Defendant's expert designation - DESIGNATION OF EXPERT WITNESS(ES) February 17, 2014 (2024)

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FILED DALLAS COUNTY 2/17/2014 1:35:34 PM GARY FITZSIMMONS. DISTRICT CLERK CAUSE NO. DC-13-00003TARA ODESSA PATRICK IN THE DISTRICT COURTLORA THOMASVS. DALLAS COUNTY, TEXASSTATE FARM MUTUALAUTOMOBILE INSURANCECOMPANY 116™ JUDICIAL DISTRICT DEFENDANT’S DESIGNATION OF EXPERT WITNESSES NOW COMES, State Farm Mutual Automobile Insurance Company, Defendant herein, andpursuant to the Court’s Uniform Scheduling Order and the Agreed Order Granting Motion forContinuance and Extension of Discovery Deadlines entered on October 18, 2013, designates thefollowing expert witnesses: LDefendant designates the following retained expert witnesses:Marvin E. Van Hal, M.D.P.O. Box 92778Southlake, Texas 76092817-267-4492214-333-9946This expert witness may be called to testify as to the causal relationship, if any, between the subjectaccident and Plaintiffs’ claimed injuries, the injuries sustained by Plaintiffs, if any, as well as thenecessity of medical services rendered to Plaintiffs and the reasonableness of the charges for suchservices and to controvert claims reflected by any affidavits filed by Plaintiffs under Texas CivilPractice and Remedies Code §18.001-18.002, if any. His opinions and impressions as well as factsknown are contained in his reports dated February 8, 2014 and February 16, 2014 which are attachedhereto as Exhibit “1” and Exhibit “2”. Further, see Dr. Van Hal’s curriculum vitae is attached hereto asExhibit “3”. This witness will be made available for the deposition upon request.DEFENDANT’S DESIGNATION OF EXPERT WITNESSES PAGEMike Rangel, P.E.Crash EngineerP.O. Box 3858Grapevine, Texas 76099469-766-0486‘This expert witness may be called to testify as to the reconstruction of this accident, the velocity ofimpact and the force of impact between the two vehicles. This expert witness may be called to testifyas to the casual relationship, if any, between the subject accident and Plaintiffs’ claimed injuries. Hisopinions and impressions as well as facts known are contained in his report dated October 3, 2013which is attached hereto as Exhibit “4”, Further, see Mr. Rangel’s curriculum vitae is attached hereto asExhibit “5”. This witness will be made available for the deposition upon request.Defendant further incorporates the experts previously identified in Defendant’s responses, firstsupplemental responses and second supplemental responses to Defendant’s Request for Disclosure(f). Plaintiffs and/or their attorneys are already in possession of said documents.In addition, Defendant reserves the right to call any and/or all of Plaintiffs’ treating physicians andhealthcare providers identified or to be identified in response and supplemental responses to writtendiscovery by both parties. Due to the physician/patient privilege, the Plaintiffs have exclusive controland a superior right to information such as medical records, medical opinions, medical facts, andcopies of medical reports from each expert; therefore, said information is more readily and moreeasily obtainable by Plaintiff to the medical records and reports filed or to be filed with the Court. Respectfully submitted, IL, RI State Bar No. 04527900 janet@colanerifirm.com DOUGLAS A. HAMAN State Bar No. 08810775 doug@colanerifirm.com THE COLANERI FIRM, P.C. 1161 West Corporate Drive, Suite 101 Arlington, Texas 76006 817-640-1588 Fax: 817-640-1680 ATTORNEYS FOR DEFENDANTDEFENDANT'S DESIGNATION OF EXPERT WiTNESSES PAGE 2CERTIFICATE OF SERVICE I do hereby certify that | have served a true and correct copy of the above and foregoingDefendant’s Designation of Expert Witnesses in this cause to the attorneys of record as listed belowon this 17" day of February, 2014. preco@ewlawyers.comShelly T. GrecoEBERSTEIN & WITHERITE, LLP3100 Monticello Avenue, Suite 500Dallas, Texas 75205 GLASA. HAMANDEFENDANT'S DESIGNATION OF EXPERT WITNESSES. PAGE 3MARVIN E. VAN HAL, M.D. ORTHOPAEDIC SURGERY P. O. Box 92778 Southlake, Texas 76092 February 8, 2014Attorney Janet K. ColaneriThe Colaneri Firm, P.C.1161 W. Corporate Drive, Suite 101Arlington, Texas 76006Phone: (817) 640-1588Fax: (817) 640-1680RE: Cause No. DC-13-00003; Tara Odessa Patrick and Lora Thomas vs. State FarmMutual Automobile Insurance CompanyDear Attorney Colaneri, Ihave reviewed the forwarded records regarding Ms. Lora Thomas, whichincluded the following records: Plaintiff's First Amended Petition; Defendant State Farm’s First Supplement to First Amended Special Exceptions, First Amended Answer and Jury Demand; Allstate’s repair estimate; Service King’s Repair Estimate; Photographs (black and white); Lora Thomas’ First Supplemental Disclosures; Lora Thomas’ Answers to Interrogatories; Lora Thomas’ Responses to Request for Production; Tara Patrick’s Responses to Interrogatories; 10 Tara Patrick and Lora Thomas’ Second Supplemental Rule 194 Disclosures; 11 Tara Patrick’s First Supplemental Answers to Interrogatories; 12 Tara Patrick’s Responses to Production; 13 Lora Thomas’ Deposition from lawsuit with Timothy Hodges and State Farm 14 Timothy Hodges’ Deposition; 15 Lora Thomas’ Deposition in lawsuit against State Farm; 16 Tara Patrick’s Deposition in lawsuit against State Farm; 17. Records concerning Lora Thomas: a. Texas Health Presbyterian Hospital of Plano; NTS ITThomas Orthopedic & Spine Specialists; Methodist Dallas Medical Center; Desoto Spine Center: Bruce Cheatham MD: Internal Medicine Associates of Plano: Texas Health Care; Texas Back Institute: Texas Health Center for Diagnostic & Surgery; Mid-Cities Imaging LP: Jennifer Weatherly; and, Methodist Charlton Medical Center. 18. Records concerning Tara Patrick Progressive Insurance Company; Texas Health Presbyterian Hospital of Plano: Texas Back Institute: Allstate Insurance Company; Mid-Cities Imaging; Desoto Spine Center: Orthopedic & Spine Specialists Texas Health Care Internal Medicine Associates of Plano: Methodist Dallas Medical Center: Ingenix; Pedro Nosnik/Head & Spine Institute of Texas 19. Defendant? s First Supplemental Responses to Disclosures; 20. Defendant’s Responses to Disclosures; 21. Defendant’s Objections and Responses to Interrogatories, Admissions, Request for Production, and Request for privilege Log; 22. Dr. Crane’s Report and Affidavits Thave not talked to or examined Ms. Thomas, but would be willing to doso if that can be arranged. I will address several issues after a brief synopsis of theseforwarded records regarding Ms. Thomas Ms. Lora Thomas was the 46 year old restrained driver of a 2006 LincolnTowncar that was rearended at a stop sign by a 2003 F150 pickup. There was policeattendance but no police report was found in the records for review. Ms. Thomas had 2passengers in her vehicle, Ms. Tara Patrick in the right front seat and her husband as aright rear seat passenger. There was no ambulance called. Both vehicles were drivenThomas 3away. Mr. Hodges reported the impact was light (depo pg 28). Ms. Thomas’ vehicledamage estimate was just over $2100 (depo pg 64). Ms. Thomas had told Mr. Hodges tha: she was fine after the accident (Hodgesdepo pg. 31). She admitted in her deposition that she was not hurting that day or eveningbut hurt the next morning (pg. 69). She went to Charlton Methodist Medical Center on08-20-12 and was evaluated there by Dr. Hanson with a chief complaint of back pain. Shecomplained of gradual onset of symptoms after a low speed accident 2 days before. Hersymptoms were an aching quality. She had no headache. On exam, her cervical spine(neck) was nontender and there was no midline lumbar tenderness but she had lumbarparaspinous tenderness and pain on movement. She had a negative straight leg raise. Herneurological exam was normal and she ambulated without difficulty. There was no pointtenderness over the T12 area where the lumbar radiographs had shown a T12compression fracture. There were no other x-ray abnormalities. She was diagnosed withacute back pain, lumbar sprain and compression fracture. She was prescribed Norco,narcotic pain medication quantity #8 and Flexeril, a muscle relaxant #30 and Naproxen#20, She was to follow-up with her physician. Apparently 2 weeks later Ms, Thomas presented to Dr. Newsome (DC) at DesotoSpine Center by attorney referral (Thomas depo pg. 72). She complained