Preview
B. MARK FONG, ESQ. (SBN 99672)
mfong@minamitamaki.com
SEEMA BHATT, ESQ. (SBN 275278)
sbhatt@minamitamaki.com
MINAMI TAMAKI LLP
360 Post Street, 8th Floor
San Francisco, Ca 94108-4903
Tel: (415) 788-9000
Fax: (415) 398-3887
MICHAEL A. KELLY (State Bar #71460)
mkelly@walkuplawoffice.com
DORIS CHENG (State Bar #197731)
dcheng@walkuplawoffice.com
ANDREW P. McDEVITT (State Bar #271371)
amcdevitt@walkuplawoffice.com
WALKUP, MELODIA, KELLY & SCHOENBERGER
650 California Street, 26 Floor
San Francisco, Ca 94108
Tel: (415) 981-7210
Fax: (415) 391-6965
ATTORNEYS FOR PLAINTIFFS
SZ HUA HUANG, INDIVIDUALLY AND AS
SUCCESSOR IN INTEREST TO WEI LUN
HUANG, DECEASED; TRINITY HUANG, A
MINOR; TRISTAN HUANG, A MINOR
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
SZ HUA HUANG, Individually and as Case No. 19CV346663
successor in interest to WEI LUN HUANG,
deceased; TRINITY HUANG, a minor; ASSIGNED FOR ALL PURPOSES TO
TRISTAN HUANG, a minor; HSI KENG HON.EVETTE PENNYPACKER
HUANG; and CHING FEN HUANG, DEPARTMENT 6
Plaintiffs,
PLAINTIFFS’ OPPOSITION
JOINDER TO TESLA S OPPOSITION TO
CALTRANS’ MOTION TO AUGMENT
TESLA INC. dba TESLA MOTORS, INC., EXPERT WITNESS INFORMATION
THE STATE OF CALIFORNIA, and DOES 1
hrough 100, Date: November 7, 2023
Time: 9:00 a.m.
Defendants. Dept.: 6
Action Filed: April 26, 2019
Trial Date: July 31, 2023
PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO
AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663
INTRODUCTION
Defendant State of California (Caltrans) seeks to augment its expert disclosure list well
past the deadline on grounds that it made a conscious decision to do an incomplete analysis of
causation during the 4 years that this case was being actively litigated. Defendant s motion should
be denied.
FACTUAL BACKGROUND
Friday,March 23, 2018, Walter Huang was killed on U.S. Highway 101 (
after colliding with the defective crash attenuator while using the autopilot features of his Tesla
Model X. Within two weeks of the crash, the National Transportation Safety Board contacted
Caltrans as part of its investigation into the root cause of the crash and death of Mr. Huang.
Within 2 months of the crash, Caltrans knew that Plaintiffs retained Mark Shattuck, P.E., Ph.D.
because he was present at the scene inspection conducted by Caltrans. On April 26, 2019,
Plaintiffs filed their Complaint, alleging that the defective crash attenuator was a direct and
proximate cause of Mr. Huang s death.
A year later on April 16, 2020, Caltrans sent case related materials to Stephen Fenton, a
accident reconstruction, who has been retained by Caltrans on numerous occasions in the past.
Mr. Fenton holds himself out as an expert in forensic engineering, accident reconstruction, vehicle
dynamics, occupant kinematics,among other things. See Devitt Decl., Exh. 1Fenton CV.)
Caltrans knew that Plaintiffs and Tesla had retained biomechanical engineersas early as
June 5, 2020, when the parties respective attorneys and retained experts attended the vehicle
inspectionMr. Fenton, Caltrans attorney (Landa Low), and Plaintiffs retained biomechanical
engineer (Dr. Mark Shattuck) were among those in attendance at this inspection.(McDevitt Decl.)
Caltrans emphasis on the deposition of Ellery Wong as the catalyst for seeking the instant
motion ignores that Ms. Wong was deposed on July 25, 202This is disingenuous. The CHP
Traffic Collision Report referenced contact between the Tesla and Wong Mazda after Mr. Huang
struck the crash attenuator. In other words, Ms. Wong s deposition did not shed new light on the
fact that the Mazda had some contact with the Tesla. Nevertheless, between April 2020 and
May 1, 2023 (date of expert disclosures)Caltrans sent a lot of documents to Mr. Fenton.
