Preview
THERESA J.BARTA (State Bar No. 150995)
BARTA LAW
4041 MacArthur Blvd., Suite 280 JAN 1 6 2018
Newport Beach, California 92660 kof
Tel. (949)
s”M"CIeCourt 0
the court
Fax (949)
Email:
833-33 83
209-2530
theresa ( barta-law.com
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BY
\‘ékoewry Caumy
(3/
0,SW, C,“
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Attorney for Plaintiff,
Diana P. Blum, MD.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10 DIANA P. BLUM, M.D., ) Case No. ll5-CV-277582
)
ll )
PLAINTIFF’S OPPOSITION TO
, , )
Plalntlffi ) DEFENDANTS’ JOINT MOTION IN
) LIMINE TO EXCLUDE CERTAIN
vs. ) WITNESSES ON PLAINTIFF’S NOTICE
) TO APPEAR
. . . )
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Defendants. )
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Plaintiff, Diana Blum, M.D., (“Plaintiff”) hereby opposes Defendants’ Motion in Limine to
Exclude Certain Witnesses on Plaintiff‘s Notice to Appear on the grounds that the testimony ofthe
identified witnesses is relevant to the issues to be tried and, further, that each ofthe witnesses was,
in fact, identified in discovery by either the Plaintiffor the Defendants themselves and there is,
therefore, neither surprise nor prejudice in calling them as witnesses at trial.
I
PLAINTIFF‘S OPPOSITION TO DEFENDANTS‘ JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF'S NOTICE TO APPEAR
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
Defendants’ joint Motion in Limine seeks to preclude the testimony of five witnesses
identified on Plaintiff‘s witness list,i.e.,Drs. Michelle Massie, Antoinette Rose, Teresa Tuan, and
Mary Varghese, and Mr. JeffGerard. There are,however, no legitimate bases for excluding any of
these witnesses and compelling reasons why Plaintiffshould be allowed to call them.
II.
THE WITNESSES WERE ALL IDENTIFIED IN DISCOVERY
AND THEIR TESTIMONY IS RELEVANT
IO A. Dr. Rose and Dr. Massie
Defendants’ motion in limine, seeking to preclude the testimony of Dr. Rose, is wholly
[2 unnecessary. Because of Dr. Rose’s medical condition, Plaintiffdoes not intend to call her as a
l3 witness at trial jwliich Plaintiff’s counsel told Defendants’ counsel. (Declaration ofTheresa Baita
Filed inSupport of Plaintiff‘s Oppositions to Defendants’ Joint Motions in Limine (“Barta Decl.”)
ill)
That being said, however, the simple reality is that because Dr. Rose is not available as a
witness — through no fault ofthe Plaintiff— Plaintiff has been forced to obtain the essential
testimony that would have been provided by Dr. Rose from another witness, i.e.,Dr. Massie.
Dr. Rose would have been called to testify in order to authenticate the web logs (“blogs”)
Dr. Rose published as part of Sutter Health’s on—line community. Dr. Massie helped Dr. Rose ‘
prepare, and send out, the blogs that are business records ofthe defendants. And, in fact, Dr.
Massie’s name actually appears in the blogs. (Barta Decl.,1]3, Exhibit A.) Thus, Dr. Massie, in
place of Dr. Rose, can authenticate the blogs at trial.
2
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN WITNESSES 0N PLAINTIFF’S NOTICE TO APPEAR
Thus, because Dr. Rose was unexpectedly unable to testify at trial,itis now necessary to
call Dr. Massie.
Two other points. First, Defendants seem to argue that because Dr. Rose’s deposition was
set, but not taken, that should somehow limit Plaintiff‘s ability to call her (or her surrogate, Dr.
Massie) at trial. There is,ofcourse, no legal authority for any such argument. Indeed, there is no
requirement at all that a witness cannot testify at trial unless previously deposed.
