was not in keeping with the provisions of the code;
20 (2) Wi¡h her entitlement to costs, plaintiff s net recovery exceeds
defendant's $998 Offer;
21
(3) Much of defendant's expert fees were incurred before defendant
22 served his 9998 Offer; and

23 (4) Defendant's expert charges cannot be justified as fair, reasonable or
necessary.
24
25 II.
26 DEFENDANT'S $998 OFFER DOES NOT PROVIDE IT V/ITH A
COST ENTITLEMENT
27
Defendant offers as Exhibit A to his Memorandum of Costs a copy of his "Offer to
28
PLAINTIFF''SOBJECTION TO, AND MOTION TO TAX IN lryHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS
Page2ot 14
1 Compromise Pursuant to CCP Section 998" served on December 19,2019. The burden of proving
2 that this offer was valid falls "squarely on the offering party." 'theinberg v. Safeco Ins. Co. of
3 America (2004) ll4 Cal App 4'n 1075, 1086.

4 The offer was flawed

5 First, such an offer by a defendant is intended to bring the case to a close by having

6 judgment entered against the defendant. Subparagraph (bxl) of the statute says that if the offer is

7 accepted, "the offer with proof of acceptance shall be filed and the clerk or the judge shall enter

I judgment accordingly." Defendant's offer did not allow that.

I Rather, the offer says it is contingent not on a judgment but on a 'oGeneral Release of all

10 known and unknown claims...in favor of Defendant Yoshio Nakashima." Further, it specifically
11 says that the Release is to contain "No admission of liability by released parties."
12 Thus, not only was no judgment to be entered, but plaintiff was to give up what she had

13 already achieved: Admission of liability by defendant as set forth in defendant's verified responses

14 to Requests for Admissions. (See plaintifls Trial Exhibit No. 8, which was not put into evidence

15 on stipulation of the admissions, and see the pre-marked Verdict, questions I and2).
16 Further still, defendant's offer required plaintiff to defend and indemnify him if anyone

17 liened or even made claims against him'oas a result of the acts allegedly committed by Defendant
18 giving rise to this lawsuit." Such obligations have been deemed too uncertain to trigger $998 cost-
19 shifting penalties. See Chen v. Interinsurance Exchange (2008) 164 Cal App 4tn ll7 ,l2l
20 Valentino v. Elliott Sav-On Gag Inc. (1988) 201 Cal App 3d 692,697-698,699-701.

21 If, somehow, defendant were to get beyond these restrictions, he still would not qualify for
22 all his costs regardless of when they were incurred because of the specific wording of the offer. In
23 the offer's paragraph 2 on page 2, beginning at line 11, it reads:

24 You are further notified that if Plaintiff fails to obtain a more
favorable judgment upon trial of the above-entitled action, Plaintiff
25 cannot recover costs but must pay to the Defendant not only the
Defendant's taxable costs incuhéd from the time of this offer, but
26 also a reasonable sum to cover costs of services of expert witnesses...

27 Thus, defendant, by its own threat of consequences, admits that it could only obtain

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN \ryHOLtr OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS
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1 "taxable costs incurred from time of this offer." He then inexplicably tries to dun plaintiff for all
2 his costs, regardless of whether they were "taxable" or when they were incurred.

3 Moreover, defendant's offer misstates the law. CCP $998 does not state that a plaintiff
4 judgment oocannot
who fails to obtain a more favorable recover cost," but only that such a plaintiff

5 "shall not recover her postoffer costs." (CCP $998 (c) (1).
6 And defendant misstates the law yet again when the offer he provided Nina Rusanovschi

7 informs her that a failure to dismiss her case with no admission of liability by an already
I admittedly liable party, and with a promise to defend and indemnifu defendant against unknown
I claims, would mean that she o'must pay to the Defendant...areasonable sum to cover costs of
10 services of expert witnesses."

11 There is no "must" as defendant claims and the offer should be recognized as having no

12 meaning other than as an uffeasonable, unacceptable contract proposal.

