Preview
DOCUMENT: Ex Parte: Application[ 404110)
CASE: S-CV-0034326
DATE: 02/07/2018
ERIC J. RATINOFF, SBN 166204
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NO
MARLA C. STRAIN, SBN 132142
ERIC RATINOF® LAW CORP.
FILED
AT OF CALIFORNIA
401 Watt Avenue SUPERIOR OF PLAGER
Sacramento, California 95864
FES07 2018
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Telephone: (916) 970-9100
BP
Facsimile: (916) 246-1696
FR
Attorneys for Plaintiffs
KIMBERLY HOLE and LARRY HOLE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
KIMBERLY HOLE and LARRY HOLE, CASE NO. SCV0034326
Plaintiffs,
PLAINTIFFS’ EX PARTE APPLICATION
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TO FOR AN ORDER ALLOWING
VS. PLAINTIFFS TO AUGMENT THEIR
EXPERT WITNESS LIST AND
SUTTER ROSEVILLE MEDICAL DECLARATION OR, ALTERNATIVELY,
CENTER; SUTTER ROSEVILLE FOR AN ORDER SHORTENING TIME TO
URGENT CARE; SUTTER HEALTH HEAR MOTION TO AUGMENT EXPERT
SACRAMENTO SIERRA REGION; WITNESS LIST; MEMORANDUM OF
CALIFORNIA EMERGENCY POINTS AND AUTHORITIES AND
PHYSICIANS; TERRY ARIKAWA D.O.; DECLARATION OF MARLA C. STRAIN
NAIL SOLUTIONS; KAPARA HAM and IN SUPPORT THEREOF
DOES 1 through 50, inclusive,
Date: February 7, 2018
Defendants.
Time: 8:00 a.m.
Dept.: 42
DD
Complaint Filed: February 28, 2014
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Trial Date: April 2, 2018
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TO DEFENDANTS, TERRY ARIKAWA D.O. AND SUTTER MEDICAL GROUP AND
BP
TO THEIR ATTORNEYS OF RECORD:
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Plaintiffs KIM HOLE and LARRY HOLE hereby apply ex parte for an Order allowing
Plaintiffs to augment their expert witness list and expert declaration to include Dr. Mark Sockell,
who was first contacted by Plaintiffs subsequent to expert witness disclosure in this case when
Plaintiffs’ disclosed expert, Dr. Zachary Lutsky, notified Plaintiffs he was unavailable to testify
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
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due to a personal crisis. Good cause exists for this ex parte application because trial is set for April
2, 2018 and expert depositions are scheduled to begin later this month. Alternatively, Plaintiffs
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apply ex parte for an Order shortening time to hear the attached Application as a motion to augment
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Plaintiffs’ expert disclosure and declaration pursuant to Code of Civil Procedure § 1005 and
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California Rule of Court 3.1300(b).
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This Application is brought pursuant to California Code of Civil Procedure §§ 2034.610
and 2034.620 on the grounds that (a) Plaintiffs engaged in a timely exchange of expert witness
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information, which included the designation of Dr. Zachary Lutsky as a standard of care expert; (b)
On January 24, 2018, Dr. Lutsky surprised Plaintiffs by advising that due to an unforeseen crisis in
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his personal life he would be unavailable to testify at deposition or at the April 2, 2018 trial; (c) On
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January 25, 2018, Plaintiffs informed Defendants of Dr. Lutsky’s unavailability and their intent to
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retain another expert to testify in Dr. Lutsky’s place. Plaintiffs asked Defendants to stipulate to
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allow Plaintiffs to augment their expert list and disclosure upon retention of a new (replacement)
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expert. Defendants declined to do so; (d) Upon retention of a new (replacement) expert, Plaintiffs
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promptly brought this matter before the Court and disclosed the expert’s information to Defendants;
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and (e) Plaintiffs designation of a new standard of care expert to replace their now unavailable,
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previously designated expert does not prejudice Defendants. This Application is based upon this
Ex Parte Application, the attached Memorandum of Points and Authorities and Declaration of
Marla C. Strain filed and served concurrently herewith, upon all papers, pleadings, records on file
herein, and upon such further oral and documentary evidence as may be presented at the hearing
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on this Application.
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Dated: February Ab, 2018 ERIC RATINOFF LAW CORP.
BRO
ERIC J. RATINOFF
MARLA C. STRAIN
Attorney for Plaintiffs
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This lawsuit involves a complex professional medical negligence matter involving a rare
infectious disease - necrotizing fasciitis — and extreme injuries. By this application, Plaintiffs seek
an order allowing them to augment their expert witness list and expert disclosure to include Dr.
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Mark Sockell, as an expert on the standard of care. This is necessary because on January 24, 2018
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Plaintiffs’ previously disclosed standard of care expert, Dr. Zachary Lutsky, informed Plaintiffs
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that he was unavailable to testify due to “an unforeseen crisis in his personal life.” (Ex. D to
Declaration of Marla C. Strain (“Strain Decl.”).) Dr. Lutsky’s unavailability was a complete
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10 surprise to Plaintiffs. Plaintiffs promptly advised Defendants of Dr. Lutsky’s unavailability, and of
ll their intent to retain a standard of care expert to testify in lieu of Dr. Lutsky. (Ex. E to Strain Decl.)
12 Plaintiffs requested Defendants stipulate to allow Plaintiffs to augment their expert witness list and
13 disclosure. (Id.) Defendants declined to do so. Upon retaining a replacement expert, Plaintiffs
14 promptly brought their Application before this Court. Good cause exists for this ex parte application
15 because trial is set for April 2, 2018 and expert depositions are scheduled to begin later this month.
16 Allowing Plaintiffs to augment their expert witness list and disclosure — so as to put them
17 back in the same position they were in before Dr. Lutsky’s surprise announcement of unavailability
18 - does not prejudice Defendants. None of the parties’ expert witnesses have yet been deposed. These
19 depositions are currently being coordinated by the parties for late February and March, and Dr.
20 Sockell is available to testify during this time period. Dr. Sockell’s CV and fee schedule were
21 provided to Defendants on February 5, 2018. (Strain Decl., attached hereto, par. 11.)
22 I. TIMELY NOTICE WAS GIVEN OF THIS EX PARTE APPLICATION, AND
23 COUNSEL MET AND CONFERRED PRIOR TO FILING SAME.
24 On January 29, 2018, counsel for both parties meet and conferred by telephone with respect
25 Plaintiffs request that Defendants stipulate to allow Plaintiffs to augment their expert witness list
26 and disclosure. (Strain Decl., attached hereto, par.10.) Defendants’ counsel, Ms. Todd, advised she
a7 would not stipulate to the augmentation. (Id.) Plaintiffs’ counsel, Ms. Strain, then advised Ms. Todd
28 that she would prepare an ex parte application and schedule the ex parte hearing for a date
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
convenient to Ms. Todd’s schedule. (Id.)
The decision to retain Dr. Sockell was made over the February 3" weekend. (Strain Decl.,
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attached hereto, par. 11.) On February 5, 2018, Ms. Strain wrote Ms. Todd a letter advising Ms.
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Todd of Dr. Sockell’s name, and included his CV and fee rate schedule. (Id.) Said correspondence
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further meet and conferred regarding the requested stipulation. (Id.) That same day, Plaintiffs’
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counsel gave notice that this ex parte Application would be made on February 7, 2018 at 8:00 a.m.
in Department 42 of the Placer County Superior Court. (Ex. F to Strain Decl.) Also on February 5,
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2018, Plaintiffs served Defendants’ counsel with its (Proposed) Augmented Expert Designation
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and Declaration adding Dr. Sockell in lieu of Dr. Lutsky. (Strain Decl., attached hereto, par. 13.)
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Til. LEGAL ANALYSIS
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A. Good Cause Exists for this Ex Parte Request and Order
Placer County Local Rule 10.8 provides this court may issue an order pursuant to an ex
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parte request when necessary to prevent injustice or irreparable harm and due to time constraints,
a noticed motion cannot be made. As discussed below, Plaintiffs satisfy all of the statutory pre-
requisites for this Court to grant a Motion to Augment. Here, good cause exists for this ex parte
Application because time constraints preclude the effective use of a notice motion. The trial date is
two months away and expert depositions are being scheduled for the late February and March. The
testimony of an expert witness is required in every professional negligence case to establish the
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applicable standard of care. CACI 501. Plaintiffs will suffer irreparable harm if the Court does not
grant this Application.
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B. Legal Authority
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Section 2034.610(a) of the California Code of Civil Procedure provides that, on motion of
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any party who has engaged in a timely exchange of expert witness information, the Court may grant
leave to augment that party’s expert witness list and declaration by adding the name and address of
any expert witness whom that party has subsequently retained. Plaintiffs timely exchanged expert
witness information on August 28, 2017.!
