Opinion
* Plaintiff in this medical malpractice action appeals from a summary judgment in favor of the defendants, Modesto City Hospital, John Pfeifer, M.D., an obstetrician and gynecologist (ob/gyn) and Marvin White, M.D., an anesthesiologist. The central issue in the case is whether the procedural preclusion of an expert witness’s testimony at trial by virtue of alleged noncompliance with the provisions of Code of Civil Procedure section 2034 1 (simultaneous exchange of information covering expert trial witnesses) also renders such testimony inadmissible in a pretrial summary judgment proceeding (§ 437c). We will reverse and hold the trial court erred in ruling the expert testimony offered by the plaintiff inadmissible in the summary judgment proceeding.
Facts
On March 4, 1985, defendant Dr. Pfeifer (ob/gyn) performed a dilation and curettage (D&C), laparoscopy and total abdominal hysterectomy on plaintiff Linda Kennedy at defendant Modesto City Hospital. Defendant Marvin White, M.D., was responsible for administering anesthesia during the surgical procedures. Plaintiff alleged defendants negligently treated her in positioning her during the D&C, causing her to sustain paralysis and weakness of her right leg and injury to her right femoral nerve, sapheous nerve and lumbar plexus.
On February 23, 1988, a trial in the matter was calendared for May 16, 1988. On March 18, 1988, on motion of the defendant hospital, the court continued the trial date to July 21, 1988. A demand was made for an exchange of information regarding the parties’ expert trial witnesses pursuant to section 2034, subdivision (a). On March 17, defendant hospital served its list of expert witnesses. On March 28, plaintiff and the defendant doctors served their respective lists of expert witnesses. Though the demand for an
Plaintiff listed the names of one general surgeon, one orthopedic surgeon, and two neurologists. An accompanying declaration of plaintiff’s counsel established: these doctors were treating doctors after the surgery; counsel had not talked with them; and he intended to subpoena them for trial. Further, the doctors would “testify as to standard of care in positioning the patient in this particular surgery . . . .”
Defendant doctors designated the names of five physicians who would testify as to the standard of care, including, in addition to defendants themselves, an anesthesiologist, Morley Singer, M.D., and an ob/gyn, Dr. Norman Wheeler, M.D.
On April 7, pursuant to section 2034, subdivision (h), plaintiff filed a supplement to her expert witness list to include, in relevant part, an ob/gyn, Ed Smith, M.D. According to an accompanying declaration of plaintiff’s counsel, consistent with section 2034, subdivision (f)(2), Dr. Smith would “testify generally as to nerve and back injuries from positioning of patients during surgery in the lithotomy position and generally in surgery and recovery and will testify specifically as to standards of care for proper positioning to avoid injury as to doctors and nurses . . . . ” The declaration set forth the other information required by section 2034, subdivision (f)(2). Each of the defendants filed objections to plaintiff’s supplement.
Thereafter, defendant doctors filed a motion for summary judgment in which they claimed there was no triable question on the issue of negligence. They relied on the declarations of their designated ob/gyn and anesthesiology experts as supporting proof. Defendant hospital joined in the motion. 2
In relevant part, defendant doctors alleged as undisputed material facts: their care and treatment of plaintiff met the standard of care applicable to their respective medical specialties in 1985; and the injury allegedly suffered by plaintiff was the type of injury “which ordinarily occurs in the absence of anyone’s negligence.”
In opposition to the summary judgment motion, plaintiff filed declarations, from first a nondesignated ob/gyn expert, Dr. John Mast, and later her designated ob/gyn expert, Dr. Smith. Relying on a res ipsa loquitur theory and the doctors’ declarations, plaintiff claimed there was a triable
Specifically, based on his familiarity with D&C operations and review of plaintiff’s medical records, Dr. Smith in relevant part offered the following medical opinions: “That the nerve injuries reported in the medical records in this case are extremely rare following said operative procedures.
“That such injuries in these surgeries can occur in the absence of negligence.
“That such injuries in these surgeries do not ordinarily occur in the absence of negligence.
