Opinion
Although a designation of
retained experts
must bе accompanied by the “expert witness declaration” described in Code of Civil Procedure section 2034, subdivision (f), no expert declaration is required for a
treating physician
who will be called to testify at trial as an expert witness.
(Bonds v. Roy
(1999)
Facts
In 1996, Kathy Kalaba sued Robert Gray, M.D., for medical malpractice, alleging that in 1989 he had negligently failed to find an adrenal tumor. Dr. Gray answered and discovery ensued. In July 1999, in response to Dr. Gray’s demand for the exchange of expert witness information, Ms. Kalaba served her designation of expert witnesses. (Code Civ. Proc., § 2034.) 1 As relevant to this appeal, Ms. Kalaba identified two medical experts (Alan Steinberg, M.D., and Barry Pressman, M.D.) and “reserve[d] the right to call as potential experts any and all [of her] past or present exаmining and/or treating physicians . . . .” In an accompanying declaration, Ms. Kalaba’s lawyer described Drs. Steinberg’s and Pressman’s qualifications, stated as to each that he might “be called to testify on the issues of breach of the standard of care, causation and damages,” and set forth the doctors’ hourly fees for deposition testimony. Neither the designation nor the accompanying declaration identified any of Ms. Kalaba’s past or present treating physicians. In September, Ms. Kalaba served a “De-Designation of Expert Witness” in which she “de-designate[d]” Dr. Pressman and stated that she would “provide the name of her new radiology expert as soon as possible.” Dr. Gray dеposed all of the experts designated by Ms. Kalaba, but did not depose her treating physicians.
On January 3, 2001, the parties answered ready for trial. On the same day, Ms. Kalaba filed a list of witnesses that included Thomas Boswell, M.D., and Dr. Pressman. Dr. Gray moved to exclude any testimony by Drs. Pressman and Boswell, contending (1) Dr. Pressman had been “de-designated,” and (2) Dr. Boswell had not previously been designated. The trial court granted Dr. Gray’s motion and denied Ms. Kalaba’s oral request to “augment” her designation (but granted her request for a continuance to allow her time to decide whether to “file a writ”). 2
On January 8, Ms. Kalaba’s lawyer faxed a letter to Dr. Gray’s lawyer stating the plaintiff’s position this way: “After due consideratiоn, plaintiff will not be seeking review of the [trial court’s] January 3, 2001 decision granting Dr. Gray’s motion to exclude . . . . [¶] So as to avoid any claim of
When the parties returned to court for trial, Ms. Kalаba told the court she intended to call three of her treating physicians (Drs. Frumowitz, Julian, and Fuchs) to testify about the standard of care. Dr. Gray objected and moved to exclude expert testimony by the three doctors on the ground that they had not been designated as required by section 2034. Dr. Gray’s motion was granted, leaving Ms. Kalaba without any expеrt testimony to prove that Dr. Gray’s failure to find the tumor was below the standard of care. Dr. Gray’s motion for nonsuit was granted.
Discussion
Ms. Kalaba contends the trial court should have permitted her treating physicians to testify as experts. We disagree.
A.
Under section 2034, subdivision (a), any party may demand the exchange of expert witness information. In response, 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, subd. (f)(1)(A), (B).) If a designated expert has been retained for the purpose of forming and expressing an expert opinion at trial, the designation must also include or be accompanied by a declaration signed by the attorney for the party designating the expert and setting forth a brief narrative statement of the expert’s qualifications, the general substance of the testimony the expert is expected to give, a representation that the expert will be sufficiently familiar with the pending action to submit to a deposition, and a statement of the expert’s hourly or daily fee. (§ 2034, subd. (f)(2)(A)-(E).)
Subdivision (j) of section 2034 provides that, except when a motion for relief has been granted, and on objection of any party who has himself timely complied with the statute, “the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (1) List that witness as an expert. ... [¶] (2) Submit an expert witness declaration. [¶] (3) Produce reports and writings of expert witnesses .... [¶] (4) Make that expert available for a deposition. . . .” (Italics addеd.)
B.
In
Bonds v. Roy, supra,
In Schreiber v. Estate of Kiser, supra, 22 Cal.4th 31, the issue was whether “a trial court may preclude a treating physician, designated as an expert witness, from testifying at trial regarding causation if no expert witness declaration was submitted on his behalf.” (Id. at p. 33.) The Supreme Court held that section 2034 does not require the submission of an expert witness declaration for a treating physician, emphasizing at the outset that “the treating physicians in this case were designated as expert witnesses,” as required by subdivisions (a)(1) and (f)(1)(A) of section 2034, which requires a “ ‘list setting forth the name and address of any person whose expert opinion that party expects to offer in evidеnce at the trial.’ . . . Thus, defendants were on notice at the time of the designation that plaintiff intended to offer opinion testimony by her treating physicians. . . .