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO
SAN FRANCISCO, CA 94108
(415) 981
AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663
Caltrans, however, chose to provide Mr. Fenton with Ms. Wong s deposition until after expert
disclosures (almost a year after her deposition was taken)
On May 1, 2023, Caltrans disclosed Mr. Fenton an expert as follows:
Stephen J. Fenton is an expert in accident reconstruction. Mr. Fenton will testify
regarding accident reconstruction, including but not limited to vehicle dynamics,
severity of the crashand forces involved, and cause of the subject accident
LoveDecl., Exh. Caltrans Expert Disclosure.)
Plaintiffs disclosed Mark Shattuck, P.E., Ph.D.on the topics of human dynamics,
biomechanics, kinematics, … liability of defendants, and causation. (Love Decl., Exh. F,
Plaintiffs Expert Disclosure.) Defendant Tesla disclosed Dr. Lars Reinhart on the subjects of
injury causation and occupant kinematics … including the relationships among vehicle dynamics,
occupant kinematics, and occupant injuries (Love Decl., Exh. G, Tesla Expert Disclosure.)
The last day to supplement expert disclosures was May 22, 2023. None of the parties
supplemented their expert disclosures.
Mr. Fenton was originally set to be deposed on July 5, 2023, but his deposition was
canceled by Caltrans at the eleventh hour and Caltrans blocked the parties from downloading his
expert file until the deposition was rescheduled Mr. Fenton appeared for his expert deposition on
August 14, 2023His expert file revealed that Mr. Fenton and his team billed over 127 hours for
document review, production of visual products, dynamic analyses, accident reconstruction
analyses, and calls with Caltrans attorneys.(McDevitt Decl.)
LEGAL ARGUMENT
Caltrans failure to disclose a biomechanical engineering expert on either the May 1, 2023,
initial disclosure deadline or on the May 22, 2023, supplemental disclosure cannot be explained by
mistake or actions taken with reasonable diligence. The burden is on the moving party to justify
their failure to timely augment by showing that they acted with reasonable diligence or that their
failure was the result of mistake, surprise, inadvertence, or excusable neglect. (CCP § 2034.620
(c)(1)(2); see Scott v. Renz (1945) 67 Cal.App.2d 428, 431 ( On all motions the burden is on the
moving party in the trial court …. )). In Dickison v. Howen, the court held that the trial court did
not abuse its discretion by finding surprise when a key expert to the defense took an unexpected,
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO
SAN FRANCISCO, CA 94108
(415) 981
AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663
adverse position in his deposition that was not revealed in the defense couns s multiple meetings
with the expert. ((1990) Cal.App.3d 1471, 147778).
Caltrans Fails to Prove That It Needsa Biomechanical Engineer Expert at
Trial.
Caltransstates that the Ellery Wong deposition caused Mr. Fenton to refine his opinion
about the collision between the Tesla and the Mazda and that Mr. Fenton s reconstruction raised
new questions about when and how the Tesla driver suffered the injuries that led to this death.
(Def. Mo. at p.2:20 26.) Caltrans provides no evidence whatsoever that the initial impact with the
crash attenuator did not cause Mr. Huang s fatal injuries. Mr. Fenton s declaration does not
inform the Court that a biomechanical engineer is necessary. Ms. Love s declaration is equally
anemic. Caltrans does not evenreveal the ident ity ofa biomechanical engineer who is willing to
testify at trialor the substance of any expert s testimony to support the need for a new expert.
Caltrans admits that Caltranscounsel focused on the survivability of an impact with a
functional attenuator, which means that Caltrans had to examine the biomechanics of the impact
with the crash attenuator and the cause of death. (Love Decl. ¶ 11.) In the process of evaluating
the occupant kinematics (in this case, the f orces on the body causing death), it appears that
Caltrans concluded Mr. Huang sustained fatal injuries in the first impact with the attenuator.
Caltrans has not shown any evidence to the contrary, and therefore, any contact with the Mazda is
irrelevant to the issue of causation.