“The frequency of these surgeries compared to the rarity of such injuries indicates that something unusual or different was done or happened in the subject surgery on Mrs. Kennedy.
“The positioning of the patient is a joint responsibility of the anesthesiologist, the surgeon and the operating and recovery room nursing staff in such surgery and recovery.
“That the patient, Linda Kennedy, did suffer some type of positioning injury in the subject surgery or in the recovery room or in transit while anesthetized, injury to the nerves involved with the right leg.”
On July 13, 1988, the court granted defendants’ motion for summary judgment. In its minute order, the court found: “Dr. Smith was not timely named as an expert. Therefore, his declaration in support of opposition to Motion for Summary Judgment cannot be considered, [fl] An expert named under the provisions of Section 2034(h) of the Code of Civil Procedure is one to be called as an expert to express an opinion on a subject to be addressed as [s/c] a named adverse expert.” In its order for entry of summary judgment, the court added: “The court finds Dr. Smith was not timely named as an expert. Therefore, his Declaration in support of opposition to Motion for Summary Judgment cannot be considered.
“A supplemental expert named under the provisions of Section 2034(h) of the Code of Civil Procedure is one to be called as an expert to express an opinion on a subject to be addressed by a named adverse expert.”
There is no dispute as to the facts. It is clear the court granted defendant’s motion for summary judgment because it excluded consideration of Dr. Mast’s and Dr. Smith’s declarations. It is equally clear that had it considered these declarations, the court would have properly denied the motion. The court excluded consideration of the declarations, not because of any evidentiary objection under the Evidence Code, but due to the procedural bar posed by section 2034. 3
Pursuant to section 2034, after an initial trial date is set in a matter, any party may, without leave of court, demand all parties simultaneously exchange information concerning each other’s expert trial witnesses. (See § 2034, subd. (a).) The demand shall be made no later than the 10th day after the initial trial date has been set, or 70 days before the trial date, whichever is closer to the trial date. (§ 2034, subd. (b).) The specified date of exchange shall be 50 days before the initial trial date, or 20 days after the demand, whichever is closer to the trial date. (§ 2034, subd. (c).) The section lists the information required to be included in the expert designation and provides for supplementation of the list without leave of court under the conditions specified within 20 days of the exchange date. (§ 2034, subd. (h).)
The section also provides for later designation by leave of court (§ 2034, subd. (k)) or pursuant to a motion to submit tardy information (§ 2034, subd. (1)). The ability to submit later expert information under both of these subdivisions is circumscribed.
Failure to comply with section 2034 will result in the exclusion from evidence at trial of the expert opinion of the person who has not been properly designated under the section (§ 2034, subd. (j)).
The cardinal rule in construing a statutory scheme is to discover and give effect to the intent of the Legislature. (§ 1859;
Mercer
v.
Perez
(1968)
The summary judgment statute (§ 437c) comes into operation when any party contends “the action has no merit or that there is no defense thereto” (§ 437c, subd. (a)). Except as ordered by court, upon good cause shown, a summary judgment motion cannot be made until “after 60 days have elapsed since the general appearance in the action” (§ 437c, subd. (a)), and must be made on 28 days’ notice. “[T]he motion shall be heard no later than 30 days before the date of trial ....”(§ 437c, subd. (a).) The affidavits or declarations “shall set forth admissible evidence.” (§ 437c, subd. (d).)
Thus, there does not appear to be any coordination between the summary judgment proceeding in section 437c and the expert witness exchange provisions of section 2034. Indeed, absent an order of the trial court, the window period for making a demand for and exchanging expert witness information under section 2034, which is keyed to the initial trial date, would ordinarily preclude making and determining a motion for summary judgment after the initial and supplementary exchanges have been completed. The summary judgment motion was noticed and heard in this case within this time frame only because the trial judge continued the initial trial date. Normally a summary judgment will be heard and determined before the exchange of expert witness information is completed on evidence determined to be admissible or inadmissible under the Evidence Code. Thus, considering the timing alone, there is no ascertainable intent to make the exclusion of expert testimony applicable to a summary judgment proceeding.
