Opinion
Plaintiffs Denise Easterby and her husband appeal from a judgment entered in favor of defendants Dr. Stephen W. Clark doing business as Spring Dental Group (Spring Dental Group), Nizar Laouiti, and Dr. Christopher Deledonne in their action for dental malpractice, general negligence, and loss of consortium. Plaintiffs contend the trial court committed reversible error when it excluded their expert’s testimony on causation at trial. Defendants Spring Dental Group and Laouiti appeal from a postjudgment order granting plaintiffs’ motion to tax expert witness fees.
We agree the trial court committed reversible error by excluding plaintiffs’ expert testimony and accordingly reverse the judgment in favor of defendants
BACKGROUND
On March 2, 2004, Laouiti, a dental assistant, stepped on a wire connected to an X-ray sensor that was in Easterby’s mouth. 1 Easterby’s head jerked to one side, she felt pain on the right side of her neck, and she later went to the emergency room where a physician prescribed pain medication. Over the next 18 months, Easterby felt pain in her neck, back, and shoulders and numbness in her left hand. Both her family practitioner and her internist prescribed pain medication and regular physical therapy. Neither treatment alleviated her pain.
Easterby’s internist referred her to Dr. John Regan, an orthopedic surgeon. Regan determined that Easterby suffered from a degenerative condition of the cervical spine and that she had compressed spinal nerves and herniated disks. Regan performed surgery to reduce the nerve compression. A year later, Easterby reported that she was “doing very well” despite occasional muscle spasms. Easterby and her husband sued Laouiti, his employer Spring Dental Group, and Easterby’s dentist Deledonne for dental malpractice, general negligence, and loss of consortium.
In September 2006, defendants deposed Regan. During the deposition, defense counsel asked Regan: “[T]his is our one opportunity to take your deposition as a designated medical legal expert. [¶] Have you formulated opinions on the subject of causation as it pertains to Denise Easterby and the alleged events of March 2nd, 2004?” 2 Regan replied: “I have not been asked to do that.” Defense counsel further asked: “And doctor, you cannot state to a reasonable degree of medical probability that as a result of the alleged event on March 2nd, 2004, that this patient required surgery, correct?” Regan replied: “Correct.” Plaintiffs’ counsel followed up with: “Do you know . . . what caused the surgical procedure, a trauma or something else?” Regan replied: “I don’t know what caused it.”
In January 2007, approximately three months before the start of trial, plaintiffs sent defendants the following correspondence: “This is to advise you that John J. Regan, M.D. has read his deposition taken on September 12, 2006, and will not make any changes. This is also to advise you that
A week before the start of trial, defendants, citing
Kennemur v. State of California
(1982)
During direct examination at trial, Regan testified at length about the nature of Easterby’s condition and how surgery alleviated much of the pain she felt in her neck, back, and shoulders. At one point, plaintiffs’ counsel implied through a question that the dental incident caused Easterby to have a pinched nerve. The trial court sustained defense counsel’s objection, and plaintiffs’ counsel followed up with: “What is the cause of that? Why did you do the surgery? What did it happen [sic] to cause the surgery?” Regan answered: “Well, the patient, Denise, had a degenerative condition of the cervical spine. She had a condition of aging of the cervical spine that had bone spurs . . . . [¶] The question really is[,] did this incident produce a problem that then requires surgery that would not get better without surgery[?] And my feeling is that she had an injury. She went to the emergency room, complaining of neck pain. She had conservative treatment. The treatment did not help her, and this is what eventually led to her needing surgery.” Defense counsel did not object to the question or move to strike Regan’s answer.
During cross-examination, Regan testified that he had not reviewed Easterby’s patient history, medical records, or X-rays predating March 2004. Defense counsel showed Regan various excerpts of Easterby’s medical history in which she complained of pain, compression, and injury in her neck and back stemming from multiple automobile accidents and a trip-and-fall predating March 2004. Defense counsel then asked: “Can you state to a reasonable degree of medical probability, based on all that you’ve seen, that
Court reconvened after lunch, and on redirect examination, Regan backed off from the testimony he provided during cross-examination. He explained that because he was not able to view the actual X-rays that were taken of Easterby’s vertebral column before March 2004, the only information he could rely on was Easterby’s description of her pain. Easterby reported to Regan that she was “asymptomatic” before the dental incident. After the dental incident, Easterby reported to Regan that she felt extreme pain, pain that could only be alleviated through surgery. Based on this report, Regan opined that “it was a medical probability that [the dental incident] was a cause of her eventual surgery.”
