Plaintiff Robert Dozier appeals from a judgment in favor of defendants Michael R. Shapiro, M.D., and Michael R. Shapiro, M.D., Inc. (collectively Dr. Shapiro), in his action against them for medical malpractice. Plaintiff contends that the trial court committed reversible error by precluding his expert from testifying at trial that Dr. Shapiro’s treatment of Dozier fell below the standard of care, resulting in the dismissal of the action due to Dozier’s inability to prove the elements of his claim. We conclude that the trial court committed no prejudicial error.
Factual Background
In an April 2008 complaint, Dozier alleged that Dr. Shapiro and his clinic were guilty of professional negligence in their surgical treatment of Dozier’s left knee.
On January 16, 2009, defendants deposed Dr. Eric Zeegen, the physician who performed Dozier’s knee replacement, as a treating physician. Dr. Zeegen testified at his deposition that when he treated Dozier after Dr. Shapiro’s osteotomy, “it looked like the screw had penetrated into the joint.” But when he was asked whether he had formed an opinion that Dr. Shapiro had placed the screw improperly, Dozier’s counsel objected: “Calls for speculation, for an expert opinion. He’s not being deposed as an expert, [f] . . . You’re asking for an expert opinion. It goes beyond the care and treatment.”
After the objection, Dr. Zeegen testified that whether Dr. Shapiro had placed the screw improperly in the first instance, or it had migrated into the joint over a period of time, is “hard to say.” That determination would require him “to look at serial x-rays from immediate postoperatively to over the course of time” before Dozier had come to him, an examination Dr. Zeegen had not done. Later in the deposition Dozier’s counsel objected to questions about whether Dr. Zeegen’s own medical practice included performing high
On February 2, 2009, Dr. Shapiro’s counsel served a demand to exchange lists of expert witnesses. Pursuant to Code of Civil Procedure section 2034.210, the demand advised that the list of witnesses “must contain the name and business or residence address of each expert you expect to call in person or through deposition, and you must give a narrative statement of the qualifications of each such expert witness, the general substance of the testimony that each such expert witness is expected to give at the time of trial, and the fee charged by each such expert.” It advised (in uppercase font) that a failure to comply with these requirements would constitute a waiver “of your right to call unlisted expert witnesses at the time of trial.”
Dozier’s February 20, 2009 response to the demand for an exchange of expert witness lists stated, “Plaintiff intends to call various treating health care providers as expert witnesses at trial,” who “are regarded as percipient witnesses not retained experts.” Dr. Zeegen was among the nine “non-retained percipient experts whose testimony may be elicited at the time of trial” listed in Dozier’s response. The response went on to explain that “[b]ecause treating physicians and other healthcare providers are not ‘retained’ expert witnesses within the meaning of Code of Civil Procedure, §2034(a)(2), no declaration is required for these witnesses (see [Schreiber v. Estate of Kiser] (1999)
On May 21, 2009, Dozier filed a joint list of proposed witnesses, which listed three expert witnesses—not including Dr. Zeegen—whose testimony would include the subjects of “liability, causation and damages.” Dr. Zeegen was identified on the list as a “Treating Doc/Expert” who would testify only on “the need for surgery as well as the need for future surgeries, knee revisions and replacements.”
Trial was delayed by various circumstances until late February 2010. On May 1, 2009, Dr. Shapiro filed a motion under Kennemur v. State of California (1982)
Because Dozier’s counsel represented that Dr. Zeegen had testified at his deposition that Dr. Shapiro had breached the standard of care, on the morning trial was to commence the court held a hearing under Evidence Code section 402 and voir dire examination of Dr. Zeegen, to determine whether Dr. Zeegen’s deposition testimony (and therefore the testimony he would be permitted to offer at trial) could satisfy Dozier’s burden of proof on the standard of care issue.
After reviewing Dr. Zeegen’s deposition testimony in detail, the trial court concluded that at his deposition Dr. Zeegen had testified that he had not then formulated an opinion about either whether Dr. Shapiro’s treatment fell below the standard of care, or the extent to which Dozier’s osteoarthritic condition had resulted from Dr. Shapiro’s treatment. Having read the deposition, the court found that “there isn’t anything there that can go to the jury.”
Finding that Dozier’s request that he formulate opinions and testify to opinions based on materials he had been provided only after his deposition (not in connection with his treatment of Dozier) had transformed Dr. Zeegen into a retained expert, the court held that Dozier’s counsel was obligated to notify opposing counsel of the change in Dr. Zeegen’s status—which he had not done.
