Fatica v. Superior Court
| Decision Date | 13 June 2002 |
| Docket Number | No. G030753.,G030753. |
| Citation | 99 Cal.App.4th 350,120 Cal.Rptr.2d 904 |
| Parties | Tom FATICA et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent; Thomas Liljegren, Real Party In Interest. |
| Court | California Court of Appeals Court of Appeals |
Wentworth, Paoli & Purdy and William M. Delli Paoli for Petitioners.
No appearance for Respondent.
Silva, Clasen & Raffalow and Tioni A. Phan for Real Party in Interest.
Petitioners Tom and Nancy Fatica brought a personal injury action against Thomas Liljegren for injuries sustained in an automobile accident. Trial in this matter started this past Monday, June 10, 2002. Yesterday, June 12, 2002, petitioners filed this petition. We immediately stayed trial on the filing of the petition because it appeared from the petition that the superior court had erred in granting Liljegren's motion in limine. In addition, the order deprived petitioners of a fair and reasonable opportunity to present a substantial portion of their case, and petitioners would be severely prejudiced if we did not intervene. (See Omaha Indemnity Co. v. Superior Court (1989) 209 Cal. App.3d 1266, 1273-1274, 258 Cal.Rptr. 66.)
The pertinent facts are not complicated. Several months before trial, petitioners went to an orthopedic surgeon, Richard Mulvania, for treatment and ultimately back surgery. In accordance with Code of Civil Procedure section 2034, Mulvania was timely designated by petitioners as one of the expert witnesses they intended to call at the time of trial. (The other three experts are a vocational specialist expected to testify regarding loss of earnings, and two who are expected to testify regarding the accident and related events.)
Mulvania's deposition was taken on May 21, 2002. Real party in interest was permitted to fully depose him about his diagnosis, treatment, and opinion as to causation. Near the beginning of his deposition, though, Mulvania conceded he had not reviewed any of petitioners' records regarding prior medical treatment. He admitted receiving those documents, and that he intended to review them for trial; but, he pointed out that he testified "as little as possible" for his patients and had not had sufficient opportunity to review them. Surprisingly, counsel for real party in interest did not request that the deposition be continued, or that he be allowed to further depose Mulvania after he had reviewed these documents. Instead, he waited until the day of trial to file a motion in limine to prohibit Mulvania from testifying at all. Counsel's argument was that he was "unable to obtain complete and meaningful expert witness testimony" from Mulvania "due to his failure to review plaintiffs' medical records."
The court deferred a final ruling on the motion in limine, setting instead an Evidence Code section 402 hearing for the second day of trial. Although we were not provided with a reporter's transcript of that hearing, petitioners tell us Mulvania testified that he "reviewed the same additional documents after his deposition that he said he would," that after this review "none of his opinions expressed at the deposition had changed or been affected as a result of the additional review," and that "his testimony would not differ from his deposition testimony as a result of the review." Real party in interest does not dispute that this was the tenor of Mulvania's testimony.
Following the hearing, the court ruled that Mulvania would not be allowed to testify as to any opinions expressed at his deposition; he could only testify as a percipient witness. Petitioners tell us the court limited Mulvania's testimony "to what he heard, saw and did." The court denied petitioners' request for a temporary stay to permit writ review of the court's order. Petitioners' offer that real party in interest further depose Mulvania "to avoid any perceived prejudice" was rejected by counsel, and petitioners' request for a short adjournment to permit Mulvania to be further deposed was denied by the court.
It is clear that Mulvania is a treating physician. Indeed, it is a point real party in interest does not dispute. In Schreiber v. Estate of Riser (1999) 22 Cal.4th 31 at page 35, 91 Cal.Rptr.2d 293, 989 P.2d 720, our Supreme Court stated that: Later in its opinion, at page 49, the Supreme Court held: ...
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