Throughout section 2034, terms such as “trial date,” “trial witnesses,” “evidence at the trial,” “trial of the action,” and “testify at trial” are used; this choice of words indicates the drafters had in mind the applicability of its provisions to the actual trial. Some examples will make this clear: “After
“Any party may demand a mutual and simultaneous exchange . . . of a list containing the name and address of any natural person . . . whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” (§ 2034, subd. (a)(1).)
“If any expert designated by a party . . . has been retained ... for the purpose of forming and expressing an opinion ... in preparation for the trial of the action ....”(§ 2034, subd. (a)(2).)
“Any party may make a demand for an exchange of information concerning expert trial witnesses” no later than a specified time “before that trial date ....”(§ 2034, subd. (b).)
“A list ... of any person whose expert opinion that party expects to offer in evidence at the trial.” (§ 2034, subd. (f)(1)(A).)
“A representation that the expert has agreed to testify at the trial.” (§2034, subd. (f)(2)(C).)
“[I]ncluding any opinion and its basis, that the expert is expected to give at trial.” (§ 2034, subd. (f)(2)(D).)
Very telling is the express language of the exclusionary provision contained in section 2034, subdivision (j). It states in relevant part: “ ... on objection of any party . . . the trial court shall exclude from evidence the expert opinion . . . .”
We infer from these provisions the Legislature had in mind the exclusion of expert testimony offered by noncomplying parties at trial, not at a pretrial proceeding.
Admissibility at trial is not necessarily the same as admissibility at a summary judgment proceeding. For example, a declaration is not admissible at trial, but is expressly made admissible by section 437c in a summary judgment proceeding. So too, evidence made inadmissible at trial by reason of the express procedural bar contained in section 2034, subdivision (j), does not necessarily make the evidence inadmissible in a summary judgment proceeding.
The purpose of the summary judgment statute is to eliminate the necessity of trying sham and meritless cases (6 Witkin, Cal. Procedure (3d
Further, the plaintiff, through her properly designated experts or through examination of defendants’ experts, may be able to present sufficient evidence to go to the trier of fact. Thus, in addition to the other reasons stated, it would be unfair to permit a procedural bar applicable to the trial, to knock out plaintiff’s case at the summary judgment stage. The Legislature could not have intended that result. We hold the trial judge improperly excluded the testimony of both Dr. Mast and Dr. Smith.
The judgment is reversed. Costs to appellant.
Martin, Acting P. J., and Stone (W. A.), J., concurred.
Respondents’ petition for review by the Supreme Court was denied September 13, 1990.
Notes
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Because our discussion requires frequent reference to various parts of section 2034 and their interrelationship, we attach a copy of the entire section as an appendix.
The trial court twice continued the matter, leading to significant modifications of the motion and the opposition. A chronology of those events, however, is unimportant to the issue before us.
We seriously doubt the trial judge correctly excluded Dr. Smith’s declaration. While it is unnecessary to decide the issue, it bears pointing out plaintiff’s initially designated experts were not retained. Under that scenario, section 2034 only required plaintiff to state the expert’s name and address. (§ 2034, subds. (a)(2) & (f)(1)(A).) If the experts had been retained, plaintiff would have had to include in an accompanying declaration the information required by section 2034, subdivision (f)(2). By the express terms of section 2034, subdivision (h), if the expert in the initial designation is not retained, a timely supplementary designation may be made of an “expert who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party has not previously retained an expert to testify on that subject.” (Italics added.) The record shows that plaintiff did not retain Dr. Smith until April 7, a date after the initial exchange. Thus, it appears plaintiff complied with the literal terms of the statute. It also appears after the supplementary designation of Dr. Smith, defendants took his deposition. No prejudice to the defendants appears by reason of plaintiff’s designation on April 7, 10 days after the initial exchange.
The question we do not reach is, does the intent and purpose of the statute to engage in a simultaneous change vitiate the express language of the statute? Legislative clarification is desirable.