Caltrans is essentially asking this Court to condone a fishing expedition that will allow
Caltrans to re open discovery on the entire casefor no good reason
CaltransFails to Articulate a Basis for Reasonable Diligence, Mistake,
Inadvertence, Surprise, or Excusable Neglect
Caltrans cannot claim surprise, mistake, inadvertence or excusable neglect in failing to
disclose a biomechanical engineer y May 2018 (within 3 months after the crash), Caltrans knew
that Plaintiffs had retained a biomechanical engineerto opine on injury causationbecause Dr.
Shattuck was present when Caltrans shut down US for a scene inspection. By April 2019,
when Plaintiffs filed their complaint, Caltrans knew that CHP Traffic Collision R eport claimed
that Ms. Wong s Mazda collided with Mr. Huang s Tesla. By October 2020, when ltrans knew
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO
SAN FRANCISCO, CA 94108
(415) 981
AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663
that theNTSB had concluded that Ms. Wong s Tesla collided with Mr. Huang s Tesla andwhen
Mr. Fenton had billed almost 45 hours producing visual products, Caltrans claimed that itscrash
attenuator was not a substantial factor in Mr. Huang s death
altrans has the burden to show that itacted with reasonable diligence in failing to timely
augment, and, instead, Caltrans has displayed a lack of diligence. Caltrans even admits that they
specifically chose to do an incomplete reconstruction while discovery was open. (Def. Mo. at
6:15
Plaintiffs and Tesla Will Be Prejudiced If Caltrans Is Permitted to Add New
Experts an open Discovery.
The law helps the vigilant, before those who sleep on their rights. (California Civil Code
§ 3527). Caltrans motion comes only after all parties have disclosed their expert witnesses, after
the depositions of both Plaintiffs and Tesla s accident reconstructionists, after the deposition of
Tesla s biomechanical engineer, and after Caltrans refused to stipulate to a trial continuance. This
type of gamesmanship should not be permitted by this Court. (See Fairfax v. Lords ) 138
Cal.App.4th [Parties have]no right to simply delay [their designation of retained
experts until after [they] had the opportunity to view the designation timely served by [the
opposing party].
For the past 4.5 years, the parties have expended extensive time and resources toward
completing discovery so that they can finally prepare for trial. Enough is enough.
IV. CONCLUSION
Plaintiffs join in Defendant Tesla s Opposition brief and request that this Court deny
Caltrans motio n to augment the expert witness list and instigate new discovery.
Dated: October ALKUP ELODIA ELLY CHOENBERGER
By:
MICHAEL A. KELLY
DORIS CHENG
ANDREW P. McDEVITT
Attorneys for PLAINTIFFS
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO
SAN FRANCISCO, CA 94108
(415) 981
AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663
PROOF OF SERVICE
Huang v. Tesla, Inc., et. al.
Case No. 19CV346663
At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the county where the mailing took place, My business address is 650 California
Street, 26th Floor, City and County of San Francisco, CA 94108
On the date set forth below, I caused to be served true copies of the following document(s)
described as
PLAINTIFFS’ OPPOSITION AND JOINDER TO TESLA’S OPPOSITION TO
CALTRANS’ MOTION TO AUGMENT EXPERT WITNESS INFORMATION
to:
Vincent Galvin, Esq. Attorneys for Defendant
Joel Smith, Esq. (PHV) TESLA, INC.
Kevin Malloy, Esq. (PHV) Phone: (408) 279
BOWMAN AND BROOKE LLP Fax: (408) 279
1741 Technology Drive, Suite 200 Email: vincent.galvin@bowmanandbrooke.com
San Jose, CA 95110 1364 Joel.Smith@bowmanandbrooke.com
Kevin.Malloy@bowmanandbrooke.com
Ann.Scoleri@bowmanandbrooke.com
Debra.Wells@bowmanandbrooke.com
Sara.Margo@bowmanandbrooke.com
Brianna.Bowling@bowmanandbrooke.com
letty.robles@bowmanandbrooke.com
Jack.Galvin@bowmanandbrooke.com
Thomas Branigan (Pro Hac Vice) Attorneys for Defendant
BOWMAN AND BROOKE LLP TESLA, INC.