Second, while Plaintiffdid not specifically identify Dr. Massie in her discovery responses,
Defendants have not suffered any undue “surprise” or prejudice since Defendants themselves, in
fact, knew of Dr. Massie’s participation in the relevant circumstances; indeed, the Defendants
themselves identified her as a witness with relevant information in response to Plaintiff ’s own
discovery requests by producing the blogs which identified her.
As the court confirmed in Thoren v. Johnston & Washer (I972) 29 Cal. App. 3d 270, 274
(the principal case relied on by Defendants) limitation ofwitness testimony at trial is proper only
“[w]here the party served with an interrogatory asking the names of witnesses to an occurrence
then known to him deprives his adversary of that information by a willfully false response”
because such a tactic “subjects the adversary to unfair surprise at trial.” That conduct-“deprives
his adversary ofthe opportunity of preparation which could disclose whether the witness will tell
the truth and whether a claim based upon the witness' testimony isa sham, false, or fraudulent.”
(Thoren, at 274.) But Defendants cannot legitimately claim any surprise, or prejudice, given that
they themselves identified Dr. Massie in their own document production. (Barta Dec|., 1|3.) And
since Dr. Massie was timely disclosed in Plaintiff‘s witness list,there cannot rationally be any
basis for any claim of unfair or undue prejudice or surprise.
3
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN \VITNESSES ON PLAINTIFF’S NOTICE TO APPEAR
All this was, in fact, explained to Defendants’ counsel before the motions in limine were
filed. (Barta Decl., 1]3.) And, contrary to Defendants’ assertion in their motion (p. 4: l 8-2l),
Plaintiff‘s counsel did,in fact, identify for Defendants’ counsel the specific documents in which
Dr. Massie’s name appears. (Barta Decl., 113,Exhibit B.) Accordingly, there is no logical or legal
basis for precluding Dr. Massie’s testimony, especially in lightofDr. Rose’s unexpected
unavailability at trial.
B. Similarly Dr. Tuan Was Identified In Defendant’s Own Discovery
Responses As A Potential Witness And Her Testimony Is Relevant
To The Issues In The Case.
10 Dr. Tuan provided services for a basic urgent care visit (a strep culture), which was billed
ll as a high-complexity level emergency medical visit.(Barta Decl. 114.) That evidence supports
12
Plaintiff‘s Business & Professions Code section l7200 (“the UCL”) cause of action, which
contends that Defendants pressure doctors to over-code and over-bill for the purpose of increasing
revenue. That evidence is,therefore, relevant to the issues to be tried. And, as noted in opposition
to Defendants Motion in Limine to Exclude “Me Too” Evidence, because thejury can, and should,
decide thefacls, even as to the UCL claims, and because the UCL and personal claims should be
tried together for purposes ofjudicial, jury, witness and party efficiency (see, e.g., Notrica v.Sin/e
Compensation Ins. Fund(l 999) 70 Cal.App.4th 9| 1),Dr. Tuan’s testimony during the trialis
permissible and essential.
And, similar to Dr, Massie, Dr. Tuan was identified in documents produced during
discovery. First, Plaintiff produced documents identifying Dr. Tuan to Defendants (Barta Decl.
114),and then Defendant PAMF produced discovery specifically about Dr. Tuan’s visit (for which
the coding is at issue),in response to one of Plaintiff‘s discovery requests. (Id) And, again,
4
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR
contrary to Defendants’ motion (p. 4:23-25), Plaintiff‘s counsel identified those specific
documents for Defendants’ counsel. (Barta Decl., 114, Exhibit B.)
Thus, once again, there is no “undue” surprise or prejudice like that in Thoren, and there is
nojustification for exclusion ofthis evidence.
C. Dr. Varghese’s Testimony Is Relevant And, Again, Defendants Themselves
Identified Her As A Relevant Witness.