of back stiffnessand pain with radiation to her shoulders and low back pain that radiated to both hips.There was no forwarded detailed quantified neck or back range of motion nor a detailedinitial neurological exam but on the final examination report for October 14, 2010 thereflexes and sensation were normal. There were multiple eponym tests reported. Dr.Newsome proposed passive treatment for her neck and low back including chiropracticThomas 4manipulation. There were no radiographs taken! There was no discussion of her T12fracture. She had 16 sessions of “treatment” with Dr. Newsome from 09-02-10 through12-15-10. Please note that she had been released by Dr. Newsome on 10-11-10. Ms.Thomas signed a release form that stated she had achieved her pre MVA status and thatall further expenses incurred after 10-11-10 would be only her responsibility. There was a 5 week hiatus in her care, but she returned on 11-18-10 and reportedher pain came back “after some weeks of set backs with her health.” Ms. Thomasreported neck and low back pain. On exam, she had “somewhat restricted” active andpassive range of motion (ROM) of her neck and low back. MRIs were ordered. On 11-18-10, the cervical and lumbar spine MRIs were completed at Mid CitiesImaging and interpreted by Dr. Cheatham (interpretation fee $500 each study). Dr.Cheatham interpreted the cervical MRI to show normal lordosis. There was a reported 2-3mm left paracentral disc substance protrusion/herniation that may contact only theanterior spinal cord surface but no stenosis. The other disc levels were normal. The lumbar MRI also interpreted by Dr. Cheatham showed no fracture. The disespaces from T12 through L4-5 were essentially normal. The L5-S1 disc level had areported 2-3 mm broad based posterior central disc protrusion/herniation per Dr.Cheatham that contacts and minimally indents the thecal sac. (Reviewer comment: thiswould be a normal MRI for a 46 year old person). Dr. Newsome on 12-15-10 stated Ms. Thomas had reached Maximum MedicalImprovement at his office and that she was being referred to Texas Sports Medicine forcare. Per Ms. Thomas her lawyers referred her to Dr. Richard Levy( M. D.( (depo pg.79,80).Thomas 5 Dr. Richard Levy (MD), orthopedic surgeon of Orthopedic & Spine Specialists ofTexas, evaluated Ms. Thomas on 01-28-11. He reported her 08-18-10 accident and thatshe had her head turned to the right. (Per her depo pg. 55, she was looking at her mileage(odometer) at time of the impact. Dr. Levy noted she had been told she might have had aspine fracture, She had had chiropractic treatment for a few months but did not improve(Reviewer comment: See10-11-10 chiropractic release). He also reported she hadreceived medications from the emergency department and her physician, Dr. Weatherly(no records from Dr. Weatherly to validate this). Dr. Levy noted her significant pastmedical history for anemia, asthma, heart disease, stroke, peptic ulcer disease, refluxesophagitis, diverticulitis, hepatitis and hyperlipidemia. He reported her medications to beCoumadin, a blood thinner; statins for her increased cholesterol and vitamins. He did notreport any anti-depressant medication or that she had depression and anxiety (depo pg 41,42), In fact on her review of symptoms, Dr. Levy stated there was no report of depression,anxiety or unusual stress! On exam Dr. Levy reported she had no mood or affectdisturbance. Her neurological exam was normal for reflexes, motor strength andsensation. She had normal gait and balance. Ms. Thomas had reported tenderness topalpation of the neck and low back with decreased range of motion. Dr. Levy reported shehad no reproduction of neck symptoms with hyperextension, side bending or cervicalrotation. (Reviewer comment: please recall that Ms. Thomas said she could not turn herhead when she represented to Dr. Levy (depo pg 81). Dr. Levy diagnosed: 1) cervical discsyndrome and 2) lumbar disc syndrome, lumbar spine. He prescribed an anti-inflammatory, Celebrex 200 mg for 7-10 days. There was no mention of any prescriptionor recommended use of any stomach protectiom even though she was on a blood thinnerThomas 6(anti-coagulant), Warfarin (Coumadin). He ordered 12 sessions of therapy to be done athis facility. He proposed possible injections but did not mention any review of her MRIs.He also did not order any radiographs. He billed $1000 for this initial visits. Ms. Thomas had 10 sessions of formal therapy billed to Orthopedic & SpineSpecialists. Dr. Levy did a follow-up visit on 03-11-11. The office note is terse again notingher normal neurological exam but residual decreased range of motion (never reallyquantified). He refilled her Celebrex prescription and proposed another eight therapysessions, She was to follow-up on 04-22-10. On 04-29-10, Dr. Levy reported decreased symptoms but still with daily pain.Despite a normal neurological exam, Dr. Levy proposed that she was likely to requireinjections in the future to include 3 lumbar epidural steroid injections (ESIs) and 3cervical ESIs. (Reviewer comment: the basis for this is not explained nor is it remotelyconsistent with evidence based medicine). On 07-27-12, Dr. Levy reassessed Ms. Thomas and reported she had completedphysical therapy and “decided not to pursue injection care.” (Reviewer comment: thiswould suggest Dr. Levy had currently proposed injection care to her). Ms. Thomasallegedly had 80% of her usual lumbar range of motion and 90% of her cervical range ofmotion with cervical spine tenderness. (Reviewer comment: please recall on her 06-06-12deposition, Ms. Thomas reported her neck was normal after April 2011 depo pg. 99). Dr. Melvin Manning, M. D., a colleague of Dr. Levy, evaluated Ms. Thomas on 8-30-13, and reported she had lower extremity pain with altered sensation.Thomas 7 On 9-13-13 Dr. Manning performed a transforamincal ESI at L5-Si bilaterallyand billed $8840. There was no further care documented for Ms. Thomas after the 04-29-11 officevisit except for her 07-27-12 visit to Dr. Levy after her deposition!), plus the 2013 visitswith Dr. Manning. I will now proceed to address several issues. The first issue is the injury incurred in the 08-18-10 accident. Based on thefollowing facts: 1 Ms. Thomas did not report any injury at the time of the MVA; 2 The vehicle pictures and damage estimate of about $2100 document a minor accident; Ms. Thomas did not seek any care until 08-20-10, or 2 days after the accident; She reported to the Charlton Methodist emergency department that she had back pain. Her neck was non-tender and the low back was non-tender in the midline. She had a negative straight leg raise and no neurologic deficits. She walked without difficulty; She only had lumbar x-rays taken at the emergency department. none were taken for the cervical spine; She had no point tenderness over the T12 vertebrae/spinous process; She did not go see her PCP after the emergency department visit as instructed; She went to a chiropractor per her attorney referral for treatment waiting about 2 weeks after the emergency department evaluation;Thomas 8 She had been released to her pre-accident status as of 10-11-10 by her own admission on the release paperwork after completing 11 sessions of chiropractic care; 10. No one ever took plain films of her neck; 11 Ms. Thomas had a normal neurological exam; 12 Ms. Thomas cervical spine MRI showed normal lordosis and no nerve root or cord pressure; 13 Ms. Thomas’ lumbar MRI showed a L5-S1 central disc abnormality without nerve root compression otherwise the study was normal without bone or ligament injury; 14 There was over a year hiatus in her care after the 7-27-12 office visit with Dr. Levy until she was evaluated by Dr. Manning. 