Regan further testified that he did not provide an opinion on causation at his deposition because he was “confused” about why defense counsel kept referring to a “dental chair accident.” Regan explained that at the time of his deposition, he believed Easterby had been involved in a vehicle accident in March 2004 based on erroneous information in her medical records. Once Easterby’s internist corrected the error and clarified that Regan sought treatment because of pain from the dental incident, and not from an automobile accident, Regan believed he could offer an opinion on causation at trial.
On the next day of trial, defendants moved to strike all of Regan’s testimony on causation, citing
Kennemur, supra,
After trial, defendants filed their memorandum of costs, which included expert witness fees pursuant to Code of Civil Procedure section 998. 4 Plaintiffs filed a motion to tax the expert witness fees, which the trial court granted. Plaintiffs timely appealed from the final judgment, and defendants timely appealed from the court’s postjudgment order.
I. Exclusion of Regan’s Testimony
Plaintiffs contend the trial court committed reversible error in striking Regan’s testimony on causation. According to plaintiffs, they fulfilled their requirement to notify defendants about the nature of Regan’s expected testimony through the January 2007 letter in which they stated that Regan would “testify at trial that to a reasonable degree of medical probability the event of March 2, 2004, led to plaintiff’s surgery.” Defendants contend that an expert may not offer an opinion on causation at trial if he declines to offer one during his deposition. We agree with plaintiffs’ contentions and conclude the trial court erred by striking Regan’s causation testimony. 5 We turn first to the legal framework and then to our analysis.
A. Legal Framework
“[W]e review the trial court’s ruling on the admissibility of expert testimony for an abuse of discretion.”
(Mateel Environmental Justice Foundation
v.
Edmund A. Gray Co.
(2003)
Under Code of Civil Procedure section 2034.210, subdivision (a), any party may demand the exchange of expert witness information.
6
In this exchange, 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.” (§ 2034.260, subd. (b)(1), (2).) “[Section 2034] and the case law . . . require that ‘the general substance of the testimony which the witness is expected to give’ must be disclosed upon proper request. As interpreted by the California courts, this requires a party to ‘disclose the
substance
of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both.’ [Citation.]”
(Williams
v.
Volkswagenwerk Aktiengesellschaft
(1986)
In
Kennemur, supra,
In
Jones v. Moore
(2000)
B. Analysis
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 difficult. The present case differs from Kennemur, Jones, and Bonds in one salient respect: Defendants learned approximately three months before trial that Regan would go beyond his original deposition testimony and offer a causation opinion at trial. Specifically, plaintiffs informed defendants that Regan would “testify at trial that to a reasonable degree of medical probability the event of March 2, 2004, led to plaintiff’s surgery.” Thus, unlike the defendants in Kennemur and Jones, and the plaintiff in Bonds, who had no reason to believe that the opposing party’s expert would offer an opinion at trial not offered in his deposition, defendants in this case were explicitly notified that Regan would offer an opinion that was different from the opinion he offered in this deposition. And unlike in Kennemur, Jones, and Bonds, defendants in this case had the opportunity to take Regan’s deposition in light of his changed opinion and prepare for cross-examination and rebuttal of his testimony. The elements of unfair surprise and prejudice present in Kennemur, Jones, and Bonds are entirely absent in this case.
Laying aside the fact that they were explicitly notified of Regan’s intention to testify about causation at trial, defendants appear to argue that plaintiffs’ failure to make corrections to the transcript of Regan’s initial deposition testimony foreclosed any possibility that Regan could offer an opinion on causation at trial regardless of what plaintiffs may have done subsequently to put defendants on notice of Regan’s anticipated trial testimony. But neither Kennemur, Jones, Bonds, nor any case we could identify stands for this stark proposition.