Dr. Gershfield (Plaintiff‘s supervisor and Head ofthe Neurology Department) was asked in
deposition if he had any complaints or issues with Dr. Blum’s clinical abilities and he responded
with two examples. In one example, he claimed he sent Dr. Blum’s patient to the urgent care and
that the patient was allegedly seen by Dr. Varghese. Thus, Dr. Varghese’s testimony is necessary
to impeach the testimony of Dr. Gershfield if he testifies that he had to send one of Plaintiff‘s
patients to urgent care.
Moreover, Defendants clearly knew of and understood that Dr. Varghese was a material
witness in this case, since they provided a declaration by her in April 2017. (Barta Dec|.115,
Exhibit C.) Thus, once again, there is no legitimate basis for any claim of“surprise” with respect
l6
to Dr. Varghese’s testimony.
l7
And that testimony remains relevant despite Defendants’ incomplete “offer” to stipulate
l8
that, “Dr. Blum’s clinical abilities are not in dispute.” (Barta Decl.,1|6 and Exhibit D [email from
l9
Hieu Williams].) That is because Defendants rejected Plaintiff’s proposed stipulation on that
issue. (Barta Decl., fl6.)
When offered a proposed stipulation, Defendant’s responded that they would stipulate only
if Plaintiffwould agree “not to proffer evidence re: Dr. Blum’s clinical abilities.” (Barta Decl.,
116.)That, however was not a reasonable counteroffer since, as part of Plaintiff‘s case for wrongful
5
PLAINTIFF’S OPPOSITION TO DEFENDANTS' JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN \VITNESSES ON PLAINTIFF’S NOTICE TO APPEAR
termination for violations of Business & Professions Code section 2056, Plaintiff needs to show
that Dr. Blum’s advocacy was reasonable in light ofher experience and training. In other words,
Plaintiff has the burden ofshowing she is a good doctor and that others also think she is a good
doctor. Such evidence is necessary to corroborate that her advocacy was appropriate.
Thus, unless Defendants are prepared to stipulate that Plaintiff‘s advocacy was reasonable
under section 2056, Dr. Varghese’s testimony is material and relevant and there is no basis for its
exclusion.
D. Mr. Gerard’s Testimony Is Directly Relevant To The Joint Venture Claims
And Since Defendants Themselves Identified Him As The Person With Relevant
IO Knowledge There Is No Basis For Shielding Him From Testifying At Trial.
As discussed in Plaintiff‘s Trial Brief, the issue ofjoint venture between Sutter Health,
l2
PAMF, and PAFMG is essential to claims in this case. One ofthe key links in the chain
I3
demonstrating the existence ofthejoint venture is the Professional Services Agreement between
l4
PAMF and PA FMG. That agreement was approved by Sutter Heath’s own Board ofDirectors.
l5
(Barta Decl., 1W.) Most significantly, Defendants themselves identified JeffGerard as the person
I6
who presented and explained the agreement to the Board and identified him in discovery as the
person best suited to discuss it. (Barta Decl., 117and Exhibit F.)
Defendants’ challenge that Mr. Gerard, as a so-called “apex” executive, should not be
subject to a notice to appear at trial has no merit. Indeed, as Defendants themselves concede, a
high-level executive may not be called where that executive has “no unique or relevant knowledge
regarding any of Plaintiff‘s claims.” (Motion, p.3z25-27; see, also, 7zl4-l5.) But as Defendants
themselves confirmed in their discovery response (Barta Decl., Exhibit F), Jeff Gerard —
23
specifically — has relevant knowledge about that agreement.
