Colloquy
187 linesTHE COURT: Allright. Thank you. Your next witness.
MS. MEYERS: Your Honor, we call Dr. Kulber next, but I know we have a preliminary matter that we need to deal with briefly, if we may approach?
THE COURT: Sure.
MS. MEYERS: So, Your Honor, we -- sorry. Your Honor, we went back and confirmed to May 24, 2022 Kulber's notes were produced at Depp 18263 through -99,
MR. ROTTENBORN: Notes or records? Those are emails.
MS. MEYERS: No, no, no. These are his notes. I can show you. I have it on my phone.
MR. ROTTENBORN: We ask them to send those to us.
THE COURT: Sure.
MS. MEYERS: They're records from Cedar...
MS. VASQUEZ: Cedars-Sinai. He works for Cedars-Sinai --
MS. MEYERS: He works for Cedars-Sinai, and it says at the top, "Dr. Kulber."
MS. VASQUEZ: In Los Angeles.
MR. ROTTENBORN: I'm not sure that any of us have seen those before, Your Honor. We just asked them to email them to us.
MS. VASQUEZ: They're Bates-stamped.
THE COURT: Well, you can email them to him, and as soon as we take the morning recess, you can take a look at them,
MS. BREDEHOFT: They still haven't identified them in the response, Your Honor.
MS. MEYERS: Well, and, Your Honor, in our supplemental response, we referred defendants to the medical records in this action which contains the responsive information, and one of those documents, Depp 1892, is identified here and that identifies Dr. Kulber.
THE COURT: But you never identified him in your submission?
MR. ROTTENBORN: Your Honor, it's not hard to list names.
MS. VASQUEZ: None of the names are identified.
MS. MEYERS: Yeah, we listed the Bates numbers that included the information --
THE COURT: So none of their names?
MS. VASQUEZ: None of the medical providers have been identified by name.
THE COURT: So none of the medical providers were put in there by name; is that correct?
MR. ROTTENBORN: I can't speak to that, Your Honor. All I can speak to --
THE COURT: So you didn't object to any § of the other medical providers?
MR. ROTTENBORN: I don't know. J don't know. I didn't --
MS. BREDEHOFT: Well, they didn't have any other medical providers testify here.
THE COURT: Well, they, again --
MS. MEYERS: Dr. Kipper.
MS. BREDEHOFT: No, no. They didn't identify Dr. Kipper, Your Honor. They identified him in the witness interrogatories. We had an opportunity to depose him.
THE COURT: Well, as a witness, but I'm talking about that your objection is over the medical records, and that they didn't identify him as a medical provider.
MR. ROTTENBORN: Your Honor, I can't speak to the other -- a lot of the other doctors have come in in numerous ways. They've been on the radar screen for years. Here, there's --
MS. BREDEHOFT: We didn't identify them.
MR. ROTTENBORN: It's not hard to have an interrogatory response that lists a person by name. To just bury it and say, "You better review this, and maybe you'll get a name from it," that's total sandbagging. It's gamesmanship. It's not appropriate, and especially to do it with one day's notice when -- especially under 801 -- under 11399, Your Honor, we would need to see the records to see what --
THE COURT: Well, I'm going to give you the records. Rule 801, I think, is covered if these are the medical records. That's covered.
FEMALE SPEAKER: Yeah.
THE COURT: The question, now, is just if he was identified as a medical provider.
MR. ROTTENBORN: That's the paragraph. And it doesn't --
MS. BREDEHOFT: It was January -- that was supplemented January 2022. We already had Kipper. We already had Blaustein. We already had everybody else.
THE COURT: But they don't identify those people here either.
MS. BREDEHOFT: Well, but they identified them in their witness interrogatory, so we had them anyway.
MR. ROTTENBORN: They hadn't given us those names. This is totally different.
MS. BREDEHOFT: Anyway, I mean, we're not -- yeah. We're not playing games, Your Honor. I mean, if they had identified them already as witness interrogatories, then we already knew that. But we didn't know about Kulber, and we didn't know they were anticipating making him a rebuttal witness.