' This case was previously set for trial to begin on October 16, 2017. Expert witness disclosure was scheduled for
August 28, 2017. On July 13, 2017, this Court granted Plaintiffs’ Stipulated Ex Parte Application and continued the
trial date to April 2, 2018. Pursuant to the parties’ agreement, expert disclosure and discovery cut-off remained
governed by the October 16, 2017 trial date. (Strain Decl., attached hereto, par. 5.)
4.
EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
In determining whether to grant the motion, Section 2034.620 provides that the Court
“shall” grant leave to augment or amend an expert witness list or declaration if the following
conditions are satisfied:
(a) The Court has taken into account the extent to which the opposing party has relied on
the list of expert witnesses;
Here, depositions have not been taken of any disclosed experts. There has been
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no reliance by Defendants.
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(b) The Court has determined that any party opposing the motion will not be prejudiced in
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maintaining that party’s action or defense on the merits;
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10 This is not a situation where Defendants, due to reliance on the previous list of
11 experts, now are not prepared and cannot be prepared in time for trial. To the contrary,
12 no expert depositions have been taken and Dr. Sockell was disclosed to Defendants
13 more than 50 days, the standard time for disclosure of experts, before trial. There is no
14 prejudice.
15 Furthermore, Plaintiffs are not seeking to disclose an extra/additional expert to
16 testify as to a new matter. Rather, Plaintiffs are merely seeking to replace Dr. Zachary
17 Lutsky, who through no fault of Plaintiffs is unavailable due to an unforeseen personal
18 crisis, with a replacement standard of care expert. In their initial expert disclosures,
19 Plaintiffs and Defendants each designated two expert witnesses to testify regarding
20 standard of care.’ Allowing Plaintiffs to augment as requested, merely restores the
21 parties to the status quo which existed prior to Dr. Lutsky’s surprise notice of his
22 unavailability. Plaintiffs requested augmentation is not cumulative and does not place
23 Defendants in a different position than before. Both parties would still have two
24 designated standard of care experts.
23 (c) The Court has determined the moving party failed to determine to call that expert
26 witness, or to offer the different or additional testimony of that expert witness as a result
27 of mistake, inadvertence, surprise, or excusable neglect; and the moving party has (1)
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* Defendants disclosed Dr. David Talan and Dr. Robert Norman to testify regarding standard of care. Any suggestion
that “cumulative” experts would prejudice Defendants should be assessed within this reality.
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
sought leave to augment or amend promptly after deciding to call the expert witness or
to offer the different or additional testimony; (2) promptly thereafter the moving party
served a copy of the proposed expert witness information concerning the expert or the
testimony described in section 2034.260 on all other parties.
Prior to the Court’s continuance of the October 16, 2017 trial date to April 2,
2018, Plaintiffs cleared the then proposed April 2, 2018 trial date with all of their
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experts. Dr. Lutsky had represented that he was prepared and available to testify at
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deposition and trial. Dr. Lutsky’s January 24, 2018 email was the first notice of Dr.
Lutsky’s unavailability. It came as a complete surprise. (Strain Decl. attached hereto,
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10 par. &.)
1] The present application is timely and the relief was promptly sought. Plaintiffs
12 immediately undertook to retain a standard of care expert to replace Dr. Lutsky, and
13 upon retaining Dr. Sockell over the February 3" weekend, promptly sought leave to
14 augment. Dr. Sockell’s identity, CV and fee schedule was provided to defense counsel
15 on February 5, 2018. Plaintiffs’ proposed Augmented Designation and Expert Witness
16 Declaration were provided to defense counsel February 5, 2018 and are attached to the
17 Strain Decl. as Exhibit A.
18 IV. ALTERNATIVELY, THE COURT HAS THE AUTHORITY TO HEAR A
19 MOTION REGARDING THIS SAME MATTER ON SHORTED TIME.
20 California law provides that “[t]he court, on its own motion or on application for an order
21 shortening time supported by a declaration showing good cause, may prescribe shorter times for
22 the filing and service of papers than the times specified in Code of Civil Procedure § 1005.”
23 (California Rules of Court Rule 3.1300(b); see also Code of Civil Procedure Section § 1005 (b)
24 (allowing the court to prescribe a shorter time for the noticing of motions).)
25 Here, if the Court is not willing to grant the relief sought on an ex parte basis, good cause
26 exists to alternatively grant an order shortening time to hear a motion on these same issues. The
27 Application could be deemed a notice of motion and motion if the Court were not included to grant
28 this Application on an ex parte basis. Good cause exists to shorten time due to the upcoming April
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
2, 2018 trial date and the fact that the parties are currently coordinating the scheduling of expert
depositions for February and March 2018.
V. CONCLUSION
It is axiomatic that in this medical negligence case, expert testimony with respect to the
applicable standard of care is fundamental and crucial. For all of the reasons set forth above,
Plaintiffs respectfully request this Court allow Plaintiffs to augment their expert designation so as
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to allow the substitution of Dr. Mark Sockell as an expert in place of Dr. Zachary Lutsky, who is
now unavailable due to an unforeseen personal crisis.
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Dated: February b. 2018 Respectfully submitted,
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{2 ERIC RATINOFF LAW CORP.
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14 By: AG 2. CS —
15
ERIC J. RATINOFF
MARLA CLSTRAIN
16 Attorneys for Plaintiff
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
DECLARATION OF MARLA C, STRAIN
I, MARLA C. STRAIN, declare:
1. I am an attorney at law licensed to practice before all of the courts of the State of
California. I am a senior associate attorney at Eric Ratinoff Law Corp., attorneys of record for
plaintiffs in this case.
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Ds I am familiar with the pleadings and discovery to date in this action. I have personal
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knowledge of the facts stated in this declaration. If called upon to testify to the matters stated here,
I could and would do so competently.
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3. Attached as Exhibit A is a true and correct copy of Plaintiffs’ (Proposed) Augmented
10 Designation and Expert Witness Declaration. Attached as Exhibit B is a true and correct copy of
\1 Dr. Sockell’s CV and rate schedule. This information was provided to defense counsel on February
12 5, 2018.
13 4, Trial in this medical negligence case was previously set to begin on October 16,
14 2017. On July 13, 2017, this Court granted Plaintiffs’ Stipulated Ex Parte Application and
15 continued the trial date to April 2, 2018. A true and correct copy of the Court’s Order is attached
16 hereto as Exhibit C. Plaintiffs had confirmed all of their experts’ availability to testify prior to the
17 Court’s order continuing trial to April 2, 2018.
18 as Pursuant to the parties’ agreement, expert disclosure and discovery cut-off remained
19 governed the October 16, 2017 trial date. On August 28, 2017, the parties timely exchanged expert
20 witness disclosures. Plaintiffs disclosed Dr. Zachary Lutsky and Dr. Mark Synder to testify
21 regarding standard of care. Defendants disclosed Dr. David Talan and Dr. Robert Norman to testify
22 regarding standard of care. Defendants also disclosed Dr. Talan as an infectious disease expert who
23 would testify as to causation and damages, and disclosed a second infectious disease expert, Dr.
24 James Leggett, to testify as to causation and damages. Plaintiffs disclosed one infectious disease
25 expert, Dr. Patrick Joseph.
26 6. The parties are currently coordinating the depositions of all expert witnesses for
27 February and March. No expert depositions have yet been taken.
28 //]
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
7. On January 24, 2018, Plaintiffs received an email from Dr. Lutsky stating that “due
to a recent unforeseen crisis in my personal life I am going to no longer be available to provide
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testimony on this matter. I am very sorry for any inconvenience this may cause.” Dr. Lutsky’s
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Declaration, received February 5, 2018, is attached hereto as Exhibit D. His email is Exhibit A
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thereto.
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8. Dr. Lutsky’s unavailability was a complete surprise to Plaintiffs.
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9. On January 25, 2018, I wrote to defense counsel, Ms. Kat Todd, and advised her of
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Dr. Lutsky’s unavailability. A true and correct copy of my January 25, 2018 letter to Ms. Todd is
attached hereto as Exhibit E.
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10 10. On January 29, 2018 Ms. Todd and I spoke on the telephone regarding this matter. Ms.
11 Todd advised that she would not stipulate to Plaintiffs augmentation of their expert disclosure,
12 stating the augmentation would be cumulative and prejudicial to Defendants. I reminded Ms. Todd
13 that both Plaintiffs and Defendants had disclosed two experts to testify as to standard of care and
14 augmentation would only restore the parties to the status quo. I reiterated that Plaintiffs’ would
15 disclose the expert’s identity and provide the CV and fee schedule immediately, once he or she was
16 retained. I then advised that I would prepare an ex parte application and schedule the hearing for a
17 date convenient to Ms. Todd’s schedule.