14 ilI
15 EVEN IF DEFENDANT HAD MADE A VALID $998 OFFER, A
DECISION WHETHER TO AWARD EXPERT V/ITNESS FEES
16 WOULD STILL BE VESTED IN THE TRIAL COURT'S SOLIND
DISCRETION
17
CCP$998(c)(1) makes it discretionary whether a plaintiff has to pay a defendant's expert
18
fees if the plaintiff fails to obtain a more favorable judgment than defendant's valid 9998 offer of
19
settlement. The amount of plaintiff s judgment in this case has yet to be determined, but it will
20
include the jury's award plus costs awarded to plaintiff as the prevailing party. (Plaintiff s
21
Memorandum of Costs is before the Court now).
22
Even if the judgment were not in excess of the $998 offer, there still would be no
23
entitlement by defendant to expert fees. Rather, 9998 (c) (1) makes clear:
24
In...any action or proceeding other than an eminent domain action,
25 the court or arbitrator, in llg-discretion, lUAy require the plaintiff to
pay areasonable sum'tõcwer costs oïiñãiervïces of eipert
26 wiinesses-æl|uafly incurred and reasonablv necessary irieither, or
both, preparJrtion ñffiia-rbitration, oiãuriñg ttiãÏ or arbiÍátion,
27 of the case by defendant. (Emphasis added)

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PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN WHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS

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1
Thus, in order for defendant to collect any expert fees under CCP $998 the Court must

2 choose to award them after finding that such fees are in a reasonable amount, were actually

3 incurred, and were reasonably necessary. See Rouland v. Pacffic Speciality Ins. Co. (2013) 220

4 Cal App 4'h 280,289.

5 As the court said in that case with respect to the defendant, "Pacific Specialty is not entitled

6 to its expert witness fees as a matter of right," citing Chaaban v. Wet Seal, Inc. (2012) 203 Cal

7 App 4'n 49,54-55. The Rouland courtthen went on to say (ld.):

I The trial court's findings
reasonable and that the expert
that Pacific Specialty's offers were
fees Pacific Specialty sought were
I reasonable speak to whethèr
satisfied. They
the statute's requiremènts
do not equate to an exercisebf the trial
were
court's
10 discretion that Pacific Specialty should recover some or all of its
expert fees.
11
Thus, defendant Nakashima in the instant case has a multi-level task ahead of him before
12
he can be awarded any expert fees under CCP $998:
13
- He must prove that the $998 offer was valid;
14
- He must prove that the expert fees were actually incurred;
15
- He must establish that the overall sum he seeks is reasonable;
16
- He must establish that the services of each expert were reasonably
17 necessary; and

18 - He must convince the Court that they are appropriate to the
circumstances of this case.
19
Defendant's claims for all four of his experts fail to meet the requirements of one or more
20
of those tests.
21

22
A. Assuming Defendant is Entitled to Claim Any Expert
23 Fee, His Claim As to Dr. Bradshaw Does Not Pass
the Multi-Level Test
24
I
25

26 Defendant's Memorandum of Costs claims Dr. Bradshaw spent 48.75 hours working on

27 this case at a rate of $600 per hour for a total charge of 829 ,250. Yet at trial on February 2l , 2020,

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN \ryHOLE OR IN PART, DEFENDANT'S MEMORANDUM OFCOSTS

Page 5 of 14
1
Dr. Bradshaw told the jury he had only billed $7,500 to date and expected to bill an equal amount

2 thereafter, plus his time for being in court. (Exhibit 1, TTR at I45). Dr. Bradshaw could only have

3 been telling the truth ifhe billed $14,250 for being in court. At $600 per hour that billing would

4 only have occurred if he spent over 24 hours in court, which he most decidedly did not.

5 Defendant might argue that Dr. Bradshaw was simply mistaken in underestimating his

o billing, but such mistakes have consequences and Dr. Bradshaw is a seasoned testifier.

7 Accompanying this motion is the Declaration of plaintifls counsel, which includes as Exhibit I
I the rough copy of Dr. Bradshaw's trial testimony on cross-examination on February 21, pps. 140-

I 154. There, under oath, Dr. Bradshaw told the jury he testifies about 2/sof the time for defense, he

10 has done many defense medical examinations over the years andT5Yo of his income is earned

11 doing medical examinations for lawyers.

