Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 26
Page 27
Page 28
Page 29
Page 30
Page 31
Page 32
Page 33
Page 34
Page 35
Page 36
Page 37
Page 38
Page 39
Page 40
Page 41
Page 42
Page 43
Page 44
Page 45
Page 46
Page 47
Page 48
6 verdict Volume 1 2015 new members september november Acker Whipple Stephen Acker Arias Lockwood Joseph Arias Balestreri Potocki Holmes Matt Stohl Ballard Rosenberg Golper Savitt Jessica Gomez Eric W. Mueller Sponsoring Member Linda Miller Savitt Bingham McCutchen LLP Debra L. Fischer Sponsoring Member Linda Miller Savitt Birndorf Law Offices APC Deborah F. Birndorf Bonne Bridges Mueller OKeefe Nichols Mitzie L. Dobson Michael Ruocco Sponsoring Member Mitzie Dobson Bowman and Brooke LLP Jennifer N. Hinds Autumn E. Lewis Sponsoring Member Hannah Mohrman Boyce Schaeffer Mainieri LLP Laura L. Cota Briskin Latzanich Pene Katherine B. Pene Carroll Kelly Trotter Franzen McKenna Natalie J. Buccini Lauren E. Hardisty Joseph K. Jeffrey Alessa R. Jonas Michael T. Mertens Bradley Walkon Sponsoring Member Dave Pruett Carlson Law Group Inc. Mark Carlson City of Glendale City Attorneys Office Andrew Rawcliffe Sponsoring Member Ann Maurer Clasen Raffalow Rhoads Richard E. Raffalow Sponsoring Member Robert Clasen Creason Aarvig Maria K. Aarvig Daniels Fine Israel Schonbuch Lebovits Katherine Bruce Jonathan R. Gerber Hyo Jung Moon Sponsoring Member Michael Schonbuch Demler Armstrong Rowland Robert W. Armstrong Sponsoring Member Terry Rowland Doherty Catlow Christian X. Przybylowski Fernandez Lauby Graham J. Baldwin Sponsoring Member Edward Fernandez Greer Associates Jonathan Berger Sponsoring Member Storm Anderson Fagen Friedman Fulfrost LLP Kimberly Smith Ford Walker Haggerty Behar Jennie L. Kruempel Mark P. LaScola Mark S. Levine Lissa Tomich Kelly A. Ward Sponsoring Member William Woodland Gilbert Kelly Crowley Jennett Jennifer Calderon Jason C. Dineros Matthew S. Jones Melina Shahbazian Leon Victor Daniel C. Walsh Hayk Yeghoyan Sponsoring Member Jesse Marr Godes Preis LLP Joseph Preis Grant Genovese Baratta Michael Frey Sponsoring Member James Baratta Jeffrey P. Magwood Sponsoring Member Lance Orloff Greines Martin Stein Richland Timothy T. Coates Marc J. Poster Alison M. Turner Sponsoring Member Robert Olson Harrington Foxx Dubrow Canter Mark Norman Sponsoring Member Michael Jenkins Higgs Fletcher Mack Michael Campbell Hinshaw Culbertson LLP Wendy Wen Yun Chang Sponsoring Member John Sheller Horvitz Levy Scott Dixler John A. Taylor Jr. Sponsoring Member Steven Fleischman Hosp Gilbert Bergsten Caitlin Johnson David You Sponsoring Member Robert Bergsten Kring Chung LLP Kyle D. Kring Law Offices of Aaron B. Booth Colleen B. Dougherty Sponsoring Member Aaron Booth Law Offices of David J. Weiss Kirsten Johnson Jaime Verducci Law Offices of Dea Dea Mark T. Dea Law Offices of Mark E. Farrar Stephen Basinger Sponsoring Member Mark E. Farrar LaVerne College of Law Mary Campo Sponsoring Member Robert Bergsten Law Brandmeyer Packer Theodore H. OLeary LeBeau Thelen LLP Tara Haner Sponsoring Member Dennis Thelen Lewis Brisbois Bisgaard Smith David Samani Sponsoring Member Ken Feldman Lorber Greenfield Polito LLP Corinna Arbiter Loyola Law School Pinky Ghuman Manion Gaynor Manning LLP David Davidson McKinley Smith APC Timothy Smith Meyers McConnell Reisz Siderman Daniel Eisenberg Norton Melnik Sonali Olson Ogletree Deakins Nash Smoak Stewart Christian Hickersberger Sponsoring Member Carolyn Sieve Orland Law Group Jeffrey J. Olin Pacific Coast University Carol Gonzales Pettit Kohn Ingrassia Lutz Andrew Smith Poole Shaffery LLP John Shaffery Proskauer Rose LLP Laura Reathaford Sponsoring Member Steven Fleischman Ropers Majeski Kohn Bentley Kenneth M. Jones Jamie M. Kurtz Sponsoring Member Thomas Feher Ryan Datomi LLP Calen D. Weiss Sponsoring Member Richard J. Ryan Santa Monica City Attorneys Office Karen Duryea Schumann Rosenberg LLP Eric Arevalo Slaughter Reagan Cole LLP Clayton Graham Nicole Ramirez Sponsoring Member James B. Cole Small Henstridge Cabodi Pyles LLP Kim J. Cabodi Skane Wilcox LLP Wendy Wilcox Southwestern Law School Danielle Krauthamer Jonathan Waymire Sponsoring Member N. Denise Taylor Springel Fink LLP Johnny Delashaw Richard Kott Tarle Law P.C. Alison Kitchen Taylor Blessey LLP Arya Djafroudi Jeffrey M. Oberto Andrew Steinberg Sponsoring Member N. Denise Taylor Thompson Coe OMeara Stephen M. Caine Sponsoring Member Frances OMeara Thompson Colegate Charmaine E. Grant Sponsoring Member Gary Montgomery Ulich Ganion Balmuth Fisher Feld LLP David J. Byassee Sponsoring Member Chris Faenza Walker Mann LLP Jeffrey K. Keyes Sponsoring Member Jeffrey Walker Woodruff Spradlin Smart Anna R. Salusky Sponsoring Member Daniel Spradlin Yoka Smith LLP David H. Jones Sponsoring Member Walter