Podiatric Medical Board v. Superior Court (Mar. 30, 2021, A155260)__ Cal.App.5th __ [2021 WL 1183162]
Administrative law judges may not issue evidentiary sanctions to remedy discovery abuses.
Dr. Peter Redko designated Dr. Thomas Chang as his standard of care expert witness in a disciplinary proceeding before the Podiatric Medical Board. The Board issued a subpoena seeking production of all documents and records Dr. Chang had relied on in forming his expert opinion and all communications between him and Dr. Redko’s defense counsel. Dr. Redko moved unsuccessfully to quash the subpoena, claiming it sought production of privileged information. When Dr. Chang declined to comply with the subpoena, the Board moved to exclude his testimony, but did not move for an order compelling production. The presiding ALJ granted the motion, ruling that Dr. Chang had refused to comply with the subpoena “ ‘without any reasonable basis’ ” and prohibiting him from testifying. At the hearing, a different ALJ sustained the Board’s charges against Dr. Redko. The trial court granted Dr. Redko’s petition for writ of administrative mandate, ruling that “the Administrative Procedure Act (APA) governing contested adjudicatory hearings (Gov. Code, § 11400 et seq.) do[es] not expressly provide for imposition of witness exclusion as a discovery sanction.” The Board appealed.
The Court of Appeal affirmed. First, the court rejected the Board’s argument that the ALJ was authorized to exclude Dr. Chang’s testimony as an implied power relating to the ALJ’s statutory authority to the conduct the hearing (see Gov. Code, §11512), because the ruling was made prior to the hearing and by a different ALJ than the one who conducted the hearing. The court also reasoned that it would be improper to imply authority to order evidentiary sanctions when the APA expressly authorizes certain remedies (including orders compelling production, monetary sanctions, and contempt sanctions), but does not authorize evidentiary sanctions. Finally, the court rejected the Board’s analogy to the implied authority possessed by federal ALJs and superior court judges, since their powers derive from different sources.
The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.