41000 Woodward Avenue, Suite 200 East Phone: (248) 205.3300
Bloomfield Hills, MI 48303 Fax: (248) 205.3399
Thomas.branigan@bowmanandbrooke.com
Kevin Malloy (Pro Hac Vice) Attorneys for Defendant
Bowman and Brooke LLP TESLA, INC.
1441 Main Street, Suite 1200 Columbia, SC Kevin.Malloy@bowmanandbrooke.com
Lauren O. Miller, Esq. Attorneys for Defendant
Tesla, Inc. TESLA, INC.
901 Page Avenue MillerL@tesla.com
Fremont, California 94538
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO
SAN FRANCISCO, CA 94108
(415) 981
AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663
Jeanne Scherer, Acting Chief Counsel Attorneys For Defendant
G. Michael Harrington, Deputy Chief STATE OF CALIFORNIA
Counsel Phone: 510
Landa Low, Deputy Attorney Fax: 510
Rosemary Love, Deputy Attorney Email: landa.low@dot.ca.gov
Andrew Gokoffski, Deputy Attorney rosemary.love@dot.ca.gov
Caltrans Legal Division Andrew.Gokoffski@dot.ca.gov
Physical Address: maria.cordonero@dot.ca.gov
111 Grand Ave., Suite 11 genoveva.mercado@dot.ca.gov
Oakland, CA 94612
Mailing:
PO Box 24325
Oakland, CA 94623 1325
B. Mark Fong Counsel for Plaintiffs
Seema Bhatt Phone: (415) 788
Minami Tamaki LLP Fax: (415) 398
101 Montgomery Street, Suite 825 MFong@MinamiTamaki.com
San Francisco, CA 94104 SBhatt@MinamiTamaki.com
eoparowski@minamitamaki.com
ESullivan@minamitamaki.com
EEverett@MinamiTamaki.com
BY ELECTRONIC TRANSMISSION: Pursuant to CCP 1010.6(e), Icaused the above
titled document(s) to be electronically served on the persons at the electronic service addresses
listed.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on October 25, 2023, at San Francisco, California.
Karina Lara
LAW OFFICES OF
ALKUP ELODIA ELLY
SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO
SAN FRANCISCO, CA 94108
(415) 981
AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663
Preview
B. MARK FONG, ESQ. (SBN 99672) mfong@minamitamaki.com SEEMA BHATT, ESQ. (SBN 275278) sbhatt@minamitamaki.com MINAMI TAMAKI LLP 360 Post Street, 8th Floor San Francisco, Ca 94108-4903 Tel: (415) 788-9000 Fax: (415) 398-3887 MICHAEL A. KELLY (State Bar #71460) mkelly@walkuplawoffice.com DORIS CHENG (State Bar #197731) dcheng@walkuplawoffice.com ANDREW P. McDEVITT (State Bar #271371) amcdevitt@walkuplawoffice.com WALKUP, MELODIA, KELLY & SCHOENBERGER 650 California Street, 26 Floor San Francisco, Ca 94108 Tel: (415) 981-7210 Fax: (415) 391-6965 ATTORNEYS FOR PLAINTIFFS SZ HUA HUANG, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO WEI LUN HUANG, DECEASED; TRINITY HUANG, A MINOR; TRISTAN HUANG, A MINOR SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA SZ HUA HUANG, Individually and as Case No. 19CV346663 successor in interest to WEI LUN HUANG, deceased; TRINITY HUANG, a minor; ASSIGNED FOR ALL PURPOSES TO TRISTAN HUANG, a minor; HSI KENG HON.EVETTE PENNYPACKER HUANG; and CHING FEN HUANG, DEPARTMENT 6 Plaintiffs, PLAINTIFFS’ OPPOSITION JOINDER TO TESLA S OPPOSITION TO CALTRANS’ MOTION TO AUGMENT TESLA INC. dba TESLA MOTORS, INC., EXPERT WITNESS INFORMATION THE STATE OF CALIFORNIA, and DOES 1 hrough 100, Date: November 7, 2023 Time: 9:00 a.m. Defendants. Dept.: 6 Action Filed: April 26, 2019 Trial Date: July 31, 2023 PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663 INTRODUCTION Defendant State of California (Caltrans) seeks to augment its expert disclosure list well past the deadline on grounds that it made a conscious decision to do an incomplete analysis of causation during the 4 years that this case was being actively litigated. Defendant s motion should be denied. FACTUAL BACKGROUND Friday,March 23, 2018, Walter Huang was killed on U.S. Highway 101 ( after colliding with the defective crash attenuator while using the autopilot features of his Tesla Model X. Within two weeks of the crash, the National Transportation Safety Board contacted Caltrans as part of its investigation into the root cause of the crash and death of