Yoka Yukevich Cavanaugh Raymond Hua Volume 1 2015 verdict 7 Volume 1 2015 verdict 11 14 verdict Volume 1 2015 Gingrich had harsh words for the recent handling by the White House over Israeli Prime Minister Benjamin Netanyahus invitation from Speaker John Boehner to address the U.S. Congress. Gingrich blamed the White House for the resulting media frenzy and drew laughter when he said I dont quite know how Netanyahu hired the White House staff for the purpose of building interest in his speech. Had the President said Bibis coming to town why dont you drop by the White House and well have coffee before your speech it would have been a non-event. According to Gingrich who attended Netanyahus speech the speech helped consolidate the anti-Iranian nuclear agreement faction in the U.S. I think theres a very large block of people who are now committed to voting against an Iranian agreement. Regardless of the final vote Gingrich had no doubt that Israel would not risk another holocaust and would if necessary take on Iran alone. Its important to understand how serious this is he said adding that Israel has not wavered from its anti-Iranian position for decades. He recalled that in December 1994 a month before his term began as Speaker of the House Israeli Prime Minister Yitzhak Rabin asked to meet with Gingrich. His primary fear for the survival of Israel was Iran. He said they could handle the Palestinians but Iran was too big a country. He added I think theres a very real possibility that the Israelis will attack the Iranians if they have to. Under no circumstances will they accept an Iranian nuclear weapon. How Israel attacks Iran I dont think we know yet but I would not underestimate Israels ingenuity and the fact that theyve been working this problem for 20 years. Gingrich went on to touch on Irans growing involvement in Iraq by aiding the Shiites in attacks against Sunnis. The Iranians are deeper today in Iraq than at any time in modern history. And this is all going to be a mess and its going to get much worse. Turning to domestic politics Gingrich honed in on Hillary Clintons yet-to-be- announced bid for the White House amid the growing controversies surrounding her use of personal emails while Secretary of State and foreign money donations to the Clinton Foundation. If I were a Democrat right now Id be very worried because this is beginning to be a whats the next shoe or whats the next closest kind of problem. There are more things that are coming and its almost inevitable. So everyone thinks she is the inevitable nominee but Im here to tell you that nothing in American politics is inevitable. He moved to the Republicans and their current field of somewhere between eight and 20 serious candidates. He didnt hold back when sharing his observations of the Republican loss in the last election and drew laughter when talking about the debates. Our chairman last time thought we had too many debates but since I kept winning them I disagree vehemently. I tried pointing out to him Hillary and Barack Obama had 22 debates in 2008 and we had 23. So if the number of debates made a difference Obama wouldnt have been elected. He offered the advice that thinking that the best way to get ready for the Super Bowl is to avoid playing football is not very clever. If youve nominated somebody who youve protected from debates because you think theyre too stupid to debate well and you think that they look pretty and with enough money you can buy enough ads that theyll look good enough that they wont have to answer anything thats very dangerous. What I really believe in is forcing candidates out in the open where they have to function in real time. Gingrich expressed his belief that after eight years of Barak Obamas presidency the country will elect a Republican governor who brings experience running a state government. The last six years have proven that having a really articulate person with no experience is really a dangerous experiment in how you run the country. Gingrich did however give kudos to President Obamas campaign strategy calling it brilliant. He said The Obama campaign actually set out to beat Romney before Labor Day spending most of their advertising money by the end of the summer. He explained They spent October pursuing women who were not certain they were going to vote for Romney. They literally had a design that said Were going to come after him so hard and so early and spend so much money by the time you get to the actual discussion itll be over and well have already sealed off most of the country. And they came pretty close to that. He added The Obama campaign figured out early on that they could not convince people that the economy was good but they could convince them that it was George W. Bushs