15. There were no prescription pain or muscle relaxant medications ordered after the emergency department assessment and prescription of 8 hydrocodone tablets. Therefore, I conclude that Ms. Thomas had a self-limited strain/sprain or her low back as related.Her neck pain was not documented until 09-02-10. There is limited support for any neckinjury as outlined above. Moreover, the cervical MRI showed normal lordosis despite thereported/alleged tenderness and spasm. There was definitely no T12 fracture as related. Her alleged lack of recognition ofsymptoms with her prior T12 spine fracture yet severe symptoms after a minor MVA isinexplicable. Moreover, her lack of injury in her prior MVAs including a rolloveraccident in which her car was totaled is a glaring contrast to the current MVA scenario.Thomas $9 The next issue is the care that would have been medically necessary as related tothe 08-18-10 accident. The care that in my opinion would have been medically necessarywould include: 1 The evaluation and treatment at Charlton Methodist including the lumbar radiographs and medication; A 10 session course of exercise based formal therapy with graduation to a home exercise program by the completion of the 10 sessions; Prescription medications of an analgesic and muscle relaxant for 4 weeks with transition to an over the counter regimen at that time; Possibly a lumbar MRI if her symptoms persisted after the formal therapy but this MRI necessity would not be fully supported by evidence based medicine. There was no medical necessity for the following: 1 Chiropractic care past 10-11-10; 2. Any cervical spine care ~ please recall there were no cervical spine films ever taken; The evaluations and care with Dr. Levy or his therapy center. Any evaluation or treatment including the $8840 fee for her lumbar ESI on 9-13-13. The next issue is the reimbursem*nt that would be appropriate for the carereceived. Obviously for the care that was not medically necessary, no reimbursem*ntwould be warranted. For those services that were allowed as related, the reimbursem*ntshould be at her Medicare and supplement fee schedule.Thomas 10 The billings were significantly inflated. For example, Dr. Levy’s initial evaluationwas billed $1000 and the terse follow-up visits at $222 each. Dr. Cheatham charged $500for reading each MRI. A realistic reimbursem*nt would be less than $100 for theinterpretation of each MRI study. The next issue is the future care that would be medically necessary as related tothe 08-18-10 accident. Within reasonable medical probability, there is no physiologicbasis for any further formal care for the 08-18-10 accident. Please recall she has a normalneurological exam, no fractures and essentially normal MRIs for her age. She has notbeen on any prescription medications since 2011 for her “accident.” There was and isabsolutely no evidence based medicine support for any proposed epidural steroidinjections. Moreover these injections may actually cause her harm given her need forprescription blood thinner for her heart and post stroke issues let alone her liverdysfunction.COMMENTS: There are multiple inconsistencies noted in her records including her neckposition at the time of the accident, her symptom onset, the presence of neck symptoms,her lack of knowledge of a T12 spine fracture, her agreement of attaining her pre-accidentstatus as of 10-11-10 and then allegedly she did not understand the form she was signingper her deposition page 74,75. The analysis by the Crash Engineer, Mr. Rangel, clearlypoints out the minor nature of the 8-18-10 accident based on the physics involved.Personal review of her imaging studies would provide this reviewer further insight intothe study quality and reported findings.REF: Official Disability Guidelines TWC low backThomas 11I appreciate the opportunity to review Ms. Thomas’ records. My determinations arebased solely on the medical records provided. If other records are or become available,they may or may not alter the opinions provided. Please do not hesitate to contact me if Ican be of further help. This report does not constitute per se a recommendation forspecific claims or administrative functions to be made or enforced, or for a specificcourse of action to be taken by a third party. Medicine is both an art and a science andalthough the individual may appear to be fit to participate in various types of activities,there is no guarantee that the individual will not be re-injured, or suffer additional injuryas aresult of participating in certain types of activities.Sincerely,Ibs ea fapMarvin Van Hal, M.D., Orthopaedic SurgeonDiplomate American Board of Orthopaedic SurgeryFellowship Trained in Spine Surgery and Foot and Ankle SurgeryTexas License #: H9171MARVIN E. VAN HAL, M.D. ORTHOPAEDIC SURGERY P. O. Box 92778 Southlake, Texas 76092 February 16, 2014Attorney Janet K. ColaneriThe Colaneri Firm, P.C.1161 W. Corporate Drive, Suite 101Arlington, Texas 76006Phone: (817) 640-1588Fax: (817) 640-1680 RE: Cause No. DC-13-00003; Tara Odessa Patrick and Lora Thomas vs. State Farm Mutual Automobile Insurance CompanyDear Attorney Colaneri, Ihave reviewed the forwarded records regarding Ms. Tara Patrick, which includedthe following records: Service King’s Repair Estimate; Photographs (black and white); Tara Patrick’s Responses to Interrogatories; Tara Patrick and Lora Thomas’ Second Supplemental Rule 194 Disclosures; Tara Patrick’s First Supplemental Answers to Interrogatories; Tara Patrick’s Responses to Production; Tara Patrick’s Deposition in lawsuit against State Farm; Records concerning Tara Patrick Progressive Insurance Company; Texas Health Presbyterian Hospital of Plano; Texas Back Institute; Allstate Insurance Company; Mid-Cities Imaging; Desoto Spine Center; Orthopedic & Spine Specialists; Texas Health Care; Internal Medicine Associates of Plano; Methodist Dallas Medical Center; Ingenix; = DEFENDA\Patrick 2 1 Pedro Nosnik/Head & Spine Institute of Texas 9. Dr. Crane’s Report and Affidavits 10. Mr. Rangel’s Crash Engineer’s October 2013 ReportIhave not talked to or examined Ms. Patrick, but would be willing to do so if that can bearranged. I will address several issues after a short synopsis of these forwarded records. Ms. Tara Patrick was the 31 year old restrained front seat passenger in the 2006Lincoln Town Car driver by Ms. Lora Thomas which was rearended at a stop sign in aprivate street. There was no loss of consciousness nor ambulance arrival or transport. Ms.Patrick stated in her deposition (pg 47) that she noted a bump, jolt with the rearendimpact. She did not strike anything in the car (depo pg 49). A police office apparentlystopped by the accident scene by chance but did not write up a report. Ms. Patrick andthe Thomas’ after the accident proceeded to go shopping for shoes. The damage estimateto the Lincoln TownCar was $2702 ( $2100 per Ms. Thomas’ depo) while the pickupdamage was less than $600. Ms, Patrick had already been under care for her low back atTexas Health Presbyterian Hospital of Plano on 06-14-10 when she presented there to theemergency department. She reported on 6-14-10 that she was having shooting paindown into her left buttock and leg worse when she sat down. She had tried Flexerilwithout relief, She was diagnosed with sciatica and was prescribed hydrocodone 7.5/500(#20); a NSAID ibuprofen as well as a steroid medication, Prednisone 20 mg tapereddosage. She was given information sheets for lumbar radiculopathy and sciatica. On 07-09-10, Ms. Patrick was evaluated by Dr. Bosita (MD), a spine surgeon, atTexas Back Institute (TBI) for a 2 month history of low back pain. On exam, she had apositive straight leg raise for reproduction of low back pain and left thigh pain. Dr. Bositadiagnosed Ms. Patrick to have: 1) lumbar radicular syndrome ( ICD-9 code: 724.4 ), andPatrick 32) lumbar facet syndrome. He ordered physical therapy and then a lumbar MRI. She didreport a prior rearend MVA in August 2004. On 8-11-10 Ms. Patrick had a lumbar MRI completed at Texas Health Center forDiagnostics & Surgery and interpreted by Dr. Diebner, M. D., to show a 4-5 mm L5-S1broad-based disc protrusion with impression on the thecal sac. There was no central canalor neuroforamen stenosis. On 8-13-10 Dr. Bosita reassessed Ms. Patrick and noted her low back pain toboth lower extremities and left knee. There was also neck pain noted on her paindiagram. On her questionnaire she reported her sex life was nearly absent because ofpain. Dr. Bosita proposed facet injections to be done bilaterally at L4-5 and LS-S1. On 8-20-10 Ms. Patrick had the bilateral L4-5 andL5-S1 facet injections done byDr. Bosita. Her post procedure pain log noted she had been ina MVA on 8-18-10 withreported paresthesias in her lower body and right forearm and fingers. There was noindication that she was further assessed on 8-20-10 regarding the 8-18-10 accident or thatit was mentioned pre-procedure. On 8-27-19 Dr. Bosita reported that Ms. Patrick had