“[T]he declaration requirement applies to only ‘certain’ expert witnesses, i.e., those who are parties, employees of parties, or are ‘retained by a party fоr the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial. . . .’ (§ 2034, subd. (a)(2);
Bonds v. Roy, supra,
“Moreover, whether a retained expert will testify need not be revealed until shortly before trial. [Citation.] It makes sense in this situation that the Legislature would require the person presenting the expert to submit an expert witness declaration. The information contained in this declaration allows the parties to аssess within a short time frame ‘whether to take the expert’s deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area.’ [Citation.]
“By contrast, the identity and opinions of treating physicians are not privilеged. Rather, because they acquire the information that forms the factual basis for their opinions independently of the litigation, they are subject to no special discovery restrictions. [Citations.] They can be identified early in the litigation through interrogatories, production of the plaintiff’s medical records, and completion оf case questionnaires which by statute expressly ask for information regarding ‘treating physicians.’ [Citations.] Indeed, defendants have a strong incentive to depose treating physicians well prior to the exchange of expert information to ascertain whether their observations and conclusions support the plaintiff’s allegations. [Citation.] Conceivably, some treating physicians may ultimately become defense witnesses. [¶] . . . [¶]
“[T]he Civil Discovery Act of 1986 places litigants on roughly equal footing. To the extent a physician is retained ‘for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action,’ his identity and opinions are generally privileged unless he testifies. (§ 2034, subd. (a)(2).) Should the physician testify, an expert witness declaration is required. On the other hand, to the extent a physician acquires personal knowledge of the relevant facts independently of the litigation, his identity and opinions based on those facts are not privileged in litigation presenting ‘an issue concerning the condition of the patient.’ [Citations.] For such a witness, no expert declaration is required, and he may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience. This may well include opinions regarding causation and standard of care because such issues are inherеnt in a physician’s work. An opposing party would therefore be prudent to ask a treating physician at his deposition whether he holds any opinions on these subjects, and if so, in what manner he obtained the factual underpinning of those opinions.” (Schreiber v. Estate of Kiser, supra, 22 Cal.4th at pp. 34-39, most italics added, footnote omitted.)
C.
The rule we distill from
Bonds
and
Schreiber
is this: Retained experts must be designated, and the designation must be accompanied by the “expert
witness declaration” described in section
Read together, the statutory scheme and the Supreme Court’s discussion in Schreiber make it clear that a party who intends to call a treating physician as an expert must identify that physician in her designаtion of experts—and we have not found any authority to support Ms. Kalaba’s contention that her discovery responses ought to be viewed as substantial compliance with the specific requirements of section 2034. Discovery responses on the one hand, and expert designations on the other, serve different purposes. Intеrrogatories and deposition questions are intended to elicit information reasonably calculated to lead to the discovery of admissible evidence, not just admissible evidence and not just the names of witnesses who will actually testify at trial. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) ¶¶ 8:703 et seq., 8:982 et seq.) Expert designations are demanded and exchanged after nonexpert discovery has been completed, so that the parties may conclude their final preparations for trial. (§ 2034, subd. (c) [unless ordered otherwise, the specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of thе demand, whichever is closer to the trial date]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 8:1624, 8:1627 [“Without some procedure to discover the identities and opinions of experts hired shortly before trial, there would be flurries of last-minute discovery attempts and motions for continuance of the trial”].)
Further complications arise in the medical malpractice context, whеre there may be no reason for a defendant to depose every treating physician, notwithstanding the need to depose all experts. Although the Supreme Court has suggested that “[a]n opposing party would ... be prudent to ask a treating physician at his deposition whether he holds any opinions on [the matters about which expеrt testimony will be required at trial], and if so, in what manner he obtained the factual underpinning of those opinions”
(Schreiber v. Estate of Kiser, supra,
Disposition
The judgment is affirmed. Dr. Gray is awarded his costs of appeal.
Spencer, P. J., and Ortega, J., concurred.
Notes
All section references are to the Code of Civil Procedure.
At the time of Ms. Kalaba’s oral motion to augment, her lawyer told the court that he had “not had the opportunity ... to review [his] files and see whether or not there was a subsequent designation made.” No explanation was offered for counsel’s ignorance or for his failure to determine earlier whether a motion to augment would be necessary.
Later, Ms. Kalaba did file a petition for a writ of mandate, but it became moot before we had an opportunity to rule on it.
In this case, for example, there are 18 nonparty physicians named on Ms. Halaba’s witness list.