fault. In closing he said You are on the edge of an extraordinary revolution that will make us within a decade the most Newt Gingrich continued from page 13 continued on page 15 Volume 1 2015 verdict 17 continued on page 18 Almost daily another cyber-attack is in the news cycle. Whether its from hearing about the Sony Pictures debacle Targets compromised customer data or the troubling rise of ransomware most people are aware that information of any kind can be at risk. While law firms and lawyers are usually appropriately sensitive to exposure bad information can mean they often make misguided decisions on implementing the security needed to avoid that exposure. Law firms by nature have significant confidential information about clients whether they be businesses or individuals. Lawyers carefully guard against disclosure of this information to opponents in discovery but may not always be as careful about malicious access or even inadvertent disclosure outside the context of a litigated or transactional matter. Moreover law firms may overlook other confidential information they possess having nothing to do with clients such as firm personnels medical or financial information. Any unauthorized disclosure of information in the firms custody can give rise to liability and can be disruptive even if no one asserts a claim against the firm Vigorously protecting against disclosures of confidences in a firms possession can be seen as adversely affecting the day-to-day operation of the law firm. Unfortunately the primary source of security breaches is an individual in the firm who has access to the data and who Cyber Security in the Age of the Hack by Doug Hafford perhaps inadvertently sets the stage for a release of information. Increasingly however malicious activity from outside the firm plays a role in security breaches as well. More on this and ways to protect against breaches as we go on. But first lets look at what must be protected. Personal Information Have you ever had your credit card number compromised or received a new card in the mail unexpectedly Data like social security numbers tax IDs and credit card numbers are by far the biggest target for hackers. They dont care whether the personal information belongs to a client in discovery responses for example or belongs to a firm employee in personnel records. They just know that law firms have personal data and that data is valuable on the open market. Fishing expeditions for personal information are generally broad brush rather than targeting an individual. Generally speaking some simple steps can protect this information adequately as described below. Improving user habits more than any type of hardware or software security mechanism is the key to protecting this information Firms working with banking healthcare or insurance company clients have or will have additional security requirements often imposed by the client that specifically address this area Client Confidences Including Litigation or Transaction Work Product and Strategy Has your firm had an attorney or group leave the firm and later found out about massive amounts of documents e-mailed out of the firm Though protecting this type of information is difficult its also the least likely data to be compromised. This type of information is very difficult for a hacker to obtain with even a modicum of security. Almost all breaches of this type involve firm personnel. Personnel know where information is located Personnel may know the tools used to create and store the information Personnel can be careless about security in the interest of getting things done Developing trust is particularly important in dealing with the IT staff. 18 verdict Volume 1 2015 continued on page 19 They generally have full access to the system. IT staff know how to cover their tracks. The expedient of getting a user back to work can mean shortcuts on security that are never corrected. Ideally a firm will have more than one person on staff or outside the firm who is generally familiar with the system and what is being done on it so that red flags are spotted. Highly targeted attacks do occur although most include some inside help. This you can do something about. Firm System Information Have you ever seen an e-mail from a friend or colleague that was clearly spam sent using their e-mail and name All day every day virus programs troll the web for weak points in e-mail systems and servers. The worst attacks can shut down an e-mail system or cause a firm to lose the ability to e-mail one or more clients. This can have an immediate and detrimental effect on the firms reputation. These types of attacks can easily be prevented with normal and inexpensive measures. Mobile Traveling Devices Have you ever left your phone at a