improvement with the rightside injections but there was continued low back pain and left leg symptoms. Dr. Bositareported 4/5 weakness of the left lower extremity and proposed a lumbar ESI. On 09-03-10, Dr. Bosita performed a caudal ESI on Ms. Patrick at Texas HealthCenter for Diagnostics & Surgery. The pre and post operative diagnosis was L5-S1herniated nucleus pulposus.Patrick 4 On 09-10-10, Ms. Patrick reported low back pain to the left lower extremity. Dr.Bosita reported 5/5 strength of the left gastrocnemius (S1 innervated) but 4/5 strength ofthe left extensor hallucis longus and anterior ‘ibialis. On 09-30-10, Dr. Bosita proposed a L5-81 disc excision yet on exam, he notedshe had normal bilateral strength 5/5 of the gastrocnemius, EHL, quadriceps andhamstring. On 10-06-10, Dr. Bosita performed a partial laminectomy of the left L5 and left$1 lamina but there was no disc excision done as there was no significant disc herniationfound. She had neuromonitoring performed by Dr. Nosnik and interpreted by Dr. Toler.There was no spine instrumentation placed or used! Postoperatively Ms. Patrick hadformal therapy for at least 12 sessions at TBI. Dr. Bosita released her to return to work in December 2010 but revised this to 4hours per day per Mr. Patrick’s apparent request. She resumed her regular duty inJanuary 2011. Per Ms. Patrick’s deposition, Dr. Bosita released her without restrictions ineither December 2010 or January 2011 (depo pg 71). She discontinued working for UHCwhen she began working for Superior Health Plan Medicaid. She has not returned to seeDr. Bosita after being released in January 2011 and has no appointments scheduled. Ms. Patrick did have multiple office visits with Dr. Brown (MD) per apparentPCP dating back to 01-22-09 when she sought care for complaints of fatigue and malaiseas well as dysmennorhea. Ms, Patrick had several visits for menstrual cramps in 2009 as well as generalhealth issues. She was noted to have bruxism in 2012 as well as continued dysmenorrhea.She denied dyspareunia on the 11-12-12 office visit.Patrick 5 She had a hysterectomy performed in March 2013. There were no further medical records forwarded for review but there was a crashanalysis report on 10-03-13 by engineer Michael Rangel. He noted the vehicle impactspeed at less than 4 miles per hour with a velocity change of less than 3 miles per hour.He stated this would be similar to a car backing into a curb stop at 1-2 miles per hour. I will now address several issues. The first issue is the nature of the injuries incurred by Ms. Patrick due to the08-18-10 rearend accident. Within reasonable medical probability this 08-18-10 incidentwould have resulted in at most a minor sprain/strain of the neck and low back. I base thisopinion on the following: a) The report by Ms. Patrick that she noted a bump (jolt) on impact but no immediate new pain. In fact, apparently all of the occupants of Ms. Thomas’ car told Mr. Hodges they were okay but Ms. Patrick had her prior low back pain; b) She did not seek any emergency department or urgent care facility treatment; ¢) She had a diagnosis of lumbar radiculopathy into her left lower extremity as well as facet syndrome prior to the 08-18-10 incident; 4) She had a 08-11-10 lumbar MRI that showed an alleged disc protrusion at LS-S1,; ¢) Shew as under care for her back — facet syndrome and lumbar radiculopathy with Dr. Bosita — already starting in July 2010;Patrick 6 She had been scheduled for interventional spine injections before the 08- 18-10 accident; 2) She and her “family” went shopping after the MVA; h) The crash engineer report of 10-03-13 noted a low impact speed of less than 4 miles per hour; i) The occupants of Ms. Thomas’ vehicle were restrained; D Dr. Bosita on his 10-06-10 spine surgery performed on Ms. Patrick did not find any significant disc herniation with nerve root entrapment; k) Evidence based medicine does not support that the 08-18-10 accident would have resulted in any new disc abnormalities on a MRI (Carragee et al “Does Minor Trauma Cause Serious Low Back Illness?” Spine 31 (25) 2942-2949, 2006. Also, Carragee, et.al., “Are First Time Episodies of Serious LBP Asssociated with new MRI Findings?” The Spine Journal 6 (2006) 624-635. ) Ms. Patrick has not sought further care with Dr. Bosita after she was released in early 2011 (see depo pg 70, 71). The next issue is the care that would have been medically necessary as related tothe 08-18-10 accident. Evidence based medicine would allow for an evaluation with herPCP or even Dr. Bosita. Please note though that Ms. Patrick’s MVA appears to have onlybeen casually mentioned on 08-18-10 and no evaluation regarding her alleged symptomsafter the 08-18-10 incident until 08-27-10! Use of up to 10 sessions of formal therapywith graduation to a home exercise program at the completion of therapy would beconsistent with evidence based medicine. Prescription of an analgesic and a musclePatrick 7relaxant for 3 weeks and a NSAID for 2 months with transition to an over the counterregimen at that time would be consistent with evidence based medicine. Please recall Ms.Patrick had already been prescribed a NSAID, hydrocodone as well as Flexeril (pleasesee 06-14-10 emergency department record). There was no medical necessity as related to the 08-18-10 accident for: a) The L4-5 and L5-S1 facet injections done on 08-20-10 as they had already been scheduled, pre MVA. b) The 09-03-10 lumbar ESI as there was no MRI evidence of any nerve root entrapment. Evidence based medicine does not support the use of an ESI without an objective radiculopathy; °) The 10-06-10 spine decompression at L5-S1, Please recall that Dr. Bosita did not find any significant L5-Si disc hermiation when he did the 10-06- 10 operation; 4) There was no need for neuromonitoring regardless of the need for L5-S1 laminectomy (decompression), The fees billed for the neuromonitoring are far in excess of even the operative decompression; e) The postoperative formal therapy. The next issue is the reasonableness of the fees billed for the services provided.For those services that were medically necessary and approved as related to the 08-18-10MVA then the reimbursem*nt should be at her carrier’s fee schedule or 125 percent of theMedicare Fee Schedule. For those services not deemed medically necessary as related, noreimbursem*nt would be warranted.Patrick 8 The next issue is the future care that would be medically necessary as related.Given the fact that she did not have any significant disc herniation found at the time ofher 10-06-10 surgery that needed a disc excision and that the 10-18-10 accident wouldnot have caused an objective change in her MRI findings then her need for future spinecare is unrelated to the 10-18-10 accident. Moreover, the crash engineer’s (Mr. Rangel’s)analysis would also support the minor nature of this 10-18-10 accident. Moreover, Ms.Patrick did not have any apparent need to followup with Dr. Bosita for her spine issuesafter December 2010!COMMENTS: There was reference in her deposition that her sexual dysfunction wasdirectly related to the 10-18-10 accident. Frankly, there is no MRI evidence for any nervedysfunction as related but moreover she was having menstrual issues including cramping,pain, dysmenorrheal etc. already clearly documented in 2009 and subsequently. Sheclearly delineated in her intake questionnaire on 08-13-10 that her sex life was nearlyabsent due to her pain.REF: 1. Carragee et. al. “Does Minor Trauma Cause Serious Low Back Illness?” Spine31 (25): 2942-2949, 2006. 2, Carvagee, et..al., “Are First Time Episodes of Serious LBP Associated with NewMRI Findings?” The Spine Journal 6 (2006) 624-635. 