18 11. Plaintiffs made the decision to retain Dr. Sockell over the weekend of February 3, 2018.
19 On Monday, February 5, 2018, I wrote a letter advising Ms. Todd of Dr. Mark Sockell’s name, and
20 included his CV and fee schedule. In said letter, I attempted to further meet and confer regarding
21 the requested stipulation. A true and correct copy of the letter is attached as Exhibit F.
22 12. On February 5, 2018, at approximately 10:30 a.m., my office confirmed Ms. Todd was
23 available to appear and gave notice Plaintiffs’ ex parte Application would be made on February 7,
24 2018 at 8:00 a.m. in Department 42 of the Placer County Superior Court. (See Exhibit F attached
25 hereto.)
26 ‘Tf
27 //]
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
13. On February 5, 2018, Plaintiffs served Defendants with its [Proposed] Augmented
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Expert Designation and Declaration (attached as Exhibit A to the Strain Decl.) adding Dr. Mark
Sockell in lieu of Dr. Lutsky.
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I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
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Executed on this day 6" of February, 2018 in Sacramento, California.
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EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST
EXHIBIT A
ERIC J. RATINOFF, SBN 166204
MARLA C. STRAIN, SBN 132142
LP
ERIC RATINOFF LAW CORP.
401 Watt Avenue
Sacramento, California 95864
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Telephone: (916) 970-9100
Facsimile: (916) 246-1696
A &
Attorneys for Plaintiffs
KIMBERLY HOLE and LARRY HOLE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
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KIMBERLY HOLE and LARRY HOLE, CASE NO. SCV0034326
11
12 Plaintiffs,
13 VS. [PROPOSED]
14 SUTTER ROSEVILLE MEDICAL PLAINTIFFS’ AUGMENTED
15 CENTER; SUTTER ROSEVILLE DISCLOSURE OF EXPERT WITNESS
URGENT CARE; SUTTER HEALTH INFORMATION AND DECLARATION OF
16 SACRAMENTO SIERRA REGION; MARLA C. STRAIN
CALIFORNIA EMERGENCY
17 PHYSICIANS; TERRY ARIKAWA D.O.;
NAIL SOLUTIONS; KAPARA HAM and
18 DOES 1 through 50, inclusive,
19 Defendants. Complaint Filed: February 28, 2014
Trial Date: April 2, 2018
20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
21 Pursuant to Code of Civil Procedure section 2034.260, Plaintiff, KIMBERLY HOLE
22 and LARRY HOLE, hereby set forth their list of expert witnesses, and other non-retained expert
23 Witnesses who may be called to testify at the time of Arbitration of this matter.
24 RETAINED EXPERTS
1. Pat Joseph, M.D.
25 5601 Norris Canyon Road, Suite #220
San Ramon, California 94583
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2. Mark Sockell, M.D.
27 41 Olympia Way
Novato, CA 94945
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[PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION
Marc Snyder, M.D.
3942 22" Street
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Charles Lee, M.D.
2250 Hayes Street, Suite #508
San Francisco, CA 94117
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Alex Barchuk, M.D., C.L.C.P.
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1125 Sir Francis Drake Boulevard
Kentfield, CA 94904
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Drew Hittenberger, C.P., BOCO
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181 Lynch Creek Way, Suite 101
Petaluma, CA 94954
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Carol Hyland, M.A., M.S., C.L.C.P., C.D.M.S.
4120 Canyon Road
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Lafayette, CA 94549
Robert W. Johnson
Robert W. Johnson & Associates
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4984 El Camino Real, Suite 210
Los Altos, CA 94022
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NON-RETAINED EXPERTS
Dr. Shawn Aghili
Sutter Roseville Medical Center
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One Medical Plaza Drive
Roseville, CA 95661
Dr. Ranjani Kalyan
Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
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Roseville, CA 95661
Dr. Kamren Ahmen
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Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
Roseville, CA 95661
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Dr William Webster
Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
Roseville, CA 95661
Dr. Phillip Bosco
Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
Roseville, CA 95661
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[PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION
Dr Andrew DeMar
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Sutter Roseville Medical Center
YW 5 Medical Plaza Drive, Suite 190
Roseville, CA 95661
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Dr. Christopher Finkemeier
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Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
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Roseville, CA 95661
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Dr. Rafael Neiman
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Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
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Roseville, CA 95661
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Dr. Lauren Lee
Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
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Roseville, CA 95661
10. Dr. Paul Gregory
Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
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Roseville, CA 95661
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11. Dr. James Maher
Sutter Roseville Medical Center
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5 Medical Plaza Drive, Suite 190
Roseville, CA 95661
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12. Dr. Ellen Sung
Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
Roseville, CA 95661
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13. Dr. Adarsh Bhat
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Sutter Roseville Medical Center
SRR
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5 Medical Plaza Drive, Suite 190
Roseville, CA 95661
14. Dr. Granger Wong
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Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
Roseville, CA 95661
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15. Dr. Michael Ridgeway
Sutter Roseville Medical Center
5 Medical Plaza Drive, Suite 190
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Roseville, CA 95661
4.
[PROPOSED] PLAINTIFFS” AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION
16. Dr. Sharon Katuin
PN
Sutter Roseville Medical Center
Medical Plaza Drive, Suite 190
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Roseville, CA 95661
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17. Dr. Karanjit Basrai
Sutter Roseville Medical Center
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1121 Maidu Drive
Auburn, CA 95603
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18. Dr. Crystal Carter
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Sutter Roseville Medical Center
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One Medical Plaza Drive
Roseville, CA 95661
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19. Dr. Dung Lee
fem
Sutter Roseville Medical Center
Medical Plaza Drive, Suite 190
Roseville, CA 95661
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20. Dr. Jonathan Gant
Sutter Roseville Medical Center
Medical Plaza Drive, Suite 190
Roseville, CA 95661
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ZA, Dr. Dawn Hitchcock
rreeth
Sutter Roseville Medical Center
Medical Plaza Drive, Suite 190
Roseville, CA 95661
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ads Ferhan Maher, CPO
Norell Prosthetics & Orthotics
48531 Warm Springs Blvd., Suite 401
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Fremont, CA 94539
23. Michael Openshaw, CPO
Norell Prosthetics & Orthotics
BO
48531 Warm Springs Blvd., Suite 401
Fremont, CA 94539
24. Bryan Hayes, CPO
River City Prosthetics & Orthotics
3001 P Street, Suite B
Sacramento, CA 95816
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[PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION
25. Eric Smith, CP
River City Prosthetics & Orthotics
3001 P Street, Suite B
Sacramento, CA 95816
26. Dr. Himaja Peddi
Sutter Roseville Medical Center
One Medical Plaza Drive
Roseville, CA 95661
27. Dr. Theodor Feinstat
Sutter Roseville Medical Center
One Medical Plaza Drive
Roseville, CA 95661
28. Dr. Bijan Bijan
10 Sutter Roseville Medical Center
One Medical Plaza Drive
11 Roseville, CA 95661
12
29, Dr. Amin Matin
13 Sutter Roseville Medical Center
One Medical Plaza Drive
14 Roseville, CA 95661
15 30. Rupinder Deol NP
Sutter Roseville Medical Center
16
Medical Plaza Drive, Suite 190
17 Roseville, CA 95661
18 31. Dr. Renata Kesala
Sutter Roseville Medical Center
19 Medical Plaza Drive, Suite 190
Roseville, CA 95661
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21 32. Dr. Linda Miles
Sutter Roseville Medical Center
22 Medical Plaza Drive, Suite 190
Roseville, CA 95661
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33, Dr. Hannah Wong
24
Diagnostic Pathology Medical Group, Inc.
25 Sutter Roseville Medical Center
One Medical Plaza Drive
26 Roseville, CA 95661
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[PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION
34. Dr. David Olsen
Diagnostic Pathology Medical Group, Inc.
Lo Sutter Roseville Medical Center
One Medical Plaza Drive
Roseville, CA 95661
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aos Dr. Ron Rowberry
Diagnostic Pathology Medical Group, Inc.
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Sutter Roseville Medical Center
One Medical Plaza Drive
DH
Roseville, CA 95661
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36. Dr. David Olsen
SS
Diagnostic Pathology Medical Group, Inc.
Sutter Roseville Medical Center
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One Medical Plaza Drive
10 Roseville, CA 95661
il 37. Dr. Jonathan Bennett
Diagnostic Pathology Medical Group, Inc.