Mr. Huang. Within 2 months of the crash, Caltrans knew that Plaintiffs retained Mark Shattuck, P.E., Ph.D. because he was present at the scene inspection conducted by Caltrans. On April 26, 2019, Plaintiffs filed their Complaint, alleging that the defective crash attenuator was a direct and proximate cause of Mr. Huang s death. A year later on April 16, 2020, Caltrans sent case related materials to Stephen Fenton, a accident reconstruction, who has been retained by Caltrans on numerous occasions in the past. Mr. Fenton holds himself out as an expert in forensic engineering, accident reconstruction, vehicle dynamics, occupant kinematics,among other things. See Devitt Decl., Exh. 1Fenton CV.) Caltrans knew that Plaintiffs and Tesla had retained biomechanical engineersas early as June 5, 2020, when the parties respective attorneys and retained experts attended the vehicle inspectionMr. Fenton, Caltrans attorney (Landa Low), and Plaintiffs retained biomechanical engineer (Dr. Mark Shattuck) were among those in attendance at this inspection.(McDevitt Decl.) Caltrans emphasis on the deposition of Ellery Wong as the catalyst for seeking the instant motion ignores that Ms. Wong was deposed on July 25, 202This is disingenuous. The CHP Traffic Collision Report referenced contact between the Tesla and Wong Mazda after Mr. Huang struck the crash attenuator. In other words, Ms. Wong s deposition did not shed new light on the fact that the Mazda had some contact with the Tesla. Nevertheless, between April 2020 and May 1, 2023 (date of expert disclosures)Caltrans sent a lot of documents to Mr. Fenton. LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO SAN FRANCISCO, CA 94108 (415) 981 AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663 Caltrans, however, chose to provide Mr. Fenton with Ms. Wong s deposition until after expert disclosures (almost a year after her deposition was taken) On May 1, 2023, Caltrans disclosed Mr. Fenton an expert as follows: Stephen J. Fenton is an expert in accident reconstruction. Mr. Fenton will testify regarding accident reconstruction, including but not limited to vehicle dynamics, severity of the crashand forces involved, and cause of the subject accident LoveDecl., Exh. Caltrans Expert Disclosure.) Plaintiffs disclosed Mark Shattuck, P.E., Ph.D.on the topics of human dynamics, biomechanics, kinematics, … liability of defendants, and causation. (Love Decl., Exh. F, Plaintiffs Expert Disclosure.) Defendant Tesla disclosed Dr. Lars Reinhart on the subjects of injury causation and occupant kinematics … including the relationships among vehicle dynamics, occupant kinematics, and occupant injuries (Love Decl., Exh. G, Tesla Expert Disclosure.) The last day to supplement expert disclosures was May 22, 2023. None of the parties supplemented their expert disclosures. Mr. Fenton was originally set to be deposed on July 5, 2023, but his deposition was canceled by Caltrans at the eleventh hour and Caltrans blocked the parties from downloading his expert file until the deposition was rescheduled Mr. Fenton appeared for his expert deposition on August 14, 2023His expert file revealed that Mr. Fenton and his team billed over 127 hours for document review, production of visual products, dynamic analyses, accident reconstruction analyses, and calls with Caltrans attorneys.