3. Official Disability Guidelines, Low Back Chapter Thank you for the opportunity to review Ms. Patrick’s records. I reserve the rightto amend and alter my report based on receipt of further records. I consider my report atthis time preliminary. Pending review of her lumbar MRI. Please do not hesitate toPatrick 9contact me if there are other issues to address or if there is need for clarificationregarding this report. This report does not constitute per se a recommendation for specific claims oradministrative functions to be made or enforced, or for a specific course of action to betaken by a third party.Sincerely,Marvin Van Hal, M.D., Orthopaedic SurgeonDiplomate American Board of Orthopaedic SurgeryFellowship Trained in Spine Surgery and Foot and Ankle SurgeryTexas License #: H9171License # H9171Current through 8/31/2011 CURRICULUM VITAE MARVIN E. VAN HAL, M.D. Current Office Address8865 Davis Blvd. SteA 2301 South Hampton Rd. Suite 800Keller, Texas 76248 Dallas, Texas 75224Phone: (817) 267-4492 Phone: (214) 333-9946Fax: (817) 267-2495 Fax: (214) 333-9911 Mailing Address 8865 Davis Blvd. Ste. A Keller, Texas 76248Prior OfficesSouthwest Orthopedic Institute 11-90 through 12-975920 Forest Park Rd, Suite 600Dallas, Texas 75235Phone: (214) 350-7500Col., Active Duty, USAF, Chairperson 9-70 through 114-90Dept. of Orthopedic Surgery/SGHTMalcolm Grow USAF Medical CenterAndrews AFB, MD 20331-5300Phone: (301) 981-6656Education1965-1969 B.S, Agronomy and Distributed Studies Jowa State University, Ames. lowa1969-1970 Special Studies (Metearology) Texas A&M, Bryan/College Station, Texas1974-1978 M.D., University of lowa College of Medicine lowa City, lowa Graduated: 5-13-78Post-Graduate Education7-41-78 through 6-30-83 Categorical Orthopedic Surgery Residency University of Wisconsin, Madison, Wisconsin8-41-87 through 10-31-88 Foot and Spine Feliowship University of Vermont, Burlington, Vermont DE AN T'S IT iF 43)Medical Licensure1979 State of Washington Board of Medical Examiners1990 Texas State Board of Medical ExaminersSpecialty Certification7-26-84 American Board of Orthopedic Surgery1-11-87 Fellow, American Academy of Orthopedic SurgeonsAcademic AppointmentsFebruary 1989 Assistant Professor, Department of Surgery, Uniformed Services University of Health Sciences, Bethesda, Maryland4991 to Present Chief, Orthopedic Spine Surgery Assistant Chief, Orthopedic Surgery VA Medical Center Dallas, Texas4994 to Present Clinical Assistant Professor Orthopedic Surgery UT Southwestern Medical School Dallas, TexasSociety Membershi1978 — Present . Christian Medical and Dental Society.1989 — Present Society of Military Orthopedic Surgeons 1985 — 1990 Society of Air Force Clinical Surgeons 4985 — 1987 Anchorage Orthopedic Society 1987 — Present American Academy of Orthopedic Surgeons 1991 - 1999 Texas Spine Society 1997 — Present Dallas County Medical Society 1997 — Present Texas Medical Association Honors and Awards 1969 Honors Program “Graduate with Distinction" lowa State University, Ames, lowa 4969 Graduating High Scholarship Student College of Agriculture towa State University, Ames, lowa 1969 Graduating High Scholarship Student College of Science and Humanities lowa State University, Ames, lowa 1969 Phi Kappa Phi Honor Society 1968 Gamma Sigma Delia Honor Sociaty 1970 Chi Epsilon Pi Meteorology Honor Society 1975 Bierring Award of Microbiology, College of Medicine University of lowa, lowa City, lowa i977 Alpha Omega Alpha1978 Lang High Scholarship Award, College of Medicine University of lowa, lowa City, lowa4978 High Scholarship Graduate, College of Medicine University of towa, lowa City, lowaHospital Affiliation:July 1983 — June 1987 Staff Physician, Department of Orthopedics USAF Hospital, Elmendorf AFB Anchorage, AlaskaNovember 1988 ~ November 1990 Chairperson, Dept. of Orthopedic Surgery Malcolm Grow USAF Medical Center Andrews AFB, MarylandNovember 1990 — Present Active Staff, Dept. of Orthopedic Surgery St. Paul Medical Center, Dallas, TexasApril 1991 —~ Present Consulting Physician, Ortho Surgery V.A. Medical Center, Dallas, TexasNovember 1997 — Present Assistant Chief of Orthopedic Surgery V.A. Medical Center, Dallas, TexasOctober 1991 — October 2002 Provisional Courtesy Medical Staff Department of Orthopedic Surgery Baylor Medical Center, Irving, TexasFebruary 1994 — Present Clinical Assistant Professor Orthopedic Surgery U.T. Southwestern Medical Schoo! Dallas, TexasFebruary 1994 — 1996 Associate/Provisional Staff Orthopedic Surgery Columbia HEB Hospital (Northeast Comm.) Bedford, TexasAugust 1984 — March 2004 Consulting Medical Staff, Orthopedic Dept. Parkland Memorial Hospital Dallas, Texas (ID# 10453)June 1995 — Present Courtesy Medical Staff/Provisional Orthopedic Surgery Department Baylor Medical Center at Grapevine Grapevine, TexasOctober 1995 — 2004 Courtesy Medical Staff/Provisional Orthopedic Surgery Department Trinity Medical Center Carrollton, TexasNovember 1997 — Present Courtesy Medical Staff/Provisional North Hills Hospital North Richtand Hills, TexasPublicationsA. Peer Review Journais Van Hai, ME, ef al: “Stress Fractures of the Great Toe Sesamoids" American Journal of Sports Medicine. 10:122-128, 1982 Krag, MH; Van Hal, ME; and Beynnon, BD: “Placement of Transpedicular Vertebral Screws Close to the Anterior Cortex; Description of Methods:” Soin! 14:879-883, 1989 George, DC: Krag, MH; Johnson, CC; Van Hal, ME: Haugh, LD: Grobler, Lu: “Hole Preparation Techniques for Transpedicular Screws: Effect on Pull Out Strength From Human Cadaveric Vertebrae, “Spine, 16:181-184, 1991,B. Papers Published in Conference Proceedings1 Van Hai, ME; Trevino, SG; Rockwell, MS; Alvarez, RG; “Partial Excision of the Great Toe Sesamoids, “Proc Amer Ortho Foot and Ankle Sosiety 5" Annual Meeting, Sun Valiey, ID August, 1989. Van Hal, ME "The Placement of Transpedicular Vertebral Screws Close to Anterior Vertebal Gortex: A Description of Methods, “ Proc Air Force Clinical Surgeons 17" Annual Meeting, San Antonio, Texas, April, 1989, Krag, MH: Van Hal, ME; Beynnon, BD: “Clinical Experience with the Vermont Spinal Fixator (VSF): Initial 46 Cases, “ Proc Society Military Orthopedic Surgeons 30" Annual Meeting, Williamsburg, VA., December 1988, Krag, MH: Van Hal, ME; Beynnon, BD: “Early Removal of Harrington Rod instrumentations after Rod-Long, Fuse-Short Treatment of Unstable Thoracolumbar Spinal Fractures,” Proc Society Military Orthopedic Surgeons 30" Annual Meeting, Williamsburg, VA., December 1988. Van Hal, ME; Keene, JS; Clancy, WG; Lang, T. “Stress Fractures of the Great Toe Sesamoids, “Proc American Society of Sports Medicine Annual Meeting, Las Vegas, NV., 1981. Van Hal, ME; “Chymopapain — An Alternative to Discectomy," Proc Society Military Orthopedic Surgeons 26" Annual meeting, San Diego, CA., November, 1984. :‘ -CRASH ENGINEER € T VEHICLE ACCIDENT RECONSTRUCTION CONSULTINGOctober 3, 2013Janet K. ColaneriThe Colaneri Firm, P.C.Brookside Office Park1161 W. Corporate Drive, Suite 101Arlington, Texas 76006 Cause No. DC-13-00003 Style: Tara Odessa Patrick and Lora Thomas v. State Farm Mutual Automobile Insurance Company 116* Judicial District Court of Dallas County Our File No. 10062Dear Ms. Colaneri,At your request, I have prepared a report of my preliminary findings regarding the analysis of a vehicle collision involving Mr.Timothy Hodges and Ms. Lora Thomas. Reportedly, on August 18, 2010, Mr. Timothy Hodges was operating a 2003 Ford F150(“Ford”), Texas license plate AA3 0276, within a private drive near Belt Line Road in DeSoto, Texas. There were two malepassengers within the Ford. Ms. Lora Thomas was operating a 2006 Lincoln Town Car (“Lincoln”), Texas license plateDV4CHZ, within the private drive ahead of the Ford. Ms. Tara Patrick was seated in the right-front passenger position and Mr.Thelman Thomas was seated in the rear of the Lincoln. The police arrived on scene, however there is no indication that areport was prepared in relation to the incident. According to the testimony of the drivers, the Lincoln was stopped and wasstruck in the rear by the front of the Ford.It has been requested that an evaluation of the collision be conducted to determine the impact speed and collision severity. Inarriving at my findings, I had the opportunity to review the materials that are listed in the References section. My educationand professional background are outlined in the attached curriculum vitae.Conclusions The right front of the Ford struck the left rear of the Lincoln. The front bumper of the Ford partially over-rode the rear bumper of the Lincoln. The Ford was traveling less than 4 miles per hour (mph) at the time of impact. The Lincoln experienced a forward-directed increase in velocity (Delta-V) of less than 3 mph. The force on the Lincoln was from the approximate 6 o'clock direction (rear to front), The kinematic response of the Lincoln due to the impact is similar in magnitude and direction to backing a vehicle into a parking lot curb stop at 1 to 2 mph, a common occurrence. e

