*1418 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 prеsent examining 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 аs possible.” Dr. Gray deposed 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 *1419 “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 wаy: “After due consideration, 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 surprise, once trial does commence, please be advised that plaintiff does intend to subpoena those treating physicians identified by plaintiff in her deposition and/оr in her answers to interrogatories (e.g., Drs. Frumowitz, Julian and Fuchs and perhaps others) and, pursuant to
[Schreiber v. Estate of Kiser, supra,
When the partiеs returned to court for trial, Ms. Kalaba 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 grantеd, leaving Ms. Kalaba without any expert 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 *1420 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 exрert available for a deposition. . . .” (Italics added.)
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 *1421 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 pеrson whose expert opinion that party expects to offer in evidence 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 arе parties, employees of parties, or are ‘retained by a party for 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,
“A treating physician is a percipient expert, but that does not mean that his testimony is limited only to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony. As the legislative history clarifies, what distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff’s injuries that were ultimately the subject of litigatiоn, and which form the factual basis for the medical opinion. . . . [¶] ... [¶] Such a conclusion is also consistent with the discovery statutes as a whole. . . .
“Moreover, whether a retained expert will testify need not be revealed until shortly before trial. [Citation.] It makes sense in this situation that the *1422 Legislature would require the person presenting the expert to submit an expert witness declaration. The informаtion contained in this declaration allows the parties to assess 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 сontrast, the identity and opinions of treating physicians are not privileged. 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, рroduction of the plaintiff’s medical records, and completion of 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 oрinions regarding causation and standard of care because such issues are inherent 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 *1423 witness declaration” described in section 2034, subdivision (f). But treating physicians are not “retained experts” within the meaning of section 2034, and no expert deсlaration is required when a party intends to call a treating physician for the purpose of eliciting expert testimony; it is sufficient if a treating physician is identified by name and address in the proponent’s designation of expert witnesses. Where, as here, the treating physicians are not listed or identified by name but simply referred to in the designation as “all past or present examining and/or treating physicians,” there has been no compliance with the letter or the spirit of section 2034, and the trial court acts within its discretion when it excludes expert testimony by the non-designated doctors.
Read together, the statutory scheme and the Supreme Court’s discussion in Schreiber make it cleаr that a party who intends to call a treating physician as an expert must identify that physician in her designation 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. Discovеry responses on the one hand, and expert designations on the other, serve different purposes. Interrogatories 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, thе specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the 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 motiоns for continuance of the trial”].)
Further complications arise in the medical malpractice context, where 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 ... bе prudent to ask a treating physician at his deposition whether he holds any opinions on [the matters about which expert 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.