The relevant authorities conclude otherwise. Like any other witness, the fact that an expert’s testimony at trial differs from his deposition testimony goes to the expert’s credibility; it does not, without some further evidence of prejudice to the opposing party, serve as ground for exclusion. (See Weil et al., Cal. Practice Guide; Civil Procedure Before Trial (The Rutter Group 2007) ¶ 8:1718 [“[t]he fact that experts disclosed . . . and deposed prior to trial, give contradictory testimony at trial is
not
ground to exclude their testimony. Such ‘surprises’ go to the weight, not the admissibility ....”]; Wegner et al., Cal. Practice Guide; Civil Trials and Evidence (The Rutter Group 2007) ¶ 11:21h [advising attorneys: “when your expert has been deposed and disavowed having any additional opinions, and you later discover that he or she can offer additional helpful opinions,
write opposing counsel immediately.
Offer to have the expert redeposed and to
pay for the cost
of the second deposition”]; Code of Civ. Proc., § 2025.620, subd. (a) [“Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness . . . .”]; accord,
Williams, supra,
Furthermore, we conclude defendants’ position on appeal is patently at odds with their conduct at trial. Once defendants asked Regan at trial whether he believed the dental incident necessitated Easterby’s surgery, Regan was
Finally, we are not persuaded by defendants’ argument that plaintiffs “never advised [them] that Dr. Regan would testify as a retained expert.” According to defendants, “when Dr. Regan changed his testimony, ... he morphed from acting as a non-retained treating doctor with no opinion, whatsoever, as to causation, to a retained expert witness, with a new opinion as to causation.” Regan apparently underwent this metamorphosis according to defendants by “offer[ing] a new causation opinion based upon information he had learned in connection with the trial, not through his physician-patient relationship with Mrs. Easterby.”
As the Supreme Court explained in
Schreiber v. Estate of Kiser
(1999)
Our reading of the record does not comport with defendants’ contention that Regan relied only on information acquired at trial to form his causation opinion. On direct examination, Regan testified that even though Easterby had a “degenerative condition of the cervical spine,” he believed the dental incident resulted in an injury “that would not get better without surgery.” Thus, Regan opined, even though Easterby received “conservative treatment” for the pain she felt after the dental incident, “[t]he treatment did not help her, and this is what eventually led to her needing surgery.” This opinion was based entirely on information he acquired while he was treating Easterby as a patient. We recognize that on cross-examination, when presented with additional medical records by defense counsel, Regan backed away from his
For the foregoing reasons, we conclude the trial court erred by striking Regan’s testimony. An evidentiary ruling, even if erroneous, is not reversible absent a miscarriage of justice. (Cal. Const., art. VI, § 13;
People v. Watson
(1956)
As defense counsel readily acknowledged, the traditional response to a witness whose testimony is considered flawed would be cross-examination, impeachment, argument, and perhaps rebuttal. Defense counsel showed themselves to be well skilled in those arts. Had the case proceeded further, defendants would undoubtedly have argued that Easterby’s ailments, if any, were the consequence of a variety of prior events, even including an ill-fated encounter with a mule. Defendants will not be unarmed if this case ultimately reaches another trial, but plaintiffs are entitled to that trial.
II. Section 998 *
[[Image here]]
The judgment is reversed. Appeal by defendants Spring Dental Group and Laouiti is dismissed as moot. Plaintiffs shall recover their ordinary costs on appeal.
Notes
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
For brevity, we will hereinafter refer to the March 2, 2004 incident as the “dental incident.”
The record does not contain a copy of the deposition transcript for our review. We quote from defense counsel’s oral recitation of the deposition transcript at trial, which plaintiffs do not contend is inaccurate.
Apparently, Wanyik, Easterby’s internist, wrote in her patient history file that Easterby was rear ended in an automobile accident in March 2004, when no such accident had occurred. She notified Regan of this mistake in Easterby’s records after his deposition.
We discuss the facts pertinent to defendants’ Code of Civil Procedure section 998 offers in the section addressing that issue.
Because we agree with plaintiffs’ contentions on the merits, we do not reach their threshold argument that defendants waived their right to object to Regan’s testimony by waiting until the following day of trial to lodge their motion to strike.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
We also reject defendants’ similar contention that Regan’s testimony lacked foundation because it relied on information he acquired outside the physician-patient relationship. Defendants did not raise this as a ground to exclude Regan’s testimony below and they cannot raise it for the first time on appeal.
(People
v.
Demetrulias
(2006)
See footnote, ante, page 772.