hotel or restaurant The most commonly lost and stolen items of concern are laptops tablets and phones. These devices often have firm data or quick links that dive into firm information. More often these are lost items rather than stolen items. Prompt notification protocols and response by the firm are crucial. Stolen items are rarely taken for the purpose of data mining. However protections must still be put into place. Break-ins Have you ever lost something within your own office and been unable to locate it Computer device theft is rampant. Computer goods are an attractive target for thieves because of their value and portability. A thief may have no interest in the data on the device but the firm will still have to react as though the data is being disclosed and exploited just to be safe. Most of these attacks are specifically for hardware and most are confined to new hardware in boxes. Servers and data storage devices are rarely stolen but it is not unheard of because they are generally in use and more often in locked areas that are more difficult to enter. Protection for the firm what do we do With the above threats and the as yet undiscovered modes of attack how can a firm reasonably deal with security while maintaining functionality Driving a Sherman Tank might make you safe from most common auto accidents but can you drive it in the car pool lane and park it at the store The answer does not lie in locking everything down so hard that users cannot work. Rather the answer lies in good quality security practices combined with high value security solutions. Perimeter Protection Step one in a quality security solution is to protect your perimeter. Smart firms are already doing a fair bit of perimeter protection.. Pre-filtering of e-mail. The primary vector for malicious attacks is e-mail particularly e-mail that invites the recipient to send confidences or unwittingly click on a link that downloads destructive software malware. More clever ways of invading your system are invented every day. Having your e-mail filtered before it reaches the firms perimeter is essential to protect users from unwisely opening and responding to messages that are not legitimate. This also has the valuable effect of removing common SPAM that Cyber Security continued from page 17 Volume 1 2015 verdict 19 continued on page 20 clutters users inboxes and poses a threat different from malicious attacks SPAM like e-mail hoarding can cause users to overlook real messages that require attention. Maintaining a quality business-class firewall. Most of these are now called UTM unified threat management devices This means they contain anti-malware protection intrusion detection and other types of protection. The firewall allows you to close off ports that might be used to exploit your system. Ports are access points that allow access to valuable traffic like e-mail or remote access. Each year the firewalls threat protection will need to be renewed. Every few years it will have to be replaced with a more current device. Special care must be taken to obtain a unit that allows sufficient bandwidth to accommodate your users internet usage needs. A hyper-fast 100mbps connection makes no difference if your firewall cant pass traffic at that speed. If the technical terms used above dont mean much to you sit down with the person in your firm charged with maintaining your computer system and ask for an explanation. If you arent comfortable with the explanation it may be time to dig a little deeper into the firms investment in information security. Endpoint Protection Some dangerous e-mail can get through the best firewall. A high quality anti-malware solution is the next layer in your security solution to protect your system if destructive software tries to inject itself onto your system. This prevents normal virus infections and can include protection against spyware which captures keystrokes and other activity on your system and conveys that information outside the firm to someone looking for passwords and other sensitive data and protection against adware which causes annoying popups and similar intrusion. Your business class anti-malware solution will include server protection and if you have internal e-mail server e-mail protection. Central management will insure that all endpoints are covered and that protection is up to date at all times. Informed Users and Firm Culture By far the best security steps you can take are in this area. Formal training in attorney meetings and staff meetings to show threats are presented and how safe practices can be implemented is relatively easy and of high value. Informed users managed protection and functional layers of security start with management the message must come from the top that security