Discussion
The appeal contends that the trial court abused its discretion by dismissing the case because Dr. Zeegen’s status as a treating physician obviated any expert witness declaration from him, and in any event Dozier had substantially complied with the expert witness declaration requirement; because Dozier had not unreasonably failed to comply with the expert witness exchange requirements (and the court made no finding that he had); and because defendants had failed to question Dr. Zeegen about his opinions on the standard of care issue at his predesignation deposition, and in any event Dr. Zeegen had testified at his deposition that Dr. Shapiro’s treatment of Dozier breached the applicable standard of care. These contentions have no merit.
We review the trial court’s rulings for abuse of discretion. (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003)
Dozier’s appeal contends that “Dr. Zeegen was not asked whether he had an opinion as to whether Dr. Shapiro complied with the applicable standard of care or, if he did have an opinion, to state his opinion. Further Dr. Zeegen’s testimony, reasonably construed, stated an opinion that Dr. Shapiro breached the applicable standard of care.” From these conclusions Dozier implies that the defense either had adequate notice of the opinions to which Dr. Zeegen would testify at trial, or that if it did not, it was their own fault. The record does not support these contentions.
The opening brief cites what it represents to be “all occasions on which [Dr. Zeegen] was asked to state opinions, directly or indirectly, regarding care Dr. Shapiro provided” to Dozier. It characterizes Dr. Zeegen’s testimony as containing opinions that (1) the screw was in Dozier’s knee joint; (2) Dr. Shapiro placed the screw either in the joint or very close to the joint; (3) Dr. Shapiro’s responsibility, as surgeon, was to place the screw so that it did not migrate into the joint; and (4) the screw’s presence in the joint probably contributed to Dozier’s arthritis, which had caused Dozier’s need for knee-replacement surgery.
In addition, the remainder of Dr. Zeegen’s testimony precluded any possibility that Dr. Zeegen was then testifying to an expert opinion that Dr. Shapiro’s placement of the screw had been below the applicable standard of care. And Dozier’s counsel’s objections and positive representations informed counsel that Dr. Zeegen’s testimony to such a conclusion would not be offered—at least, not without his designation as a retained expert (which never occurred).
Dr. Zeegen testified at his deposition that he had not been retained as an expert witness in this litigation, and that all his opinions “are based on my treatment provided to this patient, as well as my experience and qualifications . . . .” He testified that in order to determine whether the screw had been initially placed in the joint or had later “pushed through,” Dr. Zeegen “would need to look at serial x-rays” that he had not examined at the time of his deposition—indicating that without further information he could not form an opinion as to the propriety of Dr. Shapiro’s treatment. Other than the opinions expressed in his treatment notes, Dr. Zeegen testified, he had no other opinions regarding the medical or surgical treatment given by Dr. Shapiro at the time of Dozier’s surgery.
At the trial court’s hearing under Evidence Code section 402, evaluating the sufficiency of plaintiff’s anticipated evidence on the standard of care issue, Dr. Zeegen confirmed that he “did not have enough information at [his deposition] to form an opinion or impression as to whether or not the standard of care had been met or breached by Dr. Shapiro back in 2007.” At his deposition, he confirmed, he “did not express any criticisms of Dr. Shapiro’s care and treatment” of Dozier. It was only a year later—after “I was asked to be an expert witness last month, in January of [2010]”—that he had received Dr. Shapiro’s medical records and deposition, enabling him to formulate an opinion as to whether Dr. Shapiro’s treatment of Dozier had or had not complied with the standard of care.
On this record, the trial court was justified in concluding that Dozier failed to demonstrate at the Evidence Code section 402 hearing either that Dr. Zeegen had testified at his deposition that Dr. Shapiro’s treatment had fallen below the standard of care, or that defendants had failed to ask him about his opinions on that subject.
2. By Failing to Disclose the Substance of Dr. Zeegen’s Anticipated Opinion Testimony, and That His Opinions Would Be Based on Information Received After His Deposition and Not Wholly from His Status as Dozier’s Treating Physician, Plaintiff Did Not Substantially Comply with the Code Requirements for Expert Witness Designation.
In an exchange of expert witness information under Code of Civil Procedure section 2034.210, subdivision (a), a party may provide either “[a] list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial” or “[a] statement that the party does not presently intend to offer the testimony of any expert witness.” (Code Civ. Proc., § 2034.260, subd. (b)(1), (2).)