12
Sutter Roseville Medical Center
13 One Medical Plaza Drive
Roseville, CA 95661
14
38. Dr. Ellen Sung
15 Diagnostic Pathology Medical Group, Inc.
Sutter Roseville Medical Center
16
One Medical Plaza Drive
17 Roseville, CA 95661
18 39. Janel Pabon, PA
Sutter Roseville Medical Center
19 Medical Plaza Drive, Suite 190
Roseville, CA 95661
20
21 40. Amanda Balser, OT
Sutter Roseville Medical Center
22 Medical Plaza Drive, Suite 190
Roseville, CA 95661
23
41. Rupinder Deol, NP
24
Sutter Roseville Medical Center
a3 Medical Plaza Drive, Suite 190
Roseville, CA 95661
26
42. Tom Lenhart, RN
27 Sutter Roseville Medical Center
Medical Plaza Drive, Suite 190
28
Roseville, CA 95661
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[PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION
43. Keri Sippel, RN
Sutter Roseville Medical Center
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Medical Plaza Drive, Suite 190
Roseville, CA 95661
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Hermina Egmond, RN
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Sutter Roseville Medical Center
Medical Plaza Drive, Suite 190
TH
Roseville, CA 95661
BDO
45. Jennifer Maul, RN
SF
Sutter Roseville Medical Center
Medical Plaza Drive, Suite 190
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Roseville, CA 95661
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46. Melissa Jones, RN
Sutter Roseville Medical Center
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Medical Plaza Drive, Suite 190
Roseville, CA 95661
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47, Julie Gross, PT
UC Davis Medical Center
2315 Stockton Boulevard
Sacramento, California 95817
Dated: February 5 2018 Respectfully submitted,
ERIC RATINOFF LAW CORP.
Mw ERIC J. RATINOFE
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MARLA C. STRAIN
Attorneys for Plaintiff
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[PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION
DECLARATION OF MARLA C, STRAIN
NLD
I, MARLA C. STRAIN, declare:
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1. Iam an attorney licensed to practice before all the Courts of the State of California,
and am an senior associate attorney at Eric Ratinoff Law Corp., attorneys of record representing
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Plaintiffs in this matter. I make this declaration based upon personal knowledge and/or the expert
BRN
writings appended hereto and, if called as a witness, I could and would competently testify as
follows:
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CS
2. Pursuant to California Code of Civil Procedure Section 2031.210, et seq., the
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following individuals, in addition to other experts which, in the future, may be designated by
Petitioners, have been retained and are expected to render expert testimony at the trial of the above
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action either orally or by deposition testimony:
3. The foregoing is a brief narrative of the qualifications of each expert and the general
substance of the testimony:
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A. The Curriculum Vitae of Patrick Joseph, M.D. is attached hereto as Exhibit
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A. Dr. Joseph is Board Certified in Internal Medicine, Infectious Diseases, and Infection Control.
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ements
Dr. Joseph is also a Fellow of the Infectious Disease Society of America and a Fellow of the Society
of Healthcare Epidemiologists of America. He is expected to testify regarding standard of care,
injuries, causation and damages, including but without limitation, issues relating to infectious
disease. Dr. Joseph’s fee for deposition testimony is $1250 for two hours and $625 per hour
BRD
thereafter. He charges $525 per hour for attorney consultations.
BRO
B. The Curriculum Vitae of Mark Sockell, M.D. is attached hereto as Exhibit
BO
B. Dr. Sockell is Board Certified in Internal Medicine. Dr. Sockell is expected to testify regarding
the standard of care, breach, liability, and causation. Dr. Sockell’s fee for deposition testimony is
$750 per hour and $500 per hour for attorney consultations.
C. The Curriculum Vitae of Mare Snyder, M.D. is attached hereto as Exhibit
C. Dr. Snyder is a Fellow of the American College of Emergency Physicians. Dr. Snyder is
expected to testify regarding standard of care, breach, liability, and causation. Dr. Snyder’s fee for
deposition testimony is $3000 for a half day minimum and $600 per hour for attorney consultations.
-8-
[PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION
D. The Curriculum Vitae of Charles Lee, M.D. is attached hereto as Exhibit D.
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Dr. Lee is a Diplomate of the American Board of Plastic Surgery. He is expected to testify regarding |,
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injury, causation, and damages. Dr. Lee’s fee for deposition testimony is $1250 per hour and $850
DH
per hour for attorney consultations.
BR
E. The Curriculum Vitae of Alex Barchuk, M.D. is attached hereto as Exhibit
A
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E. Dr. Barchuk is Board Certified in Physical Medicine and Rehabilitation and is a Certified Life
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Care Planner. He is expected to testify regarding injury, and damages. Dr. Barchuk’s fee for
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deposition testimony is $1000 per hour and $750 per hour for attorney consultations. He has
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prepared a written report of examination, which is attached hereto as Exhibit F. Plaintiffs reserve
the right to produce updated reports which may be prepared or received after the designated date
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for the parties’ exchange of expert witness information.
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F. The Curriculum Vitae of Drew Hittenberger, C.P., BOCO, is attached
hereto as Exhibit G. Mr. Hittenberger is a clinical Prosthetist/Orthotist. He is expected to testify
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regarding injury and damages, including without limitation, prosthetics. Mr. Hittenberger’s fee for
deposition testimony and attorney consultations is $450 per hour. He has prepared a written report
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SERRE
of examination, which is attached hereto as Exhibit H. Plaintiffs reserve the right to produce
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updated reports which may be prepared or received after the designated date for the parties’
exchange of expert witness information.
G. The Curriculum Vitae of Carol Hyland, M.A., MLS., C.L.C.P., C.D., MLS.,
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is attached hereto as Exhibit I. Ms. Hyland is a Certified Life Care Planner and Certified Disability
BEBRBR
Management Specialist. Ms. Hyland will testify regarding injury and damages including future
needs, medical care, vocational abilities and needed accommodations, vocational losses, and the
cost to fund Kim Hole’s Life Care Plan. Her fee for deposition testimony is $475 per hour and
$275 per hour for attorney consultations.
RE
H. The Curriculum Vitae of Robert Johnson is attached hereto as Exhibit J.
Mr. Johnson is a trained economist. Mr. Johnson is expected to testify regarding economic
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damages, including without limitation, the cost to fund the life care plan, the net discount
rate, the
loss of earnings and loss of earning capacity, and related topics, both in terms of present
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cash and
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[PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMAT
ION
future values. Mr. Johnson’s fee for deposition testimony and attorney consultations is $700 per
NNO
hour.
WD
4. In addition to the foregoing designation of experts, this party expects that other
BP
individuals, in light of their status as Plaintiffs’ treating physicians, doctors, nurses, therapists,
psychiatrists, and psychologists may be called to testify and render expert testimony, as well.
OO
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Plaintiffs reserve the right to call any prior, or subsequent, treating physicians, nurses, therapists,
psychologists, psychiatrists, instructors, or other health care providers or educators, as well as any
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expert designed by any party in this case. Specifically, Plaintiffs reserve the right to call at trial as
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expert and/or rebuttal expert witnesses whose identities are contained in the Plaintiffs’ medical,
educational, or other records with respect to negligence, causation, and damages, and related topics,
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as those issues related to their care, treatment and management of Kim Hole. It is also anticipated
that Plaintiffs’ non-retained expert witnesses will testify at trial pursuant to their testimony at
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deposition, or which defense counsel is aware.
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3, I am informed and believe that the aforementioned retained experts will be
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sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning
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the specific testimony, including any opinion and its basis, that the experts, and each of them, are
form
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expected to give at trial. The aforementioned retained experts have agreed to testify at trial.
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6. Should Plaintiffs’ experts be deposed before defense experts, those deposed by the
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defense will not be made available a second time without a court order. Plaintiffs’ experts may not
be in a position to have reviewed any defense expert depositions before their own testimony, but
RD
BRO
may comment regarding the opinions of defense experts at the time of trial. No depositions of
BEBE
BRD
Plaintiffs’ experts will go forward first without a stipulation in advance that an expert will not be
precluded from expressing his or her respective opinion as to the opinions of other later taken expert
depositions.
BNMNRRRE
I declare under penalty of perjury that the foregoing is true and correct, and that my
Declaration was made this 5 day of February, 2018, at Sacran alifornia.