(McDevitt Decl.) LEGAL ARGUMENT Caltrans failure to disclose a biomechanical engineering expert on either the May 1, 2023, initial disclosure deadline or on the May 22, 2023, supplemental disclosure cannot be explained by mistake or actions taken with reasonable diligence. The burden is on the moving party to justify their failure to timely augment by showing that they acted with reasonable diligence or that their failure was the result of mistake, surprise, inadvertence, or excusable neglect. (CCP § 2034.620 (c)(1)(2); see Scott v. Renz (1945) 67 Cal.App.2d 428, 431 ( On all motions the burden is on the moving party in the trial court …. )). In Dickison v. Howen, the court held that the trial court did not abuse its discretion by finding surprise when a key expert to the defense took an unexpected, LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO SAN FRANCISCO, CA 94108 (415) 981 AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663 adverse position in his deposition that was not revealed in the defense couns s multiple meetings with the expert. ((1990) Cal.App.3d 1471, 147778). Caltrans Fails to Prove That It Needsa Biomechanical Engineer Expert at Trial. Caltransstates that the Ellery Wong deposition caused Mr. Fenton to refine his opinion about the collision between the Tesla and the Mazda and that Mr. Fenton s reconstruction raised new questions about when and how the Tesla driver suffered the injuries that led to this death. (Def. Mo. at p.2:20 26.) Caltrans provides no evidence whatsoever that the initial impact with the crash attenuator did not cause Mr. Huang s fatal injuries. Mr. Fenton s declaration does not inform the Court that a biomechanical engineer is necessary. Ms. Love s declaration is equally anemic. Caltrans does not evenreveal the ident ity ofa biomechanical engineer who is willing to testify at trialor the substance of any expert s testimony to support the need for a new expert. Caltrans admits that Caltranscounsel focused on the survivability of an impact with a functional attenuator, which means that Caltrans had to examine the biomechanics of the impact with the crash attenuator and the cause of death. (Love Decl. ¶ 11.) In the process of evaluating the occupant kinematics (in this case, the f orces on the body causing death), it appears that Caltrans concluded Mr. Huang sustained fatal injuries in the first impact with the attenuator. Caltrans has not shown any evidence to the contrary, and therefore, any contact with the Mazda is irrelevant to the issue of causation. Caltrans is essentially asking this Court to condone a fishing expedition that will allow Caltrans to re open discovery on the entire casefor no good reason CaltransFails to Articulate a Basis for Reasonable Diligence, Mistake, Inadvertence, Surprise, or Excusable Neglect Caltrans cannot claim surprise, mistake, inadvertence or excusable neglect in failing to disclose a biomechanical engineer y May 2018 (within 3 months after the crash), Caltrans knew that Plaintiffs had retained a biomechanical engineerto opine on injury causationbecause Dr. Shattuck was present when Caltrans shut down US for a scene inspection. By April 2019, when Plaintiffs filed their complaint, Caltrans knew that CHP Traffic Collision R eport claimed that Ms. Wong s Mazda collided with Mr. Huang s Tesla. By October 2020, when ltrans knew LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO SAN FRANCISCO, CA 94108 (415) 981 AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663 that theNTSB had concluded that Ms. Wong s Tesla collided with Mr. Huang s Tesla andwhen Mr. Fenton had billed almost 45 hours producing visual products, Caltrans claimed that itscrash attenuator was not a substantial factor in Mr. Huang s death altrans has the burden to show that itacted with reasonable diligence in failing to timely augment, and, instead, Caltrans has displayed a lack of diligence. Caltrans even admits that they specifically chose to do an incomplete reconstruction while discovery was open. (Def. Mo. at 6:15 Plaintiffs and Tesla Will Be Prejudiced If Caltrans Is Permitted to Add New Experts an open Discovery. The law helps the vigilant, before those who sleep on their rights. (California Civil Code § 3527). Caltrans motion comes only after all parties have disclosed their expert witnesses, after the depositions of both Plaintiffs and Tesla s accident reconstructionists, after the deposition of Tesla s biomechanical engineer, and after Caltrans refused to stipulate to