24
6
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR
Given that Jeff Gerard was the only person specifically identified by Defendants as the person
with relevant knowledge about a key documents underlying the joint venture claims in this case,
his testimony isrelevant and his status as an “executive” does nothing to preclude Plaintiff from
calling him as a witness. (See, e.g..In Re Nat’l W Life Ins. Deferred Annuities Litig, 201 1 WL
1304587, *2 (SD. Cal. Apr. 6, 2011) [denying objections to deposition of Chairman ofthe Board
and CEO, and President and COO, stating, “Chief Executive Officers and other apex-type
executives are certainly not beyond the reach of the litigation process. As an apt illustrative
example, the Northern District of California recently ordered Steve Jobs, the CEO of Apple Inc
and arguably the apex of all apexes, to sit for deposition. 1f Steve Jobs must sit for deposition, n0
CEO is ipso facto immune from deposition in the Court’s mind.”] Chevron Corp. v Donziger,
2013 WL 1896932, *1 (SD. NY. May 7,, 2013) [denying motion to quash subpoenas for
depositions of Chairman and CEO of plaintiff corporation, as well as the Vice President and
13 General Counsel of another company, stating:“>[S]enior executive are not exempt from deposition,
I4 and because principles relating to apex witnesses are in tension with the [broad availability 0
15 discoveryy it is important to excuse a witness from giving testimony only in compelling
16 circumstances.’”’); In re Transpacific Passenger Air Transp. Antitrust Litig, 2014 WL 939287, *5
17 (ND. Cal. Mar. 6, 2014) [denying motion for protective order re deposition of Vice President of
1
Marketing & sales Division].)
Accordingly, Defendants’ effort to shield Mr. Gerard from the litigation process should be
rejected.
7
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR
III.
CONCLUSION
Because the testimony ofthese witnesses is relevant and because they were, in fact,
identified in discovery, Defendants’ motion should be denied.
Dated: January 6, 20| 8
d! 0E
Theresa J. Barla
Attorney for Plaintiff, Dr. Diana Blum
ll
|2
l3
l4
8
PLAINTIFF‘S OPPOSITION TO DEFENDANTS‘ JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF NG g L E
Iam employed In the county of Orange, State of Califomia. Iadhfibqthsfi!
not a party to the within action; my business address is 5l60 CaI Drive 3
go rt Beach,
California 92660. BYSUBGH'oI
canal?! 09‘”?
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On January 8, 2018, lserved the foregoing document(s) describe as 01$;
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n
OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE “L
CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR on allinterested parties in
this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:
Attorneys for Sutter Health and Palo Alto Attorneys for Palo Alto Foundation Medical
Medical Foundation: Group, lnc.:
Lindbergh Porter, Esq. Marcie lson Fitzsimmons, Esq.
Maiko Nakarai-Kanivas, Esq. Gordon Rees LLP
Littler Mendelson, PC. 275 Battery St., #2000
333 Bush Street, 34m Floor San Francisco, CA 94I l I
San Francisco, CA 94|04 Tel: (4|5) 986-5900
10 Tel: (415) 4334940 Fax: (4I5) 986-8054
Fax: (4l5) 399-8490 Email: Mlsom@gordonreescom
ll Email: mnakaraikanivas@litt|er.com
l2 X (BY PERSONAL SERVICE)
X By personally delivering copies to the person served.
l caused to be delivered such envelope by hand to the offices ofthe addressee pursuant _
C.P § IOII.
(BY MAIL) - I deposited such envelope In the mail at Newport Beach, California. The
envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’ 5
practice of collection and processing correspondence for mailing. Under that practice itwould be
deposited with US. Postal Service on that same day with postage thereon full)Iprepaid at Newport
Beach, California in the ordinary course of business. I am aware that on motion of the part)
served, service is presumed invalid ifpostal cancellation date or postage meter date is or than one
l7 (1) day after date of deposit for mailing
l8
_
by
(BY
electronic
ELECTRONIC
mail on to the
in
TRANSMISSION)
affidavit.
party(s)
—
identified
I transmitted
on the
a PDF
attached
version
service
of this
listusing
document
the e-mai
address(es) indicated.
l9
Ideclare under penalty of perjury under the laws of the State ofCalifornia that the above is
true and correct.
\IJ‘ 0
Theresa/J.