In Easterby, the plaintiff’s expert testified at his deposition that he had formulated no opinion that the plaintiff’s injury resulted from the defendant’s allegedly negligent conduct, and that he had not been asked to testify on that subject at trial. And here, Dr. Zeegen testified at his deposition that he was unable to formulate an opinion as to whether Dr. Shapiro’s treatment of Dozier was proper on the basis of the information he had then been provided. The facts of this case differ from those in Easterby v. Clark, in one critical respect: In Easterby, the plaintiffs had informed the defendants’ counsel long before trial that the expert would testify at trial to the opinion he had disclaimed at his deposition, that the allegedly negligent event caused the plaintiff to require surgery.
Here, unlike in Easterby, Dozier’s counsel did not disclose that Dr. Zeegen would testify at trial that Dr. Shapiro’s treatment of Dozier fell below the standard of care. His response to the expert witness exchange, served February 20, 2009, listed nine doctors whose expert testimony “may be elicited at the time of trial,” identifying them as “treating physicians” and “not retained experts.” The response went on to say that no expert witness declaration was required for any of these expert witnesses, because they are not “ ‘retained’ expert witnesses” within the code’s meaning. Finally, the response stated that with respect to those of the listed experts who had treated Dozier’s knee condition, it was anticipated that those unspecified experts “will testify about standard of care,” among other topics; but it did not disclose the substance of Dr. Zeegen’s anticipated testimony on any of those subjects; it did not disclose that his testimony on those subjects would be wholly different from his deposition testimony (where he denied having
The issue here is not whether an expert witness declaration is necessarily required when a treating physician testifies as an expert; it is not. (Schreiber v. Estate of Kiser, supra,
A treating physician is not consulted for litigation purposes, but rather is qualified to testify about the plaintiff’s injuries and medical history because of his or her underlying expertise as a physician and his or her physician-patient relationship with the plaintiff. A retained expert, on the other hand, is engaged for the purpose of forming and expressing an opinion in anticipation of the litigation based at least in part on information obtained outside the • physician-patient relationship, for the purpose of the litigation rather than the patient’s treatment. (Schreiber v. Estate of Kiser, supra,
A treating physician unquestionably may be designated as an expert, and may be qualified to testify (given an appropriate factual basis) on the subject of a defendant physician’s adherence to the applicable standard of care. (Schreiber v. Estate of Kiser, supra,
Dozier thus was entitled to present Dr. Zeegen’s testimony as an expert on the basis of the facts he had learned and opinions he had formulated in connection with his physician-patient relationship and treatment of Dozier. But at his deposition, Dozier’s counsel objected to any examination of Dr. Zeegen about the applicable standard of care and Dr. Shapiro’s adherence
In section 2034.210, the Legislature determined that the information required by the expert witness declaration “is unnecessary for treating physicians who remain in their traditional role.” (Schreiber v. Estate of Kiser, supra,
Dozier’s counsel transformed Dr. Zeegen, a treating physician, into a retained expert by giving him additional information and asking him to testify at trial to opinions formed on the basis of that additional information. But Dozier did not designate him as a retained expert, and did not disclose the substance of his anticipated testimony. As the trial court concluded, “I don’t think that that is proper under either of these two cases [(Kalaba v. Gray (2002)
The record shows without contradiction that at the time of his deposition Dr. Zeegen had not formulated an opinion on the subject of Dr. Shapiro’s adherence to the standard of care, and that his later-formulated opinions on that subject were based on information he was provided by counsel after his deposition for the purpose of the lawsuit, rather than on the basis of his physician-patient relationship as Dozier’s treating physician. On that record, the trial court correctly determined that Dr. Zeegen’s trial testimony on the subject of the standard of care would be that of a retained expert rather than merely a treating physician, and was justified in precluding him from testifying to opinions he had formed for the litigation, including his opinions on the subject of Dr. Shapiro’s compliance with the standard of care.
3. Plaintiff’s Failure to Comply with the Code’s Expert Witness Exchange Requirements Was Unreasonable.
The code’s expert witness information exchange requirements are set forth in section 2034.210 and the provisions referenced in that section. So far
Quoting from the opinion in Bonds v. Roy, supra,
Defendants took Dr. Zeegen’s deposition as a treating physician on January 16, 2009. Dr. Zeegen testified that he was unable to determine whether Dr. Shapiro’s treatment of Dozier fell below the applicable standard of care—whether “the screw had been placed improperly by Dr. Shapiro”—and that in order to do so “I would need to look at serial x-rays from immediate postoperatively to over the course of time . . . .” He expressed no other opinions on that subject, and disclaimed having any other opinions. And Dozier’s counsel went so far as to object, representing that the subject was not one on which Dr. Zeegen’s expert opinions were being offered. Whether Dr. Shapiro’s placement of the screw was improper, he objected, “[h]as nothing to do with when he was treating him or what he did as far as the care and treatment goes.” Dr. Zeegen’s deposition therefore was taken as a treating physician only, and not as a retained expert.