MS. MEYERS: Your Honor, I would just point out that the document that identifies Kulber is Depp 1892. That's a document that would have been produced very early on in the --
THE COURT: That identify him?
MS. MEYERS: No. So we identified the Bates range Depp 1628 through 1927, and within that is Depp 1892, which identifies Dr. Kulber. It's other medical record from Dr. Kulber.
MR. ROTTENBORN: Have no idea what that is, Your Honor, but it's not hard to put a name. This is just -- it's -- FEMALE SPEAKER: Your Honor, they did not object to --
MS. BREDEHOFT: If they'd put the name, we would have known that they were contemplating calling him.
MR. ROTTENBORN: We didn't know that there was a name.
THE COURT: Where's the -- "Plaintiff refers defendants to the medical records produced in this action that the plaintiff offered" --
MS. VASQUEZ: "From which."
THE COURT: "from which information responsive to this interrogatory may be obtained, specifically (indiscernible)."
MR. ROTTENBORN: It's not hard to list the name of the doctor.
THE COURT: I know.
MR. ROTTENBORN: It was coming up for the first time.
THE COURT: It appears they complied with it, the response.
MS. VASQUEZ: They didn't object, Your Honor.
MR. ROTTENBORN: They didn't. We asked them to identify -- well, you don't object to what you don't know.
MS. VASQUEZ: From which part?
MS. MEYERS: Are you saying you didn't have these documents that we identified?
MR. ROTTENBORN: I'm going to keep my comments confined to the Court, but they didn't identify the doctor. We have under -- 399's only covered if what he's going to testify to is in the medical records, and I need a chance to see those.
THE COURT: Allright. That's what I'm going to do. I'm going to take a break. I'm going to do. I'm going to take a break. I'm going to allow him to testify if it's in those actual medical records, within those medical records, okay?
MR. ROTTENBORN: We would ask those be -- are those -- can Your Honor ask them if they're trial exhibits? Because, again -- and if they're not hearsay?
THE COURT: This is a rebuttal witness.
MR. ROTTENBORN: All right. Are they hear -- based on Your Honor's ruling about medical records and if they're hearsay, he can't testify to what they say.
FEMALE SPEAKER: He's testifying about his treatment.
THE COURT: He's testifying from his memory, I assume. This is just a discovery issue, and that's what I'm trying to address right now. None of these medical records are coming into evidence.
MR. ROTTENBORN: Understood. But we need to see them.
THE COURT: Right. I totally agree May 24, 2022 with you.
MS. MEYERS: I'm sending them to you right now.
THE COURT: So send them. And we'll look at them and see if that does -- because seems like he's limited to what he's going to testify to is the type of cast it was. So --
MR. ROTTENBORN: Can Your Honor ask them to confirm that?
MS. MEYERS: Well, we're going to ask about the state of his hand, but also the cast.
MR. ROTTENBORN: Well, that's way different.
THE COURT: Well, you need to --
MS. MEYERS: That's rebuttal.
THE COURT: I know it's rebuttal, but now because it's medical records, I need to know exactly what you provided.
MS. MEYERS: There's a list of notes that cover, it seems like,.the full range of his treatment, and I just sent them to them,
MS. BREDEHOFT: But he cannot testify But he cannot testify to that under the rule?
THE COURT: What was the rebuttal part?
MS. MEYERS: The rebuttal part is the state of Mr. Depp's hand in March 2015 when he supposed -- when Ms. Heard -- Ms. Heard and Ms. Henriquez both testified that Mr. Depp was able to attack them and try to push them down the stairs at the stairs incident in March 2015. Doctor -- and that he was wearing a hard cast at the time. Dr. Kulber is just going to testify that his finger was in a pin, there was a skin graft, and he had a soft cast on at that time, that he had recently performed surgery, essentially, yes. And that was what this hand state was at that time.
MS. BREDEHOFT: That's expert testimony.
THE COURT: Just that he performed surgery and he had a soft cast on, not a hard cast.
MS. VASQUEZ: And pin in it.
MS. MEYERS: And pin in it and a skin graft.