a trial continuance. This type of gamesmanship should not be permitted by this Court. (See Fairfax v. Lords ) 138 Cal.App.4th [Parties have]no right to simply delay [their designation of retained experts until after [they] had the opportunity to view the designation timely served by [the opposing party]. For the past 4.5 years, the parties have expended extensive time and resources toward completing discovery so that they can finally prepare for trial. Enough is enough. IV. CONCLUSION Plaintiffs join in Defendant Tesla s Opposition brief and request that this Court deny Caltrans motio n to augment the expert witness list and instigate new discovery. Dated: October ALKUP ELODIA ELLY CHOENBERGER By: MICHAEL A. KELLY DORIS CHENG ANDREW P. McDEVITT Attorneys for PLAINTIFFS LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO SAN FRANCISCO, CA 94108 (415) 981 AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663 PROOF OF SERVICE Huang v. Tesla, Inc., et. al. Case No. 19CV346663 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the county where the mailing took place, My business address is 650 California Street, 26th Floor, City and County of San Francisco, CA 94108 On the date set forth below, I caused to be served true copies of the following document(s) described as PLAINTIFFS’ OPPOSITION AND JOINDER TO TESLA’S OPPOSITION TO CALTRANS’ MOTION TO AUGMENT EXPERT WITNESS INFORMATION to: Vincent Galvin, Esq. Attorneys for Defendant Joel Smith, Esq. (PHV) TESLA, INC. Kevin Malloy, Esq. (PHV) Phone: (408) 279 BOWMAN AND BROOKE LLP Fax: (408) 279 1741 Technology Drive, Suite 200 Email: vincent.galvin@bowmanandbrooke.com San Jose, CA 95110 1364 Joel.Smith@bowmanandbrooke.com Kevin.Malloy@bowmanandbrooke.com Ann.Scoleri@bowmanandbrooke.com Debra.Wells@bowmanandbrooke.com Sara.Margo@bowmanandbrooke.com Brianna.Bowling@bowmanandbrooke.com letty.robles@bowmanandbrooke.com Jack.Galvin@bowmanandbrooke.com Thomas Branigan (Pro Hac Vice) Attorneys for Defendant BOWMAN AND BROOKE LLP TESLA, INC. 41000 Woodward Avenue, Suite 200 East Phone: (248) 205.3300 Bloomfield Hills, MI 48303 Fax: (248) 205.3399 Thomas.branigan@bowmanandbrooke.com Kevin Malloy (Pro Hac Vice) Attorneys for Defendant Bowman and Brooke LLP TESLA, INC. 1441 Main Street, Suite 1200 Columbia, SC Kevin.Malloy@bowmanandbrooke.com Lauren O. Miller, Esq. Attorneys for Defendant Tesla, Inc. TESLA, INC. 901 Page Avenue MillerL@tesla.com Fremont, California 94538 LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO SAN FRANCISCO, CA 94108 (415) 981 AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663 Jeanne Scherer, Acting Chief Counsel Attorneys For Defendant G. Michael Harrington, Deputy Chief STATE OF CALIFORNIA Counsel Phone: 510 Landa Low, Deputy Attorney Fax: 510 Rosemary Love, Deputy Attorney Email: landa.low@dot.ca.gov Andrew Gokoffski, Deputy Attorney rosemary.love@dot.ca.gov Caltrans Legal Division Andrew.Gokoffski@dot.ca.gov Physical Address: maria.cordonero@dot.ca.gov 111 Grand Ave., Suite 11 genoveva.mercado@dot.ca.gov Oakland, CA 94612 Mailing: PO Box 24325 Oakland, CA 94623 1325 B. Mark Fong Counsel for Plaintiffs Seema Bhatt Phone: (415) 788 Minami Tamaki LLP Fax: (415) 398 101 Montgomery Street, Suite 825 MFong@MinamiTamaki.com San Francisco, CA 94104 SBhatt@MinamiTamaki.com eoparowski@minamitamaki.com ESullivan@minamitamaki.com EEverett@MinamiTamaki.com BY ELECTRONIC TRANSMISSION: Pursuant to CCP 1010.6(e), Icaused the above titled document(s) to be electronically served on the persons at the electronic service addresses listed. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 25, 2023, at San Francisco, California. Karina Lara LAW OFFICES OF ALKUP ELODIA ELLY SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR PLAINTIFFS OPPOSITION AND JOINDER TO TESLA S OPPOSITION TO CALTRANS MOTION TO SAN FRANCISCO, CA 94108 (415) 981 AUGMENT EXPERT WITNESS INFORMATION CASE NO. 19CV346663