E
Barta
9
PLAINTIFF‘S OPPOSITION TO DEFENDANTS‘ JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF‘S NOTICE TO APPEAR
Preview
THERESA J.BARTA (State Bar No. 150995) BARTA LAW 4041 MacArthur Blvd., Suite 280 JAN 1 6 2018 Newport Beach, California 92660 kof Tel. (949) s”M"CIeCourt 0 the court Fax (949) Email: 833-33 83 209-2530 theresa ( barta-law.com ' BY \‘ékoewry Caumy (3/ 0,SW, C,“ - n Attorney for Plaintiff, Diana P. Blum, MD. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 DIANA P. BLUM, M.D., ) Case No. ll5-CV-277582 ) ll ) PLAINTIFF’S OPPOSITION TO , , ) Plalntlffi ) DEFENDANTS’ JOINT MOTION IN ) LIMINE TO EXCLUDE CERTAIN vs. ) WITNESSES ON PLAINTIFF’S NOTICE ) TO APPEAR . . . ) SUTTER HEALTH ’ a California corporation'’ . T Fla ID a t eI anuary 8, 20| 8 PALO ALTO FOUNDATION MEDICAL TM" . 3 45 a m GROUP C If mo n2£€f€é$§l§$°f¥i3a ‘ ‘ ~PALO ’a ) ) Dept-r J u d ge : 86' H6 on .DrewC .T BY WAX a k aic h l California corporation; and DOES I through 3 20, ) Defendants. ) ) ) Plaintiff, Diana Blum, M.D., (“Plaintiff”) hereby opposes Defendants’ Motion in Limine to Exclude Certain Witnesses on Plaintiff‘s Notice to Appear on the grounds that the testimony ofthe identified witnesses is relevant to the issues to be tried and, further, that each ofthe witnesses was, in fact, identified in discovery by either the Plaintiffor the Defendants themselves and there is, therefore, neither surprise nor prejudice in calling them as witnesses at trial. I PLAINTIFF‘S OPPOSITION TO DEFENDANTS‘ JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF'S NOTICE TO APPEAR MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants’ joint Motion in Limine seeks to preclude the testimony of five witnesses identified on Plaintiff‘s witness list,i.e.,Drs. Michelle Massie, Antoinette Rose, Teresa Tuan, and Mary Varghese, and Mr. JeffGerard. There are,however, no legitimate bases for excluding any of these witnesses and compelling reasons why Plaintiffshould be allowed to call them. II. THE WITNESSES WERE ALL IDENTIFIED IN DISCOVERY AND THEIR TESTIMONY IS RELEVANT IO A. Dr. Rose and Dr. Massie Defendants’ motion in limine, seeking to preclude the testimony of Dr. Rose, is wholly [2 unnecessary. Because of Dr. Rose’s medical condition, Plaintiffdoes not intend to call her as a l3 witness at trial jwliich Plaintiff’s counsel told Defendants’ counsel. (Declaration ofTheresa Baita Filed inSupport of Plaintiff‘s Oppositions to Defendants’ Joint Motions in Limine (“Barta Decl.”) ill) That being said, however, the simple reality is that because Dr. Rose is not available as a witness — through no fault ofthe Plaintiff— Plaintiff has been forced to obtain the essential testimony that would have been provided by Dr. Rose from another witness, i.e.,Dr. Massie. Dr. Rose would have been called to testify in order to authenticate the web logs (“blogs”) Dr. Rose published as part of Sutter Health’s on—line community. Dr. Massie helped Dr. Rose ‘ prepare, and send out, the blogs that are business records ofthe defendants. And, in fact, Dr. Massie’s name actually appears in the blogs. (Barta Decl.,1]3, Exhibit A.) Thus, Dr. Massie, in place of Dr. Rose, can authenticate the blogs at trial. 2 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES 0N PLAINTIFF’S NOTICE TO APPEAR Thus, because Dr. Rose was unexpectedly unable to testify at trial,itis now necessary to call Dr. Massie. Two other points. First, Defendants seem to argue that because Dr. Rose’s deposition was set, but not taken, that should somehow limit Plaintiff‘s ability to call her (or her surrogate, Dr. Massie) at trial. There is,ofcourse, no legal authority for any such argument. Indeed, there is no requirement at all that a witness cannot testify at trial unless previously deposed. Second, while Plaintiffdid not specifically identify Dr. Massie in her discovery responses, Defendants have not suffered any undue “surprise” or prejudice since Defendants themselves, in fact, knew of Dr. Massie’s participation in the relevant circumstances; indeed, the Defendants themselves identified her as a witness with relevant information in response to Plaintiff ’s own discovery requests by producing the blogs which identified her. As the court confirmed in Thoren v. Johnston & Washer (I972) 29 Cal. App. 3d 270, 274 (the principal case relied on by Defendants) limitation ofwitness testimony at trial is proper only “[w]here the party served with an interrogatory asking the names of witnesses to an occurrence then known to him deprives his adversary of that information by a willfully false response” because such a tactic “subjects the adversary to unfair surprise at trial.” That conduct-“deprives his adversary ofthe opportunity of preparation which could disclose whether the witness will tell the truth and whether a claim based upon the witness' testimony isa sham, false, or fraudulent.” (Thoren, at 274.) But Defendants cannot legitimately claim any surprise, or prejudice, given that they themselves identified Dr. Massie in their own document production. (Barta Dec|., 1|3.) And since Dr. Massie was timely disclosed in Plaintiff‘s witness list,there cannot rationally be any basis for any claim of unfair or undue prejudice or surprise. 3 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN \VITNESSES ON PLAINTIFF’S NOTICE TO APPEAR All this was, in fact, explained to Defendants’ counsel before the motions in limine were filed. (Barta Decl., 1]3.) And, contrary to Defendants’ assertion in their motion (p. 4: l 8-2l), Plaintiff‘s counsel did,in fact, identify for Defendants’ counsel the specific documents in which Dr. Massie’s name appears. (Barta Decl., 113,Exhibit B.) Accordingly, there is no logical or legal basis for precluding Dr. Massie’s testimony, especially in lightofDr. Rose’s unexpected unavailability at trial. B. Similarly Dr. Tuan Was Identified In Defendant’s Own Discovery Responses As A Potential Witness And Her Testimony Is Relevant To The Issues In The Case. 10 Dr. Tuan provided services for a basic urgent care visit (a strep culture), which was billed ll as a high-complexity level emergency medical visit.(Barta Decl. 114.) That evidence supports 12 Plaintiff‘s Business & Professions Code section l7200 (“the UCL”) cause of action, which contends that Defendants pressure doctors to over-code and over-bill for the purpose of increasing revenue. That evidence is,therefore, relevant to the issues to be tried. And, as noted in opposition to Defendants Motion in Limine to Exclude “Me Too” Evidence, because thejury can, and should, decide thefacls, even as to the UCL claims, and because the UCL and personal claims should be tried together for purposes ofjudicial, jury, witness and party efficiency (see, e.g., Notrica v.Sin/e Compensation Ins. Fund(l 999) 70 Cal.App.4th 9| 1),Dr. Tuan’s testimony during the trialis permissible and essential. And, similar to Dr, Massie, Dr. Tuan was identified in documents produced during discovery. First, Plaintiff produced documents identifying Dr. Tuan to Defendants (Barta Decl. 114),and then Defendant PAMF produced discovery specifically about Dr. Tuan’s visit (for which the coding is at issue),in response to one of Plaintiff‘s discovery requests. (Id) And, again, 4 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR contrary to Defendants’ motion (p. 4:23-25), Plaintiff‘s counsel identified those specific documents for Defendants’ counsel. (Barta Decl., 114, Exhibit B.) Thus, once again, there is no “undue” surprise or prejudice like that in Thoren, and there is nojustification for exclusion ofthis evidence. C. Dr. Varghese’s Testimony Is Relevant And, Again, Defendants Themselves Identified Her As A Relevant Witness. Dr. Gershfield (Plaintiff‘s supervisor and Head ofthe Neurology Department) was asked in deposition if