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Since such motion is in response to failure to respond, there is no requirement to meet and confer prior to moving to deem the requests for admission admitted. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007), 148 Cal.App.4th 390, 411.) By failing to timely respond, the party to whom the requests are directed waives any objection to the requests, including one based on privilege or work product. (Code Civ. Pro. § 2033.280, subd. (a).) B. Interrogatories A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling response to the discovery. (Code Civ. Proc. § 2030.290, subd. (b).) Once compelled to respond, the party waives the right to make any objections, including ones based on privilege or work-product protection. (Code Civ. Proc. § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§ 2024.020, subd. (a), 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (See Code Civ. Proc. § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) C. Requests for Production A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc. § 2031.260, subd. (a).) If a party to whom requests for production of documents is directed does not provide timely responses, the requesting party may move for an order compelling response to the discovery. (Code Civ. Proc. § 2031.300, subd. (c).) The party also waives the right to make any objections, including ones based on privilege or work-product protection. (Code Civ. Proc. § 2031.300, subd. (a).) There is no time limit for a motion to compel responses to production of documents other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc. §§ 2024.020, subd. (a), 2031.300.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) D. Monetary Sanctions Code of Civil Procedure, section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorneys fees, incurred by anyone because of that conduct. Misuse of discovery includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc. § 2023.010, subd. (d)). Courts are obligated to impose monetary sanctions in cases where a failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc. § 2023.010, subd. (d).) Sanctions are calculated based on reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Ibid. § 2023.030, subd. (a)). Furthermore, sections 2030.290 and 2031.300 authorize the Court to impose monetary sanctions if a party fails to respond to interrogatories and requests for production. III. ANALYSIS On April 22, 2024, Plaintiff served Defendant with Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Admission (Set One), and Requests for Production of Documents (Set One). (Brito Decl. ¶ 3, Exs. A-D.) Responses were due by May 24, 2024. (Ibid.) Plaintiff did not receive any responses, thus, on May 31, 2024, Plaintiffs counsel reached out to defense counsel regarding the discovery requests. (Ibid. at ¶ 4, Ex. E, p. 1.) Defense counsel failed to respond to the May 31, 2024, communication. On June 12, 2024, Plaintiffs counsel once again reached out to defense counsel regarding the overdue responses and reminded him that Plaintiffs deposition, set for June 17, could not go forward without the discovery responses. (Ibid. at ¶ 5, Ex. E, p. 2.) Defense counsel refused to provide a certain date by which the responses would be provided. (Ibid. at ¶ 5, Ex. E, pp. 3-7.) As of the date of these discovery motions, Plaintiff has not received any responses to the Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Admission (Set One), and Requests for Production of Documents (Set One). (Ibid. at ¶ 6.) Moreover, Plaintiff requests monetary sanctions in the amount of $2,940 in attorneys fees and costs to be imposed against Defendant Soho and its counsel of record, as follows: 4 hours for preparation of the motions, 2 hours for review of the opposition, preparation of reply, and attendance at the hearing, at a billing rate of $450 per hour, and $240 in motion filing fees ($60 per motion). (Ibid. at ¶ 7.) On August 22, 2024, Defendants filed an Omnibus Opposition to the discovery motions. The Court notes that the Opposition was filed late in response to the motions set for hearing on August 26, 2024. Defense counsel states that Plaintiffs counsel was well-aware that he was managing the death of a relative while trying to compile the discovery responses. (Safarian Decl. ¶ 3, Ex. A.) While being informed that the responses were forthcoming, Plaintiffs counsel went ahead and filed 8 separate discovery motions, demonstrating counsels refusal to resolve the issue informally. (Ibid. at ¶¶ 3-5.) On July 11, 2024, Defendants served verified responses to all the discovery requests, without any objections; however, Plaintiffs counsel refuses to take the motions off the calendar. (Ibid. at ¶ 6, Exs. B-I.) Defendants request monetary sanctions in the amount of $5,100 as follows: attorneys fees at a billing rate of $850 per hour for 2 hours to prepare the opposition and 4 hours to attend the four separate hearings on the Motions. Pursuant to California Rules of Court, rule 3.1300, subdivision (d), the Court in its discretion considers the late-filed Opposition. However, to provide Plaintiff with an opportunity to respond to the Opposition, the Court continues the hearing on the discovery motions filed as to Defendant Soho. IV. CONCLUSION AND ORDER The hearings on the following Motions, filed by Plaintiff Claudia Beatriz Rivera, are CONTINUED to a date to be determined at the hearing scheduled for August 26, 2024 in Department P of the Pasadena Courthouse. Plaintiff is given an opportunity to respond to Defendants Opposition. No further papers may be filed. (1) Motion to Compel Responses to Form Interrogatories to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (2) Motion to Compel Responses to Special Interrogatories to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (3) Motion to Compel Responses and Documents Responsive to Requests for Production of Documents to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (4) Motion to Have Plaintiffs Requests for Admission (Set One) to Defendant Soho Express Business Services Inc. Deemed Admitted and Request for Monetary Sanctions. Dated: August 26, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT

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JOHN WALTER TEMPLE VS MALIYA ANISE SAANI, ET AL.

Aug 27, 2024 |24TRCV00291

Case Number: 24TRCV00291 Hearing Date: August 27, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B JOHN WALTER TEMPLE, Plaintiff, Case No.: 24TRCV00291 r/t 23TRCV01583 vs. [Tentative] RULING MALIYA ANISE SAANI, et al., Defendants. Hearing Date: August 27, 2024 Moving Parties: Defendant Maliya Anise Saani Responding Party: None Motion to Compel Responses to Form and Special Interrogatories (Set One) The Court considered the moving papers. No opposition was filed. RULING The motion is GRANTED. Plaintiff John Walter Temple is ordered to respond without objections to defendants Form Interrogatories, Set One and Special Interrogatories, Set One within twenty days. The Court orders that plaintiff and plaintiffs attorney of record Michael Kahn, Esq. pay a monetary sanction to defendant in the amount of $466.66 within thirty days. BACKGROUND On January 26, 2024, plaintiff John Walter Temple filed a complaint against Maliya Anise Saani and Bryan Barnes for motor vehicle negligence and negligence based on an incident that occurred on April 6, 2023, on the 405 northbound near N. Rosecrans, Hawthorne. On April 10, 2024, Bryan Barnes filed a cross-complaint for equitable indemnity, implied indemnity, comparative fault, and declaratory relief. On July 9, 2024 the case was deemed related to 23TRCV01583. LEGAL AUTHORITY If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §2030.290(b). The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906. DISCUSSION Defendant Maliya Anise Saani requests that the Court compel plaintiff John Walter Temple to respond to Form Interrogatories, Set One and Special Interrogatories, Set One. Defendant asserts that on March 25, 2024, defendant served written discovery requests on plaintiff. Responses were due by April 26, 2024. On June 4, 2024, defense counsel sent a reminder email to plaintiffs counsel. Plaintiffs counsel did not respond. On July 1, 2024, defense counsel sent another email to meet and confer for compliance and included copies of the served discovery requests. Plaintiffs counsel did not respond. To date, defense counsel has not received responses. There is no opposition. The Court finds that defendant properly served written discovery and plaintiff failed to timely serve responses, and thus have waived objections. Accordingly, the motion is GRANTED. Sanctions Under CCP § 2023.030(a), [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. Under CCP § 2023.010, an example of the misuse of the discovery process is (d) Failing to respond or to submit to an authorized method of discovery. Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. CCP §§ 2030.290(c), 2031.300(c). Cal. Rules of Court, Rule 3.1348(a) states: The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. Defendant requests $466.66 in sanctions against plaintiff and their attorney Michael Kahn, Esq. The Court finds that the requested amount is a reasonable amount to be imposed against plaintiff and plaintiffs attorney of record. ORDER The motion is GRANTED. Plaintiff John Walter Temple is ordered to respond without objections to defendants Form Interrogatories, Set One and Special Interrogatories, Set One within twenty days. The Court orders that plaintiff and plaintiffs attorney of record Michael Kahn, Esq. pay a monetary sanction to defendant in the amount of $466.66 within thirty days. Defendant is ordered to give notice of this ruling.

Ruling

KRYSTAL RENEE CASTRO, ET AL. VS THOMAZ PHILLIP COUSSEAU, ET AL.

Aug 27, 2024 |Renee C. Reyna |21STCV31342

Case Number: 21STCV31342 Hearing Date: August 27, 2024 Dept: 29 Castro v. Cousseau 21STCV31342 Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Albert Abkarian & Associates. Background On August 24, 2021, Krystal Renee Castro, Victor Andres Avila, Brisstelle Avila, and Viktor Amias Avila filed a complaint against Thomaz Phillip Cousseau, Nissan North America Inc., and Rebecca Diane Mullin (collectively Defendants) for negligence cause of action arising out of an automobile collision on July 18, 2020. On October 26, 2021, Defendants filed an answer. In June 2023, the Court granted the petition for approval of minors compromises in this case. An OSC re proof of deposit was set and continued several times; in the interim, it appears that counsel has been unable to communicate with the client (guardian ad litem). On June 20, 2024, Albert Abkarian & Associates (Counsel) filed a motion to be relieved as counsel for Plaintiff Krystal Renee Castro (Plaintiff). No opposition has been filed. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.136(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) Discussion Counsel has filed the Notice, Declaration, and Order to be Relieved as Counsel. However, Counsel fails to include all future hearings, including the OSC re Proof of Deposit set for September 25, 2024, on both the Declaration and Order. Moreover, the Court has the following additional concerns: (1) a guardian ad litem cannot represent a minor without counsel, and granting the motion could leave the case in an uncertain state; and (2) it is unclear to the Court whether the settlement funds have been paid and, if so, whether they have been deposited into a blocked account as ordered. Accordingly, the motion is DENIED without prejudice. Conclusion The motion to be relieved as counsel is DENIED without prejudice. Moving counsel to give notice.