12 Dr. Bradshaw has not only testified for defense counsel Gray on prior occasions, he

13 testified for plaintifls counsel once, "Long time ago" (TTR of February 24,2020 at43, attached to

14 Declaration of Walker as Exhibit 2).

15 Dr. Bradshaw's experience is thus suffrciently extensive that he had to know he was going

16 to be asked how much he had billed and he was honor-bound to tell the truth. Moreover, an expert

17 testifier such as Dr. Bradshaw was expected to bring his billing records or at least have them up to

18 date, but he chose the more wily route ofjust saying he had only billed $7,500 and would bill a

19 similar amount for his work between the first billing and his trial appearance.

20 The jury could be expected to rely on that. He was, after all, under oath. The jury could

21 think he was reasonable in his billings and thus should be considered reasonable in his opinions.

22 The jurors could think he did not need to put in any more time because the matters at issue were so

23 simple or obvious. They could even think the defendant was actually paying Dr. Bradshaw out of

24 his pocket and so the noble doctor was holding down the costs.

25 But the fact of the matter is that there was a purpose to Dr. Bradshaw's testimony and,

26 consistent with the jury instructions, it is expected that the jury did not ignore it. Nor, we submit,

27 should that testimony be ignored by the Court now considering whether Dr. Bradshaw's fees were

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN WHOLD OR IN PART, DEFENDANT'S MEMORANDUM OFCOSTS

Page 6 of 14
1
actually incurred, were reasonable, were reasonably necessary, and were appropriate.

3 2. Dr. Bradshaw's Testimony Establishes That Much of
tiåa" ccuned B efore D e fendant' s $ 9 9 8 o ffer
4 Hriri Lt

5 On February 2l,Dr. Bradshaw testified that he charged defense counsel $600 per hour and

6 that he wrote a l2-page single-spaced report to her on December 12,2019. (Exhibit 1, P.145 of

7 TTR).

I The 998 offer, according to defendant's Memorandum of Costs, was served December 19.

I How long does it take to write a I2-page single-space report? Neither defendant nor Dr.

10 Bradshaw has told us. But Dr. Bradshaw did clari$ that his $7,500 bill to defendant was for

11 services performed as of his first deposition and his first deposition in this case was given on

12 January 29,2020 (Exhibit 1, TTR at 144:23-145:4).

13 $7,500 divided by 600 equals 12.5 hours.

14 In those alleged 12.5 hours, Dr. Bradshaw not only prepared the l2-page report of

15 December 12,2019, but also a2l-page report dated November 12,2019, in which he "summarized

16 Nina Rusanovschi's medical records and her deposition." (Exhibit 1, TTR at 145:16-20).

17 In addition, within those 12.5 hours he also claimed to have examined plaintiff for one hour

18 and spent another half hour preparing his notes of that examination on November 12,2019. (1d,, af

19 149:21-15I:1). Thus, he claims to have read and summarized all the medical records plus

20 plaintiff s deposition and written 33 pages of single-spaced reports in 1l hours.

21 Either Dr. Bradshaw is a phenomenally fast reader, summarizer and writer, or he was not

22 telling the truth. And if he is a phenomenon and was able to do all those things in 11 hours, plus

23 prepare for his deposition, then what could he possibly have done in all those other hours that led

24 to a quadrupling of his billing to almost $30,000?

25 From his testimony, it is clear to any sentient observer that most of Dr. Bradshaw's work

26 on this case was done prior to December 19, 2019, and cannot be charged to plaintiff under CCP

27 $ee8.

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN WHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS

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1
3 $ti,ftri3å'''#ffRil R¿*år:iî,"ñJ:::f';'" "
2
Dr. Bradshaw was trained as a physiatrist. As such, he made clear he was not going to
3
testiff to certain areas of medicine or treatment - - yet he billed for the things he was not going to
4
address. Note for example the following, set out in Exhibit 1, Rough Transcript of February 21 at
5
l5l:2-16:
6
a. One of the things you've just told us is that you're not going
7 to make or give any opinion with respect to ear, nose and
because that's not your area of specialization,
I :H3:#",ers
I A. I'm not going to give any expert opinion on that,
except that I already know she broke her nose, so
10 so I've made that diagnosis
*3f,f,å åü"iirm,t'
11
a. And you know that Dr. Leon Lipson is an ENT
12 specialist, don't you?