MARLA C. STRAIN
-10-
[PROPOSED] PLAINTIFFS’ AUGMENTED
Preview
DOCUMENT: Ex Parte: Application[ 404110) CASE: S-CV-0034326 DATE: 02/07/2018 ERIC J. RATINOFF, SBN 166204 = NO MARLA C. STRAIN, SBN 132142 ERIC RATINOF® LAW CORP. FILED AT OF CALIFORNIA 401 Watt Avenue SUPERIOR OF PLAGER Sacramento, California 95864 FES07 2018 WO Telephone: (916) 970-9100 BP Facsimile: (916) 246-1696 FR Attorneys for Plaintiffs KIMBERLY HOLE and LARRY HOLE DWN SN CO SUPERIOR COURT OF THE STATE OF CALIFORNIA Oo IN AND FOR THE COUNTY OF PLACER KIMBERLY HOLE and LARRY HOLE, CASE NO. SCV0034326 Plaintiffs, PLAINTIFFS’ EX PARTE APPLICATION ket TO FOR AN ORDER ALLOWING VS. PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST AND SUTTER ROSEVILLE MEDICAL DECLARATION OR, ALTERNATIVELY, CENTER; SUTTER ROSEVILLE FOR AN ORDER SHORTENING TIME TO URGENT CARE; SUTTER HEALTH HEAR MOTION TO AUGMENT EXPERT SACRAMENTO SIERRA REGION; WITNESS LIST; MEMORANDUM OF CALIFORNIA EMERGENCY POINTS AND AUTHORITIES AND PHYSICIANS; TERRY ARIKAWA D.O.; DECLARATION OF MARLA C. STRAIN NAIL SOLUTIONS; KAPARA HAM and IN SUPPORT THEREOF DOES 1 through 50, inclusive, Date: February 7, 2018 Defendants. Time: 8:00 a.m. Dept.: 42 DD Complaint Filed: February 28, 2014 DR Trial Date: April 2, 2018 BRO TO DEFENDANTS, TERRY ARIKAWA D.O. AND SUTTER MEDICAL GROUP AND BP TO THEIR ATTORNEYS OF RECORD: RO Plaintiffs KIM HOLE and LARRY HOLE hereby apply ex parte for an Order allowing Plaintiffs to augment their expert witness list and expert declaration to include Dr. Mark Sockell, who was first contacted by Plaintiffs subsequent to expert witness disclosure in this case when Plaintiffs’ disclosed expert, Dr. Zachary Lutsky, notified Plaintiffs he was unavailable to testify -1- EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST mm due to a personal crisis. Good cause exists for this ex parte application because trial is set for April 2, 2018 and expert depositions are scheduled to begin later this month. Alternatively, Plaintiffs HN apply ex parte for an Order shortening time to hear the attached Application as a motion to augment BD Plaintiffs’ expert disclosure and declaration pursuant to Code of Civil Procedure § 1005 and FB California Rule of Court 3.1300(b). A WB This Application is brought pursuant to California Code of Civil Procedure §§ 2034.610 and 2034.620 on the grounds that (a) Plaintiffs engaged in a timely exchange of expert witness SI OO information, which included the designation of Dr. Zachary Lutsky as a standard of care expert; (b) On January 24, 2018, Dr. Lutsky surprised Plaintiffs by advising that due to an unforeseen crisis in Oo his personal life he would be unavailable to testify at deposition or at the April 2, 2018 trial; (c) On ah January 25, 2018, Plaintiffs informed Defendants of Dr. Lutsky’s unavailability and their intent to rh retain another expert to testify in Dr. Lutsky’s place. Plaintiffs asked Defendants to stipulate to mah allow Plaintiffs to augment their expert list and disclosure upon retention of a new (replacement) mk expert. Defendants declined to do so; (d) Upon retention of a new (replacement) expert, Plaintiffs eh promptly brought this matter before the Court and disclosed the expert’s information to Defendants; ew and (e) Plaintiffs designation of a new standard of care expert to replace their now unavailable, teh previously designated expert does not prejudice Defendants. This Application is based upon this Ex Parte Application, the attached Memorandum of Points and Authorities and Declaration of Marla C. Strain filed and served concurrently herewith, upon all papers, pleadings, records on file herein, and upon such further oral and documentary evidence as may be presented at the hearing DR RD on this Application. RD BRD Dated: February Ab, 2018 ERIC RATINOFF LAW CORP. BRO ERIC J. RATINOFF MARLA C. STRAIN Attorney for Plaintiffs Dia EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This lawsuit involves a complex professional medical negligence matter involving a rare infectious disease - necrotizing fasciitis — and extreme injuries. By this application, Plaintiffs seek an order allowing them to augment their expert witness list and expert disclosure to include Dr. WA Mark Sockell, as an expert on the standard of care. This is necessary because on January 24, 2018 A Plaintiffs’ previously disclosed standard of care expert, Dr. Zachary Lutsky, informed Plaintiffs YN Oo that he was unavailable to testify due to “an unforeseen crisis in his personal life.” (Ex. D to Declaration of Marla C. Strain (“Strain Decl.”).) Dr. Lutsky’s unavailability was a complete 0 10 surprise to Plaintiffs. Plaintiffs promptly advised Defendants of Dr. Lutsky’s unavailability, and of ll their intent to retain a standard of care expert to testify in lieu of Dr. Lutsky. (Ex. E to Strain Decl.) 12 Plaintiffs requested Defendants stipulate to allow Plaintiffs to augment their expert witness list and 13 disclosure. (Id.) Defendants declined to do so. Upon retaining a replacement expert, Plaintiffs 14 promptly brought their Application before this Court. Good cause exists for this ex parte application 15 because trial is set for April 2, 2018 and expert depositions are scheduled to begin later this month. 16 Allowing Plaintiffs to augment their expert witness list and disclosure — so as to put them 17 back in the same position they were in before Dr. Lutsky’s surprise announcement of unavailability 18 - does not prejudice Defendants. None of the parties’ expert witnesses have yet been deposed. These 19 depositions are currently being coordinated by the parties for late February and March, and Dr. 20 Sockell is available to testify during this time period. Dr. Sockell’s CV and fee schedule were 21 provided to Defendants on February 5, 2018. (Strain Decl., attached hereto, par. 11.) 22 I. TIMELY NOTICE WAS GIVEN OF THIS EX PARTE APPLICATION, AND 23 COUNSEL MET AND CONFERRED PRIOR TO FILING SAME. 24 On January 29, 2018, counsel for both parties meet and conferred by telephone with respect 25 Plaintiffs request that Defendants stipulate to allow Plaintiffs to augment their expert witness list 26 and disclosure. (Strain Decl., attached hereto, par.10.) Defendants’ counsel, Ms. Todd, advised she a7 would not stipulate to the augmentation. (Id.) Plaintiffs’ counsel, Ms. Strain, then advised Ms. Todd 28 that she would prepare an ex parte application and schedule the ex parte hearing for a date Be EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST convenient to Ms. Todd’s schedule. (Id.) The decision to retain Dr. Sockell was made over the February 3" weekend. (Strain Decl., NO attached hereto, par. 11.) On February 5, 2018, Ms. Strain wrote Ms. Todd a letter advising Ms. WD Todd of Dr. Sockell’s name, and included his CV and fee rate schedule. (Id.) Said correspondence FF further meet and conferred regarding the requested stipulation. (Id.) That same day, Plaintiffs’ wT DB counsel gave notice that this ex parte Application would be made on February 7, 2018 at 8:00 a.m. in Department 42 of the Placer County Superior Court. (Ex. F to Strain Decl.) Also on February 5, NN 2018, Plaintiffs served Defendants’ counsel with its (Proposed) Augmented Expert Designation CO and Declaration adding Dr. Sockell in lieu of Dr. Lutsky. (Strain Decl., attached hereto, par. 13.) Oo Til. LEGAL ANALYSIS et A. Good Cause Exists for this Ex Parte Request and Order Placer County Local Rule 10.8 provides this court may issue an order pursuant to an ex he parte request when necessary to prevent injustice or irreparable harm and due to time constraints, a noticed motion cannot be made. As discussed below, Plaintiffs satisfy all of the statutory pre- requisites for this Court to grant a Motion to Augment. Here, good cause exists for this ex parte Application because time constraints preclude the effective use of a notice motion. The trial date is two months away and expert depositions are being scheduled for the late February and March. The testimony of an expert witness is required in every professional negligence case to establish the RD applicable standard of care. CACI 501. Plaintiffs will suffer irreparable harm if the Court does not grant this Application. RD B. Legal Authority BRO Section 2034.610(a) of the California Code of Civil Procedure provides that, on motion of DO any party who has engaged in a timely exchange of expert witness information, the Court may grant leave to augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. Plaintiffs timely exchanged expert witness information on August 28, 2017.! ' This case was previously set for trial to begin on October 16, 2017. Expert witness disclosure was scheduled for August 28, 2017. On July 13, 2017, this Court granted Plaintiffs’ Stipulated Ex Parte Application and continued the trial date to April 2, 2018. Pursuant to the parties’ agreement, expert disclosure and discovery cut-off remained governed by the October 16, 2017 trial date. (Strain Decl., attached hereto, par. 5.) 4. EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST In determining whether to grant the motion, Section 2034.620 provides that the Court “shall” grant leave to augment or amend an expert witness list or declaration if the following conditions are satisfied: (a) The Court has taken into account the extent to which the opposing party has relied on the list of expert witnesses; Here, depositions have not been taken of any disclosed experts. There has been N no reliance by Defendants. ~ (b) The Court has determined that any party opposing the motion will not be prejudiced in ao maintaining that party’s action or defense on the merits; Ko) 10 This is not a situation where Defendants, due to reliance on the previous list of 11 experts, now are not prepared and cannot be prepared in time for trial. To the contrary, 12 no expert depositions have been taken and Dr. Sockell was disclosed to Defendants 13 more than 50 days, the standard time for disclosure of experts, before trial. There is no 14 prejudice. 15 Furthermore, Plaintiffs are not seeking to disclose an extra/additional expert to 16 testify as to a new matter. Rather, Plaintiffs are merely seeking to replace Dr. Zachary 17 Lutsky, who through no fault of Plaintiffs is unavailable due to an unforeseen personal 18 crisis, with a replacement standard of care expert. In their initial expert disclosures, 19 Plaintiffs and Defendants each designated two expert witnesses to testify regarding 20 standard of care.’ Allowing Plaintiffs to augment as requested, merely restores the 21 parties to the status quo which existed prior to Dr. Lutsky’s surprise notice of his 22 unavailability. Plaintiffs requested augmentation is not cumulative and does not place 23 Defendants in a different position than before. Both parties would still have two 24 designated standard of care experts. 23 (c) The Court has determined the moving party failed to determine to call that expert 26 witness, or to offer the different or additional testimony of that expert witness as a result 27 of mistake, inadvertence, surprise, or excusable neglect; and the moving party has (1) 28 * Defendants disclosed Dr. David Talan and Dr. Robert Norman to testify regarding standard of care. Any suggestion that “cumulative” experts would prejudice Defendants should be assessed within this reality. -5- EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony; (2) promptly thereafter the moving party served a copy of the proposed expert witness information concerning the expert or the testimony described in section 2034.260 on all other parties. Prior to the Court’s continuance of the October 16, 2017 trial date to April 2, 2018, Plaintiffs cleared the then proposed April 2, 2018 trial date with all of their DH experts. Dr. Lutsky had represented that he was prepared and available to testify at SY CO deposition and trial. Dr. Lutsky’s January 24, 2018 email was the first notice of Dr. Lutsky’s unavailability. It came as a complete surprise. (Strain Decl. attached hereto, o 10 par. &.) 1] The present application is timely and the relief was promptly sought. Plaintiffs 12 immediately undertook to retain a standard of care expert to replace Dr. Lutsky, and 13 upon retaining Dr. Sockell over the February 3" weekend, promptly sought leave to 14 augment. Dr. Sockell’s identity, CV and fee schedule was provided to defense counsel 15 on February 5, 2018. Plaintiffs’ proposed Augmented Designation and Expert Witness 16 Declaration were provided to defense counsel February 5, 2018 and are attached to the 17 Strain Decl. as Exhibit A. 18 IV. ALTERNATIVELY, THE COURT HAS THE AUTHORITY TO HEAR A 19 MOTION REGARDING THIS SAME MATTER ON SHORTED TIME. 20 California law provides that “[t]he court, on its own motion or on application for an order 21 shortening time supported by a declaration showing good cause, may prescribe shorter times for 22 the filing and service of papers than the times specified in Code of Civil Procedure § 1005.” 23 (California Rules of Court Rule 3.1300(b); see also Code of Civil Procedure Section § 1005 (b) 24 (allowing the court to prescribe a shorter time for the noticing of motions).) 25 Here, if the Court is not willing to grant the relief sought on an ex parte basis, good cause 26 exists to alternatively grant an order shortening time to hear a motion on these same issues. The 27 Application could be deemed a notice of motion and motion if the Court were not included to grant 28 this Application on an ex parte basis. Good cause exists to shorten time due to the upcoming April -6- EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST 2, 2018 trial date and the fact that the parties are currently coordinating the scheduling of expert depositions for February and March 2018. V. CONCLUSION It is axiomatic that in this medical negligence case, expert testimony with respect to the applicable standard of care is fundamental and crucial. For all of the reasons set forth above, Plaintiffs respectfully request this Court allow Plaintiffs to augment their expert designation so as NH “I to allow the substitution of Dr. Mark Sockell as an expert in place of Dr. Zachary Lutsky, who is now unavailable due to an unforeseen personal crisis. CO Oo 10 Dated: February b. 2018 Respectfully submitted, 11 {2 ERIC RATINOFF LAW CORP. 13 14 By: AG 2. CS — 15 ERIC J. RATINOFF MARLA CLSTRAIN 16 Attorneys for Plaintiff 17 18 19 20 21 Ze 23 24 25 26 27 28 -7- EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST DECLARATION OF MARLA C, STRAIN I, MARLA C. STRAIN, declare: 1. I am an attorney at law licensed to practice before all of the courts of the State of California. I am a senior associate attorney at Eric Ratinoff Law Corp., attorneys of record for plaintiffs in this case. AH DO Ds I am familiar with the pleadings and discovery to date in this action. I have personal SYN knowledge of the facts stated in this declaration. If called upon to testify to the matters stated here, I could and would do so competently. SF oO 3. Attached as Exhibit A is a true and correct copy of Plaintiffs’ (Proposed) Augmented 10 Designation and Expert Witness Declaration. Attached as Exhibit B is a true and correct copy of \1 Dr. Sockell’s CV and rate schedule. This information was provided to defense counsel on February 12 5, 2018. 13 4, Trial in this medical negligence case was previously set to begin on October 16, 14 2017. On July 13, 2017, this Court granted Plaintiffs’ Stipulated Ex Parte Application and 15 continued the trial date to April 2, 2018. A true and correct copy of the Court’s Order is attached 16 hereto as Exhibit C. Plaintiffs had confirmed all of their experts’ availability to testify prior to the 17 Court’s order continuing trial to April 2, 2018. 18 as Pursuant to the parties’ agreement, expert disclosure and discovery cut-off remained 19 governed the October 16, 2017 trial date. On August 28, 2017, the parties timely exchanged expert 20 witness disclosures. Plaintiffs disclosed Dr. Zachary Lutsky and Dr. Mark Synder to testify 21 regarding standard of care. Defendants disclosed Dr. David Talan and Dr. Robert Norman to testify 22 regarding standard of care. Defendants also disclosed Dr. Talan as an infectious disease expert who 23 would testify as to causation and damages, and disclosed a second infectious disease expert, Dr. 24 James Leggett, to testify as to causation and damages. Plaintiffs disclosed one infectious disease 25 expert, Dr. Patrick Joseph. 26 6. The parties are currently coordinating the depositions of all expert witnesses for 27 February and March. No expert depositions have yet been taken. 