must not be bypassed. Senior partners must abide by the same rules that everyone else is expected follow without grumbling or otherwise undermining security policies set by firm administration. Portable Device Management Most firms allow users to have whatever cell phones tablets and laptops they want. This means the IT staff cannot reasonably be expected to ensure all devices are properly configured and are used safely. IT staff can and should periodically alert users to evolving threats useful diagnostic sites and cost-effective tools that should be downloaded for password protection data encryption lost device location and so forth. Firm should consider implementing a policy under which no device may locally story firm data users must access materials only through remote-access software more about this below so that a lost or stolen device never contains anything that should not be disclosed. Many firms require that portable devices used to communicate with the firm can be wiped remotely if the device is lost or stolen. The features built in to Microsofts latest releases of their Exchange e-mail system and Office 365 products answer most needs. Two common management tools are Good Technology and Mobile Iron. Both offer a plethora of tools to keep Cyber Security continued from page 18 20 verdict Volume 1 2015 your firms information safe as users work in a mobile connected world. Remote Access Though its nominally a part of Perimeter Protection the challenges offered are unique enough to merit its own section. Remote computing through companies like Terminal and Citrix is a must-have in todays legal world. But because of the nature of remote computing access to the firms files from outside the office it represents a major area of concern. Common solutions to this include devices that authenticate users beyond a simple username and password. While Citrix and Terminal services both offer excellent security features when properly implemented most security-conscious firms desire more hardened measures. Secure Remote Access SRA devices are relatively inexpensive and offer both additional authentication and encryption of data as it moves between the remote user and the system. Multi-factor authentication can be added so that a user must meet two or more criteria Something they carry such as a dongle that works with a random code generator. Something they are such as a thumbprint scanner. Something they know much like a bank where the user must enter some personal bit of information that only they would know. Geographic or IP restrictions can also be added so that users can connect only if the device including a home desk computer is in an expected location or using an expected network. Personal Information Leak Prevention A personal information PI leak could be disastrous for a law firm. Credit card information is less likely but social security numbers can often be stored by a human resources department or may be reflected in a legal transaction. This is of course the primary concern of banking clients as this would be seen as a breach of their system. The challenge is that we live in an electronic communication world. Most people have encountered a situation in which they sent or received critical personal information in an e-mail. And sometimes such e-mails are sent to the wrong person perhaps because of auto-complete features that fill in a recipients name or because of sloppy file naming conventions that promote accidentally attaching the wrong file. These types of mistakes are relatively common. What can be done The most common way of addressing this is to add a service to your e-mail system that scans for and detects PI leaks. Commonly used products include Symantec Message Security and the built in features of Microsoft Office 365. Message Security covers significant numbers of possible breaches but is also highly restrictive. Office 365 has fewer features for PI leak prevention but does have other values for the firm. Client Confidences This is probably the hardest to address because it can come in so many different forms. It could be tax returns research memoranda scanned images e-mails and many more. There is no reasonable way to insure this information is kept private beyond the good practices mentioned above and some security measures within your IT solution. Computer systems in general should ask users to give permissions rather than grant access by default and invite users Cyber Security continued from page 19 continued on page 21 Volume 1 2015 verdict 21 to restrict permissions. For example scrubbers on outgoing attachments can be set so that metadata is automatically cleaned unless the user checks a box otherwise. Access to client information should be limited to those that need it. While