he had any complaints or issues with Dr. Blum’s clinical abilities and he responded with two examples. In one example, he claimed he sent Dr. Blum’s patient to the urgent care and that the patient was allegedly seen by Dr. Varghese. Thus, Dr. Varghese’s testimony is necessary to impeach the testimony of Dr. Gershfield if he testifies that he had to send one of Plaintiff‘s patients to urgent care. Moreover, Defendants clearly knew of and understood that Dr. Varghese was a material witness in this case, since they provided a declaration by her in April 2017. (Barta Dec|.115, Exhibit C.) Thus, once again, there is no legitimate basis for any claim of“surprise” with respect l6 to Dr. Varghese’s testimony. l7 And that testimony remains relevant despite Defendants’ incomplete “offer” to stipulate l8 that, “Dr. Blum’s clinical abilities are not in dispute.” (Barta Decl.,1|6 and Exhibit D [email from l9 Hieu Williams].) That is because Defendants rejected Plaintiff’s proposed stipulation on that issue. (Barta Decl., fl6.) When offered a proposed stipulation, Defendant’s responded that they would stipulate only if Plaintiffwould agree “not to proffer evidence re: Dr. Blum’s clinical abilities.” (Barta Decl., 116.)That, however was not a reasonable counteroffer since, as part of Plaintiff‘s case for wrongful 5 PLAINTIFF’S OPPOSITION TO DEFENDANTS' JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN \VITNESSES ON PLAINTIFF’S NOTICE TO APPEAR termination for violations of Business & Professions Code section 2056, Plaintiff needs to show that Dr. Blum’s advocacy was reasonable in light ofher experience and training. In other words, Plaintiff has the burden ofshowing she is a good doctor and that others also think she is a good doctor. Such evidence is necessary to corroborate that her advocacy was appropriate. Thus, unless Defendants are prepared to stipulate that Plaintiff‘s advocacy was reasonable under section 2056, Dr. Varghese’s testimony is material and relevant and there is no basis for its exclusion. D. Mr. Gerard’s Testimony Is Directly Relevant To The Joint Venture Claims And Since Defendants Themselves Identified Him As The Person With Relevant IO Knowledge There Is No Basis For Shielding Him From Testifying At Trial. As discussed in Plaintiff‘s Trial Brief, the issue ofjoint venture between Sutter Health, l2 PAMF, and PAFMG is essential to claims in this case. One ofthe key links in the chain I3 demonstrating the existence ofthejoint venture is the Professional Services Agreement between l4 PAMF and PA FMG. That agreement was approved by Sutter Heath’s own Board ofDirectors. l5 (Barta Decl., 1W.) Most significantly, Defendants themselves identified JeffGerard as the person I6 who presented and explained the agreement to the Board and identified him in discovery as the person best suited to discuss it. (Barta Decl., 117and Exhibit F.) Defendants’ challenge that Mr. Gerard, as a so-called “apex” executive, should not be subject to a notice to appear at trial has no merit. Indeed, as Defendants themselves concede, a high-level executive may not be called where that executive has “no unique or relevant knowledge regarding any of Plaintiff‘s claims.” (Motion, p.3z25-27; see, also, 7zl4-l5.) But as Defendants themselves confirmed in their discovery response (Barta Decl., Exhibit F), Jeff Gerard — 23 specifically — has relevant knowledge about that agreement. 24 6 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR Given that Jeff Gerard was the only person specifically identified by Defendants as the person with relevant knowledge about a key documents underlying the joint venture claims in this case, his testimony isrelevant and his status as an “executive” does nothing to preclude Plaintiff from calling him as a witness. (See, e.g..In Re Nat’l W Life Ins. Deferred Annuities Litig, 201 1 WL 1304587, *2 (SD. Cal. Apr. 6, 2011) [denying objections to deposition of Chairman ofthe Board and CEO, and President and COO, stating, “Chief Executive Officers and other apex-type executives are certainly not beyond the reach of the litigation process. As an apt illustrative example, the Northern District of California recently ordered Steve Jobs, the CEO of Apple Inc and arguably the apex of all apexes, to sit for deposition. 