MR. ROTTENBORN: If there's going to be any testimony on what the cause of the finger injury was? Because that would be an expert opinion.
MS. MEYERS: I'm going to ask if he has an understanding, but --
THE COURT: No, you're not.
MS. MEYERS: Okay. I will not.
THE COURT: Not going to ask that.
MR. ROTTENBORN: I've asked the question twice, and they've now identified two more things that they want to go beyond the Court's rulings. Can we get a complete --
THE COURT: I understand that the only thing they can talk about is the pin -- they did the surgery, pin, and soft cast. That's all I should hear.
MS. VASQUEZ: And the skin graft, Your Honor. Skin graft on the pin.
MS. MEYERS: That was on the surgery.
MR. ROTTENBORN: That's new.
MR. ROTTENBORN: That's new.
MS. VASQUEZ: No, it's not new.
MS. MEYERS: No, it's not new. It was reflected in Debbie Lloyd's notes as well.
THE COURT: Please just address me.
MS. MEYERS: I apologize. So this is just there was a surgery performed and then the state of his hand on the date of this alleged incident, so what the state of his hand was after that surgery. And so that involves essentially what he did in the surgery and what -- how the hand was after that.
THE COURT: We're not going to go into the whole surgery.
MS. MEYERS: I'I'm not. I'm just going to say there was a surgery performed and then what was the state -- you know, that -- what --
THE COURT: What exactly is he going to testify to this?
MS. MEYERS: Essentially, he's going to say, "I put a pin in, There was a skin graft or a cadaver over the top of the finger, and then it was wrapped in a soft cast and immobilized," (6756 to May 24, 2022 essentially.
THE COURT: And that's it?
MS. MEYERS: Yes.
THE COURT: All right. We'll see if it's in the --
MR. ROTTENBORN: I'm going to be ready to jump up and --
THE COURT: And I'll jump up there with you, okay? Because that's what we're going to work with.
MR. ROTTENBORN: If we can have a chance to --
THE COURT: Yeah. We'll go ahead and take our morning recess to give you a chance to look at that.
MS. BREDEHOFT: And just as long as we're up here, Your Honor, to save some time later, they have listed Dr. Curry as a rebuttal witness. I don't think she has anything that she can rebut. So I just --
THE COURT: Well, I mean, that --
MS. VASQUEZ: Dr. Hughes's testimony.
MS. VASQUEZ: Dr. Hughes's testimony, Your Honor. She can rebut Dr. Hughes's --
THE COURT: If they can rebut Dr. Hughes's testimony, that's their rebuttal.
MS. BREDEHOFT: She will have to have designated in order to do that.
THE COURT: No. She was an expert witness. How would she not have anything to rebut? So no. The answer's no.
MS. VASQUEZ: Thank you, Your Honor.
THE COURT: All right. Ladies and gentlemen, I apologize again. We have a few things to take care of. We're just going to go ahead and take our morning recess now for 15 minutes. Do not discuss the case and do not talk to anybody. Okay? Do not do any outside research. Sorry. That was the same thing.
THE COURT: And if the doctor testifies, then is that Webex? . DEPOS On NHNA PWN
MS. VASQUEZ: Yes.
THE COURT: All right. So I'll get that set up too while we take the break as well. Allright. We'll go ahead and take a break. Let's make it 10:50 to give them time to look at everything, okay?
THE COURT: Okay.
MS. BREDEHOFT: Thank you.
COURT BAILIFF: All rise.
COURT BAILIFF: All rise. Please be seated and come to order.
THE COURT: All right. Yes, sir.
MR. ROTTENBORN: Can I approach?
THE COURT: Okay. Approach. Ms. Meyers.
MR. ROTTENBORN: I'm still skeptical that the medical records discuss what they're going to want. But I'll just take it question by question, and I'll object if I think it goes beyond what --
MS. MEYERS: And, Your Honor, may I just say I thought, as you said, that the medical records were a discovery issue. I mean, we can call him to rebut testimony that is based off his memory of treating Mr. Depp, but it wouldn't necessarily be reflected in the medical records.
MR. ROTTENBORN: No, not under 399.