this is relatively easy to do from an IT perspective it also means significant intervention. Firm administration must decide whether partners really need access to everything on the system and whether those who only occasionally need to see billing or other administrative should be given unrestricted access. But if security is too tight users cannot easily accomplish their work. Even with highly restricted access a malicious user can cause problems for things they can access. A quality document management system is an excellent tool for cordoning off specific areas where firm files are stored so that access is tailored to those who need it. Examples include iManage Worldox or NetDocuments. These products automatically enforce security on a matter-by-matter basis which is also useful for ethical screens in conflicts situations. Document Management can also prevent leaks by restricting what can be done e.g. read only edit download etc. with any of these document types. Document Management focuses on creating a secure empowered user so you get both high value work tools and security. Rather than try to lock everything down an informed high-value staff member is your best bet. Going Too Far Though good security practices are important its sometimes easy for firms to go too far to protect their data. Notwithstanding client-enforced rules such as those mandated by healthcare banking or insurance clients significant restrictions on user access often result in two negative outcomes. Unhappy unproductive users. This is very common in overzealous secured environments. Users are asked to get work done on time and efficiently despite IT system rules and restrictions working directly against them. This is nothing if not frustrating. Users especially attorneys will find a way to work around a system like this. So now the firm is not only fighting its security concerns but also its own staff. What About the Cloud There are common misconceptions about the cloud that can cause concern. When we read about Target Sony and others we think That can happen to my firm To some degree Cyber Security continued from page 20 continued on page 22 24 verdict Volume 1 2015 Non-Retained Experts continued from page 23 Again a treating physician is not consulted for litigation purposes but learns of the plaintiffs injuries and medical history because of the underlying physician-patient relationship. Moreover as held in Kalaba v. Gray 2002 95 Cal.App.4th 1416 it is not enough to simply designate as experts all past or present examining andor treating physicians. The physician and his or her address must be specifically identified. Thus the case law is clear that a party who intends to call a treating physician as an expert for opinion testimony must identify that physician in the designation of experts. But if the party fails to do so may the physician still testify about nonexpert percipient testimony i.e. nonopinion testimony Probably yes. However there is very little if any published California case law that addresses whether a treating physician can testify as a non-expert percipient witness. An unpublished opinion handed down last year by the California Fourth Appellate District Division Two Riverside addressed this issue. In Soto v. Knight Transportation E056536 9182014 the court held that the trial court did not abuse its discretion in excluding experts as to whom plaintiff failed to serve a timely designation of expert witnesses. However the court further held a treating physician who was not identified as an expert should have been allowed to testify as a percipient non-expert witness but only as to the treating physicians observations within the physicians personal knowledge. Any opinion testimony derived from those observations or personally known facts is inadmissible. The Soto court based its decision on related California case law and persuasive federal decisions. Specifically the court analyzed a California medical malpractice case where a physician was permitted to testify regarding a hospitals policy and personal knowledge of that policy. Thus the Soto court permitted the treating physicians non-expert factual testimony observations treatment diagnoses prognoses and billing despite the failure to provide a timely expert designation. Because the decision is not published Soto is not citable as precedent in California trial or appellate courts but it offers some insight into how an appellate court may approach this issue. One point of interest in the opinion is that after finding error in excluding the physicians percipient non- expert testimony the court held that error was harmless and did not warrant reversal of the defense judgment on nonsuit. The lay witness testimony if admitted would have been insufficient