About two weeks later, on February 2, 2009, defendants served their demand for an expert witness exchange under section 2034.210. Plaintiff’s response did not inform them of any change in Dr. Zeegen’s status, or in his testimony. It did not “give fair notice of what [Dr. Zeegen] will say at trial”; and because it did not do so, it did not afford defendants an opportunity “to
The response therefore only reinforced the strong message that had been communicated at Dr. Zeegen’s deposition, that Dr. Zeegen was not among the physicians from which plaintiff would obtain evidence about the standard of care issue. From the response, defendants’ counsel could only have concluded that Dr. Zeegen would not be among the listed treating physicians from whom plaintiff might seek opinion testimony on that subject. No other conclusion would be consistent with the information provided.
In Easterby v. Clark, supra,
These facts distinguish the circumstances of this case from those in Easterby v. Clark. “The overarching principle in Kennemur, Jones, and Bonds is clear: a party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably
Disposition
The judgment is affirmed. Defendants to recover their costs.
Rothschild, Acting R J., and Johnson, J., concurred.
Notes
Plaintiff dismissed defendant Los Angeles Knee & Sports Medicine Clinic with prejudice during pretrial proceedings.
The response’s citation to Code of Civil Procedure section 2034, subdivision (a)(2) was later identified as an outdated reference to an earlier version of section 2034.210.
Dozier’s counsel informed the court that Dr. Zeegen was his only potential witness on the issues of standard of care and causation.
To the argument of Dozier’s counsel that the defense did not seek to depose Dr. Zeegen as an expert once he had been properly designated in the expert witness information exchange, the court responded: “You’re blaming the other side for not reading your mind that you had decided to ask the treating physician to do additional work after his deposition as the treating physician and to give him materials that he didn’t have access to as the treating physician. That took him out of the context of a treating physicist [mc] . . . .” “[0]nce you turn him into a different kind of witness, he’s no longer just a treating physician.”
For these propositions, the opening brief cites Dr. Zeegen’s deposition testimony that when he first discussed Dozier’s case with plaintiff’s counsel “it looked like that there had been a screw that had been placed in the joint that may or may not have contributed to the patient developing arthritis,” and that at that time its seemed to him “[pjrobably more probable” than not that the screw’s location had contributed to the arthritis. It cites Dr. Zeegen’s testimony that “[ijt’s hard to tell whether the screw was initially placed there or it was originally in a lower position and then there was settling at the osteotomy site and then pushed through. I would need to look at serial x-rays from immediate postoperatively to over the course of time to when he came to see Dr. Hollander.” It cites Dr. Zeegen’s testimony, when asked whether he had formed an opinion that the screw had been placed improperly, that “[mjy recollection of looking at all of the x-rays, and I don’t have-—it’s a somewhat vague recollection, but that was that the screw was awfully close to the joint surface from the very get-go and whether or not it had already—whether it had been placed into the joint initially or had migrated into the joint over a period of time, it is hard to say.” It cites Dr. Zeegen’s testimony that it is “a very difficult question to answer” whether he believed “that the fact that the screw had migrated into the joint contributed to the fact that he had no remaining cartilage,” although “[tjhere was a fair amount of arthritis there to begin with,” i.e., before Dr. Shapiro’s surgery. “A screw being in the joint, though, probably accelerated whatever arthritic changes there were to begin with.” And it cites Dr. Zeegen’s testimony that he doubted many orthopedic surgeons would seek a patient’s consent with respect to potential screw migration because “when you put a screw in, your responsibility as a surgeon is to make sure the screw is in bone properly, getting a good bite, such that it really shouldn’t migrate. So I don’t know that people would include something in a consent that would end up being a failure of the technique of the surgery.” Screw migration would be “a complication,” rather than “a risk” of the surgery.
Although Dr. Zeegen was listed in Dozier’s February 2009 response to the expert exchange demand as one of nine treating experts who might testify about standard of care, a few months later, on May 21, 2009, he filed a joint list of proposed witnesses that did not list Dr. Zeegen as one of the experts who would testify on the subjects of “liability, causation and damages.”
Further statutory references are to the Code of Civil Procedure unless otherwise specified.
The trial court suggested, before hearing Dr. Shapiro’s motion in limine, that if the parties believed there might be a problem with respect to expert depositions it would simply order a supplemental deposition before trial. But apparently because he never acknowledged that Dr. Zeegen’s testimony would be that of a retained expert, Dozier’s counsel had not requested such an order, and in any event has. not contended that the trial court would have had discretion to deny it.