THE COURT: You testified -- not testified --
MS. MEYERS: I represented that -- the topics that he would be testifying to, yes.
THE COURT: That's what it is.
MS. MEYERS: Right. And I don't think that's a proper objection that the soft cast is not in the medical records or something like that. If he -- we've produced his medical records and he's testifying as a --
THE COURT: It comes in. You can cross-examine,
MR. ROTTENBORN: Right. But the only thing that he can testify to is something -- or as 399 says, observations, diagnoses, et cetera, et cetera.
THE COURT: You can cross-examine him on that.
THE COURT: He's not going to give any opinions.
MR. ROTTENBORN: Correct. And anything he testifies to has to have been contemporaneously documented in the medical records under the statute.
THE COURT: Well, you have to be provided.
MR. ROTTENBORN: All right. But as contemporaneously documented. So if he didn't document something in the medical records, he can't get up here now and say, "Oh, and I also remember this and this and this that's not reflected in the medical records."
THE COURT: But you're saying the cast +419 is in the records.
MR. ROTTENBORN: I'm saying there's a reference to a splint, but I'm going to -- and I can cross-examine him on it can cross-examine him on it.
MR. ROTTENBORN: Understood. If they want him to say there's a soft cast, I'm not going to object to that probably, I mean, depending on what the question is. But if it's beyond -- if it's something that, based on a quick review of the medical records, is not in the medical records, he can't testify to any observations or diagnoses or treatments that aren't in there.
MS. VASQUEZ: The soft cast.
MS. MEYERS: Your Honor, I don't think that a medical professional is limited in their testimony or what they decided to document in the medical records. They have the medical records that were taken contemporaneously with the treatment, and we, you know, some of what he testifies to may be reflected in those medical records and some of them may be from his own recollection of treating Mr, Depp.
THE COURT: It just talks about "shall be disclosed." Didn't talk about testifying. T DEPOS )
MR. ROTTENBORN: But it says if the -- I'm trying to do my best here. If it's --
THE COURT: Communications between physicians and patients, and } understand that, except at the request or the consent of the patient --
MR. ROTTENBORN: Right. But the first --
THE COURT: Then the practitioner "110 will still need to come in and testify. That's the testify part. The part you're talking about just says that they shall be disclosed.
MR. ROTTENBORN: Right. But it says 14"as contemporaneously documented"; that's the operative.
THE COURT: Right. But that doesn't affect his testimony though.
MR. ROTTENBORN: Understood. But if he's testifying to diagnoses that aren't in the medical records, he can't do that under that statute.
THE COURT: He can do that. He can do that because that's not testimony. Testimony is up here on A. B is just talking about what needs to be turned over; this is not talking about testimony, actually, okay?
MR. ROTTENBORN: Okay.
THE COURT: But I mean you can cross-examine on that, clearly, okay?
MR. ROTTENBORN: Okay. Thank you.
MS. MEYERS: Thanks.
THE COURT: All right. Yes. Are we ready for the jury?
MS. MEYERS: Yes.
THE COURT: Okay. Sir, can you hear me?
DR. KULBER: Yes. Can you hear me?
THE COURT: Yes. Can you count to five for me
DR. KULBER: One, two, three, four,
THE COURT: All right. I'm just trying to get you on the big screen. We're waiting for the jury. Just give us a minute, okay, sir?
DR. KULBER: Thank you.
THE COURT: Thank you. You can be seated. All right. Your next witness.
MS. MEYERS: We call Dr. Kulber.
THE COURT: All right. Sir, if you could, raise your right hand.
[STAGE DIRECTION]: Witness called on behalf of the plaintiff and counterclaim defendant, having been first duly sworn by the judge, testified as follows:
MR. ROTTENBORN: Your Honor, I would just object that Dr. Kulber appears to have a stack of documents right in front of him.
THE COURT: All right. Sir, you can put your hand down, and any documents you have, if you could, put them away and just testify from your memory, okay, sir? Thank you.
MR. ROTTENBORN: Thank you, Your Honor.
THE COURT: Allright. Your questions.