1f Steve Jobs must sit for deposition, n0 CEO is ipso facto immune from deposition in the Court’s mind.”] Chevron Corp. v Donziger, 2013 WL 1896932, *1 (SD. NY. May 7,, 2013) [denying motion to quash subpoenas for depositions of Chairman and CEO of plaintiff corporation, as well as the Vice President and 13 General Counsel of another company, stating:“>[S]enior executive are not exempt from deposition, I4 and because principles relating to apex witnesses are in tension with the [broad availability 0 15 discoveryy it is important to excuse a witness from giving testimony only in compelling 16 circumstances.’”’); In re Transpacific Passenger Air Transp. Antitrust Litig, 2014 WL 939287, *5 17 (ND. Cal. Mar. 6, 2014) [denying motion for protective order re deposition of Vice President of 1 Marketing & sales Division].) Accordingly, Defendants’ effort to shield Mr. Gerard from the litigation process should be rejected. 7 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR III. CONCLUSION Because the testimony ofthese witnesses is relevant and because they were, in fact, identified in discovery, Defendants’ motion should be denied. Dated: January 6, 20| 8 d! 0E Theresa J. Barla Attorney for Plaintiff, Dr. Diana Blum ll |2 l3 l4 8 PLAINTIFF‘S OPPOSITION TO DEFENDANTS‘ JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF NG g L E Iam employed In the county of Orange, State of Califomia. Iadhfibqthsfi! not a party to the within action; my business address is 5l60 CaI Drive 3 go rt Beach, California 92660. BYSUBGH'oI canal?! 09‘”? 'filéi On January 8, 2018, lserved the foregoing document(s) describe as 01$; I n OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE “L CERTAIN WITNESSES ON PLAINTIFF’S NOTICE TO APPEAR on allinterested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Attorneys for Sutter Health and Palo Alto Attorneys for Palo Alto Foundation Medical Medical Foundation: Group, lnc.: Lindbergh Porter, Esq. Marcie lson Fitzsimmons, Esq. Maiko Nakarai-Kanivas, Esq. Gordon Rees LLP Littler Mendelson, PC. 275 Battery St., #2000 333 Bush Street, 34m Floor San Francisco, CA 94I l I San Francisco, CA 94|04 Tel: (4|5) 986-5900 10 Tel: (415) 4334940 Fax: (4I5) 986-8054 Fax: (4l5) 399-8490 Email: Mlsom@gordonreescom ll Email: mnakaraikanivas@litt|er.com l2 X (BY PERSONAL SERVICE) X By personally delivering copies to the person served. l caused to be delivered such envelope by hand to the offices ofthe addressee pursuant _ C.P § IOII. (BY MAIL) - I deposited such envelope In the mail at Newport Beach, California. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’ 5 practice of collection and processing correspondence for mailing. Under that practice itwould be deposited with US. Postal Service on that same day with postage thereon full)Iprepaid at Newport Beach, California in the ordinary course of business. I am aware that on motion of the part) served, service is presumed invalid ifpostal cancellation date or postage meter date is or than one l7 (1) day after date of deposit for mailing l8 _ by (BY electronic ELECTRONIC mail on to the in TRANSMISSION) affidavit. party(s) — identified I transmitted on the a PDF attached version service of this listusing document the e-mai address(es) indicated. l9 Ideclare under penalty of perjury under the laws of the State ofCalifornia that the above is true and correct. \IJ‘ 0 Theresa/J. E Barta 9 PLAINTIFF‘S OPPOSITION TO DEFENDANTS‘ JOINT MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES ON PLAINTIFF‘S NOTICE TO APPEAR