to meet the plaintiffs burden of proving that his injuries were caused by the accident. In short Schreiber Kalaba and Soto make clear that if the injured party does not designate the individuals treating physician to testify at trial by listing the physician by name and address the physician cannot offer any opinions at trial. The physician may be able to testify as to observations within the physicians personal knowledge however the utility of that evidence is questionable and any opinion testimony derived from those observations or personally known facts is inadmissible. Another important decision limiting a treating physicians testimony is Dozier v. Shapiro 2011 199 Cal.App.4th 1509. There the court of appeal held that the trial court was justified in barring the plaintiffs treating physician from testifying on the issue of standard of care and then dismissing the entire medical malpractice action. The treating physician had testified at his deposition that he was unable to determine whether the defendant surgeons treatment fell below the standard of care. Further the plaintiffs counsel never informed defense counsel about the treating physicians post- deposition change in testimony. On appeal the plaintiff argued that the treating physician was not asked whether he had an opinion as to whether defendant complied with applicable standard of care. The court was not persuaded however because at deposition plaintiffs counsel objected to questioning on the grounds that the treating physician was not being deposed as an expert and the questions went beyond the care and treatment of plaintiff and into expert opinion. The treating physician also testified that he had not been retained as an expert and all his opinions were based on his treatment of plaintiff as well as experience and qualifications. Plaintiffs counsel further stated on the record that defendant could redepose the treating physician if he was later designated. One year after the deposition the treating physician was asked to be an expert witness and he then received the defendant surgeons medical records and deposition transcript. Plaintiff argued that it was not until this time that the treating physician was able to formulate an opinion as to whether defendants treatment met the standard of care. Plaintiff failed however to continued on page 25 Volume 1 2015 verdict 25 designate or identify the treating physician as a witness whose testimony would be offered as a retained expert on the standard of care issue. The court held that by failing to disclose the substance of the treating physicians anticipated opinion testimony and that his opinions would be based on information received after his deposition and not wholly from his status as the plaintiffs treating physician plaintiff did not substantially comply with Code of Civil Procedure requirements for expert witness designation. The Dozier court spelled out what is not required of a witness testifying as a treating physician an expert witness declaration under Code of Civil Procedure section 2034. This is true even if the testimony will include opinions with respect to subjects such as causation and standard of care. Thus the information required by the expert witness declaration is unnecessary for treating physicians who remain in their traditional role. Dozier supra 199 Cal.App.4th at p. 1521 emphasis added. But when the treating physician receives for example additional materials to enable him or her to testify to opinions on a subject on which he or she had formed no opinions in connection with the physician-patient relationship the role turns to that of a retained expert which requires an expert witness declaration. The Dozier court concluded that the record showed that at the time of deposition the treating physician had not formulated an opinion on the subject of the defendants adherence to the standard of care and his later-formulated opinions were based on information counsel provided to him after deposition for purposes of the lawsuit rather than on the basis of the physician-patient relationship. The court found that the trial court therefore correctly determined that the trial testimony on standard of care would be that of retained expert rather than merely treating physician and as such was properly excluded. Dozier is a crucial case for defense counsel. The general takeaway is that a partys expert may not offer testimony at trial that exceeds the scope of deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony. ASCDC appeared as amicus curiae in the case to request publication of the opinion that was originally designated to be unpublished. Publication allows counsel to rely on Doziers sound and explicit statement of law which has been effective in cutting back on