13 A. Yes,I do.

14 a. And so one of the things that you billed Ms. Gray for
was your review of the ENT specialist's deposition.
15
A. Yes.
16
He then proceeded to write a post-998 report to defense counsel Gray detailing everything
17
Dr. Lipson told Ms. Gray in his deposition. (Id. at 151:17-152:8), In other words, he, at $600 an
18
hour, wrote a report to Ms. Gray telling her what the deponent had already told her.
19
In this regard, he explained (id. at 152:9-153:2):
20
a. Did Ms. Gray ever balk at how much you were
21 charging her for all these reviews?

22 A. No, not at all.

23 a. Did she ever tell you that $600 per hour was too
much?
24
A. No.
25
a. Did she ever tell you that you were billing too many
26 hours?

27 A, No.

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN IryHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS

Page I of 14
1
XXX
2 a. Is it true that you felt you had no limitations on the
you could put in on this case at $600
3 3f#g!."ttime
4 A. Correct.

5 It is appropriate at this juncture to compare this admission with his claims that he had only

6 incurred $15,000 worth of billings at the time of this testimony and his current claim of $29,250

7 worth of billings. To the extent these three claims can be made to fit together, the result is not

I flattering to Dr. Bradshaw.

I Nor was the ENT review the only unnecessary incurrence of billing perpetrated by Dr.

10 Bradshaw.

11 He read, reviewed and parroted to Ms. Gray all the depositions she had taken. (See Exhibit

12 1, TTR 145:25-149:20). He then denied giving Ms. Gray a copy of his deposition summary report

13 despite the fact that she not only had the report but had marked it for identification (Trial Exhibit

14 20e).

15 Nor was this the only questionable testimony of Dr. Bradshaw. After having contended that

16 he read the police report and having been forced to confess that the police report did not say what

17 he told the jury it said (Exhibit l, TTR at 163:3-4), he provided the following (id. at 164:5-8):

18 a. In trying to find out what her medical injuries were,
was [it]of any interest to you to know the force of the
19 impact?

20 A. No.

21 If this were true, then the time spent by Dr. Bradshaw reviewing the police report (and he

22 claimed it on several occasions) was not reasonably necessary. The same is true for the myriad

23 instances in which he, a doctor, spent time writing written reports to a lawyer in which he imparted

24 thoroughly worthless information such as he did in reviewing the deposition of Dr. Arzumanova,

25 where he said "the deposition guidelines were gone over, there was no reason why she could not

26 give her best testimony that day." (Exhibit 1 at 147:17-148:l).

27 Dr. Bradshaw, earning 75% of his income from medical-legal matters and having no

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN \ryHOLE OR IN PÄRT, DEFENDANT'S MEMORANDUM OF COSTS
Page 9 of 14
1
constraints on his time or his billings, was clearly not serving the interests of anyone but himself in

2 running vp a$29,250 bill. That may have been acceptable to defendant, but it does not qualifu as

3 being reasonable or reasonably necessary under CCP $998 (c) (1).

4
5 B. Mr. Gillihan, A Man of Strikingly Limited
Qualifications, Charg ed $23,2{9. 5 O for Testimony
þ That Was Deceptive, Misleading,Illegal and of No
Value to the Jury, Which Disregarded it
7
Mr. Gillihan was offered as an expert economist. He testified that in general one does not
I need any credentials in order to call oneself an economist. (TTR of February 24,2020, af 140:15-
I 18, Exhibit 3 to Declaration of Walker). The credential he offered was that he got a master's
10
degree from USF in20l8. (Id. at 14l:4-16).
11
On the stand, he proved himself to be glib, loquacious, and unrestrained by facts or law.
12
He opined as to the value of plaintiff s lost wages by taking her last full year of earnings and
13
carrying that forward without ever allotting her a raise or cost of living increase for the rest of her
14
work-life. (Id. at 14l:25-142:5).
15
Eschewing any consideration of Nina Rusanovschi's personality, plans, dreams, skills, or
16
background, he declared that even ifthe accident had not occurred she would have stopped
17
working forever on August 9,2020. (Id. at 142ll-143:18).
18
Without taking into account that Nina was educated in the very different Soviet system and
19
went to school to train to be a chef, he assigned her a 9th -grade education and applied a statistic to
20
her that was designed for an American who dropped out of school altogether after the 9thgrade.
21
(Id. at 146:6-147:16).
22
To hold numbers down, he clashed with the Ph.D. economist Barry Ben-Zion over the
23
meaning of "average," giving no deference to Dr. Ben-Zion's 50 years of expert experience and
24
basing his own opinion on nothing more than a Trumpian opinion of his own infallibility. (Id. at
25
147:8-24).
26
Whereas a point of tremendous significance to Nina Rusanovschi was the fact that she
27
needed a certain amount of quarters to qualifu for social security benefits, Mr. Gillihan ignored that
28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN WHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS

Page 10 of 14
1
motivation and informed the jury that, based on his statistic of women with a 9th grade education,

2 Nina would have simply retired without bothering to get the necessary quarters. (Id. at 143:10-16;

3 176:16-178:15). In so doing, he disregarded the fact that Nina, though married to a man in

4 Moldova, was living as a single woman, totally dependant on herself for shelter and sustenance.

5 V/hen he addressed future medical costs for Nina, he only put numbers to those that Dr.

6 Bradshaw, in a 10- to 15-minute telephone conversation, told him Nina needed. The pellucid

7 dishonesty of this approach was evident to all when he admitted that his opinion as to the cost of
I Nina's future health care was formed just by taking the items that Dr. Bradshaw told him she needs

I and ignoring those items that Dr. Bradshaw either disputed or simply did not address. (Id. at 157:6-

10 1e).

11 Finally, Mr. Gillihan blatantly and insistently ignored the Court's jury instruction, CACI

12 3204A, by refusing to be bound by the requirement that'oTo find present cash value, you must

13 determine the amount of money that, if reasonably invested today, will provide Nina Rusanovschi

14 with the amount of her future damages." Instead, he applied a 3% discount rate to various costs

15 while admitting there is nowhere that Nina could get a3Yo interest rate on money invested today.

16 (Id. at 158:19-24). His justification was, "I'm an expert, I'm giving an expert opinion." (Id. at

17 159:4).

18 Given his youth and inexperience, Mr. Gillihan will no doubt come to learn that it is not

19 enough just to proclaim oneself an expert, but at trial his testimony was a waste of everyone's time

20 and this was reflected in the fact that not one of his figures was employed by the jury (not even the

21 past wage loss that would have given Nina more recovery than plaintiff s own expert calculated).

22 Finally, as with Dr. Bradshaw, Mr. Gillihan seems to have played fast and loose with his

23 billing. Testifuing on February 24, as the next to last witness, he told the jury he charged $400 per

24 hour for all his work except deposition and trial testimony, for which he charges $500 per hour.

25 (Id. at 175:l-9). And, he testified as he was about to leave the stand, that he had "worked probably

26 20to25 hours." (Id.at 175:10-13). 25hours at400 perhouris$10,000. Evenat$500itwould

28
PLAINTIFF'S OBJECTION TO, AND MOTION TO TAX IN WHOLE OR IN PART, DEFENDANT'S MEMORANDUM OF COSTS

PagelloÍ 14

Case Info

Judge

John Kennedy Stewart Track Judge’s New Case

Case No.

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Document Filed Date

March 26, 2020

Case Filing Date

January 02, 2019

County

Parties

ALLARD, NANCY SANDOVAL Attorney for the Defendant
DOES 1 TO 100 Defendant
GRAY, WILMA J Attorney for the Defendant
LAMCHICK, GAIL JUDITH Attorney for the Plaintiff
NAKASHIMA, YOSHIO Defendant
RUSANOVSCHI, NINA Plaintiff
WALKER, WALTER HERBERT Attorney for the Plaintiff
Boris Efron Attorneys for Plaintiffs
Timothy Hamilton Attorneys for Plaintiffs
Walter Fitzgerald Attorney
Cyrus Nazarian Attorneys for Defendants
Peter Koenig Attorney
Agnes Nazarian Attorneys for Plaintiffs
Peter Cohen Attorneys for Plaintiffs
Andre Nazarian Attorney
Erin Robinson Attorney

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Motion,Ex Parte: NINA RUSANOVSCHI VS. YOSHIO NAKASHIMA ET AL

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