28 //] -8- EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST 7. On January 24, 2018, Plaintiffs received an email from Dr. Lutsky stating that “due to a recent unforeseen crisis in my personal life I am going to no longer be available to provide bv testimony on this matter. I am very sorry for any inconvenience this may cause.” Dr. Lutsky’s WW Declaration, received February 5, 2018, is attached hereto as Exhibit D. His email is Exhibit A m thereto. WD 8. Dr. Lutsky’s unavailability was a complete surprise to Plaintiffs. DW 9. On January 25, 2018, I wrote to defense counsel, Ms. Kat Todd, and advised her of I CO Dr. Lutsky’s unavailability. A true and correct copy of my January 25, 2018 letter to Ms. Todd is attached hereto as Exhibit E. Oo 10 10. On January 29, 2018 Ms. Todd and I spoke on the telephone regarding this matter. Ms. 11 Todd advised that she would not stipulate to Plaintiffs augmentation of their expert disclosure, 12 stating the augmentation would be cumulative and prejudicial to Defendants. I reminded Ms. Todd 13 that both Plaintiffs and Defendants had disclosed two experts to testify as to standard of care and 14 augmentation would only restore the parties to the status quo. I reiterated that Plaintiffs’ would 15 disclose the expert’s identity and provide the CV and fee schedule immediately, once he or she was 16 retained. I then advised that I would prepare an ex parte application and schedule the hearing for a 17 date convenient to Ms. Todd’s schedule. 18 11. Plaintiffs made the decision to retain Dr. Sockell over the weekend of February 3, 2018. 19 On Monday, February 5, 2018, I wrote a letter advising Ms. Todd of Dr. Mark Sockell’s name, and 20 included his CV and fee schedule. In said letter, I attempted to further meet and confer regarding 21 the requested stipulation. A true and correct copy of the letter is attached as Exhibit F. 22 12. On February 5, 2018, at approximately 10:30 a.m., my office confirmed Ms. Todd was 23 available to appear and gave notice Plaintiffs’ ex parte Application would be made on February 7, 24 2018 at 8:00 a.m. in Department 42 of the Placer County Superior Court. (See Exhibit F attached 25 hereto.) 26 ‘Tf 27 //] 28 H/T] -9. EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST 13. On February 5, 2018, Plaintiffs served Defendants with its [Proposed] Augmented PO Expert Designation and Declaration (attached as Exhibit A to the Strain Decl.) adding Dr. Mark Sockell in lieu of Dr. Lutsky. WH SF I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Ww WB Executed on this day 6" of February, 2018 in Sacramento, California. SN Waru t-3--—_ 7 Oo MARLA‘C, STRAIN Oo rt rm hm im Dim DN PY NO NO NO -10- EX PARTE APPLICATION FOR AN ORDER ALLOWING PLAINTIFFS TO AUGMENT THEIR EXPERT WITNESS LIST EXHIBIT A ERIC J. RATINOFF, SBN 166204 MARLA C. STRAIN, SBN 132142 LP ERIC RATINOFF LAW CORP. 401 Watt Avenue Sacramento, California 95864 WH Telephone: (916) 970-9100 Facsimile: (916) 246-1696 A & Attorneys for Plaintiffs KIMBERLY HOLE and LARRY HOLE DN S CO SUPERIOR COURT OF THE STATE OF CALIFORNIA oO IN AND FOR THE COUNTY OF PLACER 10 KIMBERLY HOLE and LARRY HOLE, CASE NO. SCV0034326 11 12 Plaintiffs, 13 VS. [PROPOSED] 14 SUTTER ROSEVILLE MEDICAL PLAINTIFFS’ AUGMENTED 15 CENTER; SUTTER ROSEVILLE DISCLOSURE OF EXPERT WITNESS URGENT CARE; SUTTER HEALTH INFORMATION AND DECLARATION OF 16 SACRAMENTO SIERRA REGION; MARLA C. STRAIN CALIFORNIA EMERGENCY 17 PHYSICIANS; TERRY ARIKAWA D.O.; NAIL SOLUTIONS; KAPARA HAM and 18 DOES 1 through 50, inclusive, 19 Defendants. Complaint Filed: February 28, 2014 Trial Date: April 2, 2018 20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 Pursuant to Code of Civil Procedure section 2034.260, Plaintiff, KIMBERLY HOLE 22 and LARRY HOLE, hereby set forth their list of expert witnesses, and other non-retained expert 23 Witnesses who may be called to testify at the time of Arbitration of this matter. 24 RETAINED EXPERTS 1. Pat Joseph, M.D. 25 5601 Norris Canyon Road, Suite #220 San Ramon, California 94583 26 2. Mark Sockell, M.D. 27 41 Olympia Way Novato, CA 94945 28 -l- [PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION Marc Snyder, M.D. 3942 22" Street Re DLO San Francisco, CA 94114 Charles Lee, M.D. 2250 Hayes Street, Suite #508 San Francisco, CA 94117 Be Alex Barchuk, M.D., C.L.C.P. DH 1125 Sir Francis Drake Boulevard Kentfield, CA 94904 DBD Drew Hittenberger, C.P., BOCO YN 181 Lynch Creek Way, Suite 101 Petaluma, CA 94954 So Carol Hyland, M.A., M.S., C.L.C.P., C.D.M.S. 4120 Canyon Road o Lafayette, CA 94549 Robert W. Johnson Robert W. Johnson & Associates Oe 4984 El Camino Real, Suite 210 Los Altos, CA 94022 re NON-RETAINED EXPERTS Dr. Shawn Aghili Sutter Roseville Medical Center Oe One Medical Plaza Drive Roseville, CA 95661 Dr. Ranjani Kalyan Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 a Roseville, CA 95661 Dr. Kamren Ahmen OO Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 Roseville, CA 95661 | Dr William Webster Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 Roseville, CA 95661 Dr. Phillip Bosco Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 Roseville, CA 95661 os [PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION Dr Andrew DeMar em Sutter Roseville Medical Center YW 5 Medical Plaza Drive, Suite 190 Roseville, CA 95661 BW Dr. Christopher Finkemeier KR Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 WH Roseville, CA 95661 DR Dr. Rafael Neiman YN Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 OM Roseville, CA 95661 0 Dr. Lauren Lee Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 BEES fmf Roseville, CA 95661 10. Dr. Paul Gregory Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 De Roseville, CA 95661 mhpamm RBE 11. Dr. James Maher Sutter Roseville Medical Center pe 5 Medical Plaza Drive, Suite 190 Roseville, CA 95661 SSRI 12. Dr. Ellen Sung Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 Roseville, CA 95661 S 13. Dr. Adarsh Bhat BRD Sutter Roseville Medical Center SRR BO 5 Medical Plaza Drive, Suite 190 Roseville, CA 95661 14. Dr. Granger Wong BF Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 Roseville, CA 95661 Fan 15. Dr. Michael Ridgeway Sutter Roseville Medical Center 5 Medical Plaza Drive, Suite 190 ® Roseville, CA 95661 4. [PROPOSED] PLAINTIFFS” AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION 16. Dr. Sharon Katuin PN Sutter Roseville Medical Center Medical Plaza Drive, Suite 190 WD Roseville, CA 95661 BR 17. Dr. Karanjit Basrai Sutter Roseville Medical Center A 1121 Maidu Drive Auburn, CA 95603 WN 18. Dr. Crystal Carter SS Sutter Roseville Medical Center CO One Medical Plaza Drive Roseville, CA 95661 Oo 19. Dr. Dung Lee fem Sutter Roseville Medical Center Medical Plaza Drive, Suite 190 Roseville, CA 95661 ammo 20. Dr. Jonathan Gant Sutter Roseville Medical Center Medical Plaza Drive, Suite 190 Roseville, CA 95661 neh ZA, Dr. Dawn Hitchcock rreeth Sutter Roseville Medical Center Medical Plaza Drive, Suite 190 Roseville, CA 95661 ete ads Ferhan Maher, CPO Norell Prosthetics & Orthotics 48531 Warm Springs Blvd., Suite 401 BD Fremont, CA 94539 23. Michael Openshaw, CPO Norell Prosthetics & Orthotics BO 48531 Warm Springs Blvd., Suite 401 Fremont, CA 94539 24. Bryan Hayes, CPO River City Prosthetics & Orthotics 3001 P Street, Suite B Sacramento, CA 95816 -4. [PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION 25. Eric Smith, CP River City Prosthetics & Orthotics 3001 P Street, Suite B Sacramento, CA 95816 26. Dr. Himaja Peddi Sutter Roseville Medical Center One Medical Plaza Drive Roseville, CA 95661 27. Dr. Theodor Feinstat Sutter Roseville Medical Center One Medical Plaza Drive Roseville, CA 95661 28. Dr. Bijan Bijan 10 Sutter Roseville Medical Center One Medical Plaza Drive 11 Roseville, CA 95661 12 29, Dr. Amin Matin 13 Sutter Roseville Medical Center One Medical Plaza Drive 14 Roseville, CA 95661 15 30. Rupinder Deol NP Sutter Roseville Medical Center 16 Medical Plaza Drive, Suite 190 17 Roseville, CA 95661 18 31. Dr. Renata Kesala Sutter Roseville Medical Center 19 Medical Plaza Drive, Suite 190 Roseville, CA 95661 20 21 32. Dr. Linda Miles Sutter Roseville Medical Center 22 Medical Plaza Drive, Suite 190 Roseville, CA 95661 23 33, Dr. Hannah Wong 24 Diagnostic Pathology Medical Group, Inc. 25 Sutter Roseville Medical Center One Medical Plaza Drive 26 Roseville, CA 95661 27 28 -5- [PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION 34. Dr. David Olsen Diagnostic Pathology Medical Group, Inc. Lo Sutter Roseville Medical Center One Medical Plaza Drive Roseville, CA 95661 YH HR aos Dr. Ron Rowberry Diagnostic Pathology Medical Group, Inc. A Sutter Roseville Medical Center One Medical Plaza Drive DH Roseville, CA 95661 SS 36. Dr. David Olsen SS Diagnostic Pathology Medical Group, Inc. Sutter Roseville Medical Center oOo One Medical Plaza Drive 10 Roseville, CA 95661 il 37. Dr. Jonathan Bennett Diagnostic Pathology Medical Group, Inc. 12 Sutter Roseville Medical Center 13 One Medical Plaza Drive Roseville, CA 95661 14 38. Dr. Ellen Sung 15 Diagnostic Pathology Medical Group, Inc. Sutter Roseville Medical Center 16 One