the gamesmanship in expert disclosure that occurs with treating physicians in medical malpractice cases. Dozier is strong support for a motion in limine to limit a treating physician to testimony on opinions formulated at the time of deposition Conclusion The cases discussed above reflect the purpose of the expert witness discovery statute to give fair notice of what an expert will say at trial. Bonds v. Roy 1999 20 Cal.4th Non-Retained Experts continued from page 24 continued on page 26 28 verdict Volume 1 2015 In a matter of first impression in California an appellate court has concluded that a party to litigation cannot use another partys denial of Request for Admissions as impeachment at trial. On January 13 2015 in Gonsalves v. Li 2015 WL164606 the First District Court of Appeal overturned a 1.2 million jury verdict after the plaintiffs attorney repeatedly examined the defendant over his denials of admission requests that had been propounded in the case. In Gonsalves plaintiff Kenneth Gonsalves worked as a sales consultant at a BMW dealership. He filed an action against Ran Li and Xiaoming Li after Ran Li lost control of a BMW that he was test-driving with Gonsalves and Xiaoming Li as passengers. After Ran Li turned onto a freeway on-ramp he lost control of the vehicle causing it to spin into a guardrail. Gonsalves sued Ran Li for motor vehicle negligence and sued Rans father Xiaoming Li for negligent supervision. Xiaoming was later dismissed from the action. Ran denied liability and claimed that he lost control of the vehicle when Gonsalves told him to hit the M button in the vehicle so that he could experience the vehicles full potential. Gonsalves claimed significant injuries as a result of the accident. During the litigation Gonsalves propounded Requests for Admissions including requests that Ran Li admit that Trial Evidence Limitations Imposed on Request for Admission Denials by Craig A. Roeb Esq. and Grace A. Nguyen Esq. he was driving too fast and that his pressure on the accelerator was a substantial factor in causing the accident. Ran Li denied these requests on grounds that he lacked sufficient information to admit or deny these specific facts. At trial on cross-examination Gonsalves counsel extensively questioned Li on his failure to admit the Requests for Admission. Objections by defense counsel that the questions were argumentative were overruled. During closing arguments Gonsalves counsel commented on Lis responses and urged the jury to consider the fact that Li failed to admit these facts when considering liability. The jury awarded Gonsalves in excess of 1.2 million. Requests for Admissions are an underutilized discovery tool that can assist a party in establishing admissible evidence that can be used both at trial and often in summary judgment motions. Requests for Admissions can be used to establish the truth of certain facts the genuineness of documents and a partys opinion on a particular matter. Under California Code of Civil Procedure Section 2033.410 a fact admitted in response to a Request for Admission is conclusively established against the party making the admission. The primary purposes of Requests for Admissions are to expedite trial and eliminate the need to prove certain matters at trial. Thus the proverbial carrot and stick for parties to consider propounding carefully crafted admission requests given risk of failing to admit that which inevitably must be conceded especially given the attorney fees sanction available to the party forced to prove an unreasonably denied admission request. See Garcia v. Hyster Co. 1994 28 Cal.App.4th 724 736-737 the statute authorizes only those expenses ... proving the matters denied by the opposing party. Specifically if a party unreasonably fails to admit the fact and the truth of that matter is later determined by the requesting party the requesting party can seek an order requiring the non-admitting party to pay the reasonable expenses in proving that fact. C.C.P. 2033.420 fee shifting not appropriate when the party failing to make the admission had reasonable ground to believe that that party would prevail on the matter see Brooks v. American Broadcasting Co. 1986 179 Cal.App.3d 500 511 accord Hillman v. Stults 1968 263 Cal.App.2d 848 886 Chodos v. Superior Court 1963 215 Cal.App.2d 318 324 . The trial court can award costs incurred in proving non-admitted matters not only if it finds the responding party did not have substantial justification in denying the particular request but also if the responding party failed to make a reasonable investigation into the matter at issue. Smith v. Circle P. Ranch Co. Inc. 1978 87 Cal.App.3d 267. While this does not mean continued on page 29 30 verdict Volume 1 2015 Volume 1 2015 verdict 3