Ruling

SMITH vs THE INN AT DEEP CANYON

Aug 29, 2024 |CVPS2204678

SMITH vs THE INN AT DEEP Demurrer on Complaint by THE INN AT DEEPCVPS2204678CANYON CANYON, ARNOLD KIRSCHENBAUMTentative Ruling: Sustained.Plaintiff granted leave to amend within 10 days of this order becoming final.Moving party to provide notice pursuant to CCP 1019.5.This is a personal injury action brought by Plaintiffs Paul Smith and Jasmine Smith (collectively“Plaintiffs”) against Defendants the Inn at Deep Canyon (“Deep Canyon”) and individual ArnoldKirschenbaum (collectively “Defendants”). Plaintiffs allege they stayed at Deep Canyon, located at74470 Abronia Trial, Palm Desert, California, from December 20-24, 2020. During their stay, Plaintiffsallege they sustained injuries as a result of bedbug bites.Plaintiffs’ complaint brings causes of action for the following: (1) battery; (2) negligence; (3) intentionalinfliction of emotional distress; (4) fraudulent concealment; (5) private nuisance; and (6) public nuisance.Now, Defendants demurrer as follows: Plaintiffs’ third and fifth causes of action fail to state factssufficient to constitute a cause of action (CCP § 430.10(e)), are both uncertain (CCP § 430.10(f), anddo not provide notice of grounds for liability in violation of California Rule of Court 2.112. Defendantsargue that the complaint’s third cause of action does not allege “extreme and outrageous” conductbecause Plaintiffs have only shown an omission, not an act. They also argue the third cause of actionfails because there is no allegation of severe emotional distress past their initial injuries in 2020.Defendants argue that the fifth cause of action fails as there cannot be an action for private nuisancewithout harm to a property intertest.In opposition, Plaintiffs generally argue their claims were pleaded correctly with citations to thecomplaint.DemurrerThe function of a demurrer is to test the legal sufficiency of a pleading, but not the truthfulness of theallegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrerproceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.3rd Cause of Action – Intentional Infliction of Emotional DistressA cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageousconduct with the intent of causing, or reckless disregard of the probability of causing, emotional distress;(2) suffering of severe or extreme emotional distress; and (3) actual and proximate cause resulting fromthe conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51). “A defendant’s conduct is ‘outrageous’when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at1050 [quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001] [internal quotationmarks omitted]). In order to avoid a demurrer, the plaintiff must allege with “great specificity” the actswhich he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilizedcommunity. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819,832.) It is not enough that a defendant’s conduct be intentional and outrageous; the conduct must alsobe directed to the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware. (Potter,supra, 6 Cal.4th at 1002 [quoting Christensen v. Superior Court (1991) 54 Cal.3d 868, 903].)Here, the complaint is deficient as it fails to allege specific facts to meet this heightened pleadingstandard. While experiencing a bedbug infestation is outrageous itself, the complaint does not allegeany extreme or outrageous conduct directed at Plaintiffs specifically to support a claim for intentionalinflection of emotional distress. Importantly, a court is not required to accept blindly as true theconclusory allegation that a defendant’s conduct was extreme and outrageous; rather, it may decide itdoes not suffice as a matter of law. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235; Moncada v.West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 781; McClintock v. West (2013) 219 Cal.App.4th540, 556; Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.) Thus, the allegationsthat Defendants had prior knowledge of the infestation and failed to address same is not sufficientwithout any conduct specifically aimed at Plaintiffs. (Complaint, ¶¶ 27-28, 30, 83, 84.)Defendants also argue that the complaint is deficient in alleging extreme emotional injuries, but thereare sufficient allegations in that regard. (Complaint, ¶¶ 27, 29, 83, 90.)The general demurrer to Plaintiffs’ 3rd cause of action is sustained with leave to amend. SUSTAINED.5th Cause of Action – Private NuisanceElements of an action for private nuisance are: (1) an interference with the use and enjoyment ofproperty; (2) that causes substantial actual damage; (3) and is of such a nature, duration, or amount asto constitute unreasonable interference with the use and enjoyment of the land. (Mendez v. RanchoValencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.) That interference must be with“plaintiff’s use and enjoyment of his or her property.” (Chase v. Wizmann (2021) 71 Cal.App.5th 244,253; emphasis added.)Here, Plaintiffs were hotel guests. They do not have an ownership interest in the room they rented fora few nights. Plaintiffs do not offer any case law to support the argument that renting a “dwelling unit –the Subject Hotel room” (Plaintiffs’ Opposition at p. 11, lines 20-21) would satisfy the first element of anaction for private nuisance.Regarding leave to amend, the plaintiff has the burden to show a reasonable possibility of curing thedefect in the complaint by amendment. (Heritage Pacific Financial, LLC v. Monroy (2013) 215Cal.App.4th 972, 994.)The general demurrer to Plaintiffs’ 5th cause of action will be sustained with leave to amend.SUSTAINED.

Ruling

MARIBEL ARREOLA-GONZALEZ, AN INDIVIDUAL, ET AL. VS AHMC SAN GABRIEL VALLEY MEDICAL CENTER LP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.

Aug 26, 2024 |23AHCV01453

Case Number: 23AHCV01453 Hearing Date: August 26, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT MARIBEL ARREOLA-GONZALEZ, et al., Plaintiff(s), vs. AHMC SAN GABRIEL VALLEY MEDICAL CENTER LP, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23AHCV01453 [TENTATIVE] ORDER RE: DEFENDANT LI CUI, M.D.S DEMURRER TO PLAINTIFFS COMPLAINT Dept. 3 8:30 a.m. August 26, 2024 I. INTRODUCTION On June 26, 2023, plaintiffs Maribel Arreola-Gonzalez (Plaintiff), Saul Gonzalez Arreola, and Eva Gonzalez Arreola filed this wrongful death and survival action arising from medical treatment provided to Jorge Gonzalez (Decedent) by defendants AHMC San Gabriel Valley Medical Center LP, AHMC, Inc., Nham Nhat Pham, Alfredo Lee Chang, David Gu, Tommy Lu, and Li Cui. Plaintiff asserts an individual cause of action for negligent infliction of emotional distress (NIED) and alleges that [t]he rapid and grave deterioration of the Decedents health caused by Defendants carelessness and negligence in the emergency room on January 27, 2022, was witnessed by Plaintiff and was shocking to her. (Compl., ¶ 24.) On January 10, 2024, Li Cui, M.D. (Defendant) filed this demurrer to Plaintiffs third cause of action for NIED. Plaintiffs filed an opposition brief on April 16, 2024. Defendant filed a reply brief on August 1, 2024. II. LEGAL STANDARDS A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.] (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [the facts alleged in the pleading are deemed to be true, however improbable they may be].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) III. DISCUSSION The Court first addresses Defendants argument that Plaintiffs NIED claim is barred by Code of Civil Procedure section 340.5, which is the statute of limitations enacted as part of the Medical Injury Compensation Reform Act (MICRA). Under section 340.5, an action for injury or death against a health care provider based upon such persons alleged professional negligence must be brought within one year after the plaintiff discovers, or should have discovered, the injury or within 3 years after the date of injury, whichever occurs first. The term professional negligence encompasses actions in which the injury for which damages are sought is directly related to the professional services provided by the health care provider (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191) or directly related to a matter that is an ordinary and usual part of medical professional services (Id. at p. 193.) [C]ourts have broadly construed professional negligence to mean negligence occurring during the rendering of services for which the health care provider is licensed. (Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 406407 [holding that [a]n EMT's operation of an ambulance qualifies as professional negligence when the EMT is rendering services for which he or she is licensed or when a claim for damages is directly related to the provision of ambulance services by the EMT].) Defendant argues that the act or omission forming the basis of Plaintiffs NIED claim is alleged professional negligence. Therefore, Plaintiffs NIED claim is untimely because the alleged injury-producing event occurred on January 27, 2022, and the lawsuit was filed five months too late on June 26, 2023. In opposition, Plaintiff argues that the applicable statute of limitations is provided by Code of Civil Procedure section 335.1, which provides for a 2-year period to assert claims arising from personal injury. Plaintiff also argues that her NIED claim does not arise out of professional negligence because Defendant was not providing medical services to her. However, section 340.5 is not limited to injuries or death inflicted on a patient but can be applied to injuries suffered by a third parties due to the health providers professional negligence. (Arroyo v. Plosay (225 CalApp.4th 279, 298.) In fact, in Lopez v. American Medical Response West (2023) 89 Cal.App.5th 336, 347, the court of appeal found that section 340.5 applied to two plaintiffs claims against a paramedic who allegedly negligently operated an ambulance, even though only one of the plaintiffs was being transported as a patient. Here, Plaintiff alleges that she suffered emotional distress while witnessing Defendants negligent medical treatment of Decedent. Therefore, professional negligence forms the basis for Plaintiffs NIED claim and the one-year statute of limitations applies. Accordingly, Plaintiffs claim is time-barred because it was filed on June 26, 2023, which is one year and five months after Plaintiff allegedly experienced the emotional distress from witnessing the negligent care provided to Decedent on January 27, 2022. As Plaintiffs claim is untimely, the Court need not analyze whether she pleads sufficient facts to state a cause of action. IV. CONCLUSION Defendants demurrer to her Third Cause of Action for NIED is SUSTAINED. As Plaintiff does not show how her NIED claim can be amended to avoid the statute of limitations, the demurrer is sustained without leave to amend. Moving party to give notice. Dated this 26th day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Ruling

Stayer vs. A Plus Safety LLC, et al.

Aug 29, 2024 |23CV-0203556

STAYER VS. A PLUS SAFETY LLC, ET AL.Case Number: 23CV-0203556This matter is on calendar for review regarding status of the case. The Court notes that allComplaints and Cross-Complaints are at issue, with the exception of the most recently filed Cross-Complaint, filed by O’Reilly Auto Enterprises, LLC on August 9, 2024. However, all partiesnamed in that Cross-Complaint have previously appeared as Plaintiffs, Defendants, or Cross-Defendants in this action. The parties are ordered to appear to discuss status and trial setting.

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