Medical Plaza Drive 17 Roseville, CA 95661 18 39. Janel Pabon, PA Sutter Roseville Medical Center 19 Medical Plaza Drive, Suite 190 Roseville, CA 95661 20 21 40. Amanda Balser, OT Sutter Roseville Medical Center 22 Medical Plaza Drive, Suite 190 Roseville, CA 95661 23 41. Rupinder Deol, NP 24 Sutter Roseville Medical Center a3 Medical Plaza Drive, Suite 190 Roseville, CA 95661 26 42. Tom Lenhart, RN 27 Sutter Roseville Medical Center Medical Plaza Drive, Suite 190 28 Roseville, CA 95661 -6- [PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION 43. Keri Sippel, RN Sutter Roseville Medical Center Pe Medical Plaza Drive, Suite 190 Roseville, CA 95661 WD Hermina Egmond, RN Fe Sutter Roseville Medical Center Medical Plaza Drive, Suite 190 TH Roseville, CA 95661 BDO 45. Jennifer Maul, RN SF Sutter Roseville Medical Center Medical Plaza Drive, Suite 190 Oo Roseville, CA 95661 o 46. Melissa Jones, RN Sutter Roseville Medical Center fh Medical Plaza Drive, Suite 190 Roseville, CA 95661 Drennanrh 47, Julie Gross, PT UC Davis Medical Center 2315 Stockton Boulevard Sacramento, California 95817 Dated: February 5 2018 Respectfully submitted, ERIC RATINOFF LAW CORP. Mw ERIC J. RATINOFE RQ MARLA C. STRAIN Attorneys for Plaintiff BDO fe [PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION DECLARATION OF MARLA C, STRAIN NLD I, MARLA C. STRAIN, declare: WD 1. Iam an attorney licensed to practice before all the Courts of the State of California, and am an senior associate attorney at Eric Ratinoff Law Corp., attorneys of record representing BR AR Plaintiffs in this matter. I make this declaration based upon personal knowledge and/or the expert BRN writings appended hereto and, if called as a witness, I could and would competently testify as follows: SN CS 2. Pursuant to California Code of Civil Procedure Section 2031.210, et seq., the oOo following individuals, in addition to other experts which, in the future, may be designated by Petitioners, have been retained and are expected to render expert testimony at the trial of the above pammeemankammh action either orally or by deposition testimony: 3. The foregoing is a brief narrative of the qualifications of each expert and the general substance of the testimony: fmh A. The Curriculum Vitae of Patrick Joseph, M.D. is attached hereto as Exhibit pmh A. Dr. Joseph is Board Certified in Internal Medicine, Infectious Diseases, and Infection Control. eeh ements Dr. Joseph is also a Fellow of the Infectious Disease Society of America and a Fellow of the Society of Healthcare Epidemiologists of America. He is expected to testify regarding standard of care, injuries, causation and damages, including but without limitation, issues relating to infectious disease. Dr. Joseph’s fee for deposition testimony is $1250 for two hours and $625 per hour BRD thereafter. He charges $525 per hour for attorney consultations. BRO B. The Curriculum Vitae of Mark Sockell, M.D. is attached hereto as Exhibit BO B. Dr. Sockell is Board Certified in Internal Medicine. Dr. Sockell is expected to testify regarding the standard of care, breach, liability, and causation. Dr. Sockell’s fee for deposition testimony is $750 per hour and $500 per hour for attorney consultations. C. The Curriculum Vitae of Mare Snyder, M.D. is attached hereto as Exhibit C. Dr. Snyder is a Fellow of the American College of Emergency Physicians. Dr. Snyder is expected to testify regarding standard of care, breach, liability, and causation. Dr. Snyder’s fee for deposition testimony is $3000 for a half day minimum and $600 per hour for attorney consultations. -8- [PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMATION D. The Curriculum Vitae of Charles Lee, M.D. is attached hereto as Exhibit D. eB Dr. Lee is a Diplomate of the American Board of Plastic Surgery. He is expected to testify regarding |, PD injury, causation, and damages. Dr. Lee’s fee for deposition testimony is $1250 per hour and $850 DH per hour for attorney consultations. BR E. The Curriculum Vitae of Alex Barchuk, M.D. is attached hereto as Exhibit A DD E. Dr. Barchuk is Board Certified in Physical Medicine and Rehabilitation and is a Certified Life SN Care Planner. He is expected to testify regarding injury, and damages. Dr. Barchuk’s fee for Se deposition testimony is $1000 per hour and $750 per hour for attorney consultations. He has oO prepared a written report of examination, which is attached hereto as Exhibit F. Plaintiffs reserve the right to produce updated reports which may be prepared or received after the designated date a FE BERxoS for the parties’ exchange of expert witness information. ah mk F. The Curriculum Vitae of Drew Hittenberger, C.P., BOCO, is attached hereto as Exhibit G. Mr. Hittenberger is a clinical Prosthetist/Orthotist. He is expected to testify hk regarding injury and damages, including without limitation, prosthetics. Mr. Hittenberger’s fee for deposition testimony and attorney consultations is $450 per hour. He has prepared a written report mh SERRE of examination, which is attached hereto as Exhibit H. Plaintiffs reserve the right to produce kk updated reports which may be prepared or received after the designated date for the parties’ exchange of expert witness information. G. The Curriculum Vitae of Carol Hyland, M.A., MLS., C.L.C.P., C.D., MLS., rm is attached hereto as Exhibit I. Ms. Hyland is a Certified Life Care Planner and Certified Disability BEBRBR Management Specialist. Ms. Hyland will testify regarding injury and damages including future needs, medical care, vocational abilities and needed accommodations, vocational losses, and the cost to fund Kim Hole’s Life Care Plan. Her fee for deposition testimony is $475 per hour and $275 per hour for attorney consultations. RE H. The Curriculum Vitae of Robert Johnson is attached hereto as Exhibit J. Mr. Johnson is a trained economist. Mr. Johnson is expected to testify regarding economic Yk damages, including without limitation, the cost to fund the life care plan, the net discount rate, the loss of earnings and loss of earning capacity, and related topics, both in terms of present ® cash and -9. [PROPOSED] PLAINTIFFS’ AUGMENTED DISCLOSURE OF EXPERT WITNESS INFORMAT ION future values. Mr. Johnson’s fee for deposition testimony and attorney consultations is $700 per NNO hour. WD 4. In addition to the foregoing designation of experts, this party expects that other BP individuals, in light of their status as Plaintiffs’ treating physicians, doctors, nurses, therapists, psychiatrists, and psychologists may be called to testify and render expert testimony, as well. OO NH Plaintiffs reserve the right to call any prior, or subsequent, treating physicians, nurses, therapists, psychologists, psychiatrists, instructors, or other health care providers or educators, as well as any SS CO expert designed by any party in this case. Specifically, Plaintiffs reserve the right to call at trial as Oo expert and/or rebuttal expert witnesses whose identities are contained in the Plaintiffs’ medical, educational, or other records with respect to negligence, causation, and damages, and related topics, pr S mh as those issues related to their care, treatment and management of Kim Hole. It is also anticipated that Plaintiffs’ non-retained expert witnesses will testify at trial pursuant to their testimony at eh BH deposition, or which defense counsel is aware. fame 3, I am informed and believe that the aforementioned retained experts will be aah AR sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning ph the specific testimony, including any opinion and its basis, that the experts, and each of them, are form RADA expected to give at trial. The aforementioned retained experts have agreed to testify at trial. anh 6. Should Plaintiffs’ experts be deposed before defense experts, those deposed by the teh BSCE defense will not be made available a second time without a court order. Plaintiffs’ experts may not be in a position to have reviewed any defense expert depositions before their own testimony, but RD BRO may comment regarding the opinions of defense experts at the time of trial. No depositions of BEBE BRD Plaintiffs’ experts will go forward first without a stipulation in advance that an expert will not be precluded from expressing his or her respective opinion as to the opinions of other later taken expert depositions. BNMNRRRE I declare under penalty of perjury that the foregoing is true and correct, and that my Declaration was made this 5 day of February, 2018, at Sacran alifornia. MARLA C. STRAIN -10- [PROPOSED] PLAINTIFFS’ AUGMENTED