Schreiber v. Estate of Kiser

• Decision Date: 30 December 1999
• Docket Number: No. S075914.,S075914.
• Court: California Supreme Court
• Parties: Faith Dawn SCHREIBER, Plaintiff and Appellant, v. ESTATE OF Donald Wayne KISER et al., Defendants and Respondents.

91 Cal.Rptr.2d 293

22 Cal.4th 31

989 P.2d 720

Faith Dawn SCHREIBER, Plaintiff and Appellant, v. ESTATE OF Donald Wayne KISER et al., Defendants and Respondents.

No. S075914.

Supreme Court of California.

December 30, 1999.

Bisnar & Associates, Bisnar & Chase and Brian D. Chase, Newport Beach, for Plaintiff and Appellant.

Law Office of Ian Herzog, Ian Herzog, Evan D. Marshall, Anne G. Koza, Van Nuys; Douglas Devries, Sacramento; Roland Wrinkle; Harvey R. Levine; Robert Steinberg, Laguna Beach; Thomas G. Stolpman, Long Beach; William D. Turley, San Diego; Mary E. Alexander; Joseph Harbison III, Sacramento; Bruce Broilett; Wayne McClean, Woodland Hills; Leonard Sacks; Tony Tanke, Redwood City; Lea-Ann Tratten; Steven Kleifield, Los Angeles; David Rosen; Moses Lebovits, Los Angeles; Christine Spagnoli; James Sturdevant, San Francisco; Daniel Smith; Deborah David; Lawrence Drivon, San Joaquin; Thor Emblem, Escondido; Rick Simons, Hayward; and David Casey; Jr., for Consumer Attorneys for California as Amicus Curiae on behalf of Plaintiff and Appellant.

Michael Maguire & Associates, Steven G. Winder, Costa Mesa, Paul Kevin Wood and Maureen A. Ward for Defendants and Respondents.

BROWN, J.

The issue in this case is whether under Code of Civil Procedure section 2034,¹ which provides for discovery of expert witness information, 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. We conclude section 2034 does not require the submission of an expert witness declaration for a treating physician, and reverse the judgment of the Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Faith Dawn Schreiber was involved in an automobile accident with Donald Wayne Kiser. Schreiber alleged she had suffered neck and back injuries as a result. Kiser subsequently died of causes unrelated to the accident, and Schreiber sued his estate and the City of Huntington Beach.

During discovery, Schreiber designated as expert witnesses, but did not submit expert witness declarations for, seven treating physicians. In response to a motion in limine, the trial court ruled the physicians could "testify as percipient witnesses but not as experts." At trial, Schreiber called two of the designated physicians as expert witnesses. As a result of the court's ruling, these physicians were precluded from opining that Schreiber's injuries were caused by the accident.

The defense stipulated to Riser's negligence. The jury returned a defense verdict, specifically finding Riser's negligence did not cause Schreiber's damages.

The Court of Appeal affirmed. The court stated the ordinary role of a treating physician is to give percipient testimony regarding what he observed, concluded, and did. Once a treating physician offers opinion testimony regarding causation, he exceeds this ordinary role, and becomes a retained expert within the meaning of section 2034, subdivision (a)(2). Thus, an expert witness declaration is required. The court stated, "to the degree that Schreiber's treating physicians were going to be used to show that her particular aches and pains were caused by the auto accident as distinct from some preexisting event, they ... were going to offer opinion, not percipient, testimony. None of Schreiber's experts actually observed the auto accident which ... prompted her suit. Absent the required expert witness declaration the trial judge was thus thoroughly correct to preclude [causation] testimony."

Schreiber's petition for rehearing was denied. We granted her petition for review.

II. DISCUSSION

Under section 2034, subdivision (a), any party may demand the exchange of expert witness information. 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." (Id., subd. (f)(1)(A), (B).)

For an expert witness who "is a party or an employee of a party," or, as relevant here, "has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action" (§ 2034, subd. (a)(2)), "the exchange shall also include or be accompanied by an expert witness declaration...." (Id., subd. (f)(2); Bonds v. Roy (1999) 20 Cal.4th 140, 144, 83 Cal.Rptr.2d 289, 973 P.2d 66 [declaration requirement applies to "certain expert witnesses" (italics added)].) Failure to submit such a declaration may result in exclusion of the expert opinion. (§ 2034, subd. (j)(2).) The question here is whether a treating physician becomes a "retained" expert within the meaning of subdivision (a)(2), requiring the submission of an expert witness declaration, whenever the physician gives opinion testimony. (Id., subds. (a)(2), (f)(2).) For the reasons that follow, we conclude he does not.

At the outset, we note that the treating physicians in this case were designated as expert witnesses. (§ 2034, subds. (a)(1), (f)(1)(A).) By its terms, subdivision (f)(1)(A) requires "[a] list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial." (Italics added.) Thus, defendants were on notice at the time of the designation that plaintiff intended to offer opinion testimony by her treating physicians. Indeed, by definition, an "expert" witness is one entitled to give opinion testimony. Evidence Code section 801 provides that an expert's opinion testimony must generally be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] [b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him...." Thus, a treating physician does not become an expert only when non-percipient opinion testimony is elicited.

As noted, the declaration requirement applies to only "certain" expert witnesses, i.e., those who are 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, 20 Cal.4th at p. 144, 83 Cal.Rptr.2d 289, 973 P.2d 66.) A treating physician generally falls into none of these categories. This is explained in section 2034's legislative history. Prior to the Civil Discovery Act of 1986, a party was required to describe the general substance of the expected testimony of every expert witness. (Former § 2037.3, as amended by Stats. 1982, ch. 1400, § 3, p. 5337.) That is no longer the case. As Professor Hogan, who was the Reporter for the State Bar/Judicial Council Joint Commission on Discovery that proposed the Civil Discovery Act of 1986, states, section 2034, subdivision (a)(1), does "require[] the designation [of] any expert that the parties to the exchange intend to use at trial, even if that expert's knowledge and opinion has been acquired independently of the trial preparation activities of the side designating him." (State Bar/Judicial Council J. Com. on Discovery, Proposed Cal. Civil Discovery Act of 1986, and Reporter's Notes (Reporter's Notes), notes on § 2034, subd. (a)(1), reprinted in 2 Hogan & Weber, Cal. Civil Discovery (1997) appen. C, at p. 455.) Hence, treating physicians who will testify as experts must be listed, as they were in this case. However, unlike former section 2037.3, "[a]lthough any person who will be called at trial to give expert testimony must be included on [this] list ..., the designation of an expert who is an employee of a party or has been specially retained to give expert testimony requires additional disclosure in the form of an expert witness declaration.... The limitation of this additional disclosure duty to employed or retained experts ... makes a slight change in existing law. Since a percipient expert acquires his information independently of the party that expects to be calling him, such expert is more like a fact witness.... [I]t [has been] held that compelled disclosure of the anticipated testimony of fact witnesses constitutes an invasion of the absolute protection given by the work product doctrine to the thought processes of an attorney in preparation for trial." (Reporter's Notes, notes on § 2034, subd. (a)(1), reprinted in 2 Hogan & Weber, Cal. Civil Discovery, supra, appen. C, p. 455.) "Such an expert would be someone who has acquired, independently of the litigation, personal knowledge of relevant facts, and whose training, skill, and experience enables him or her to form an opinion about those facts...." (1 Hogan & Weber, Cal. Civil Discovery, supra, Expert Witness Disclosure, § 10.6, p. 543.)

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 litigation, and which form the factual basis for the medical opinion. The contextual nature of the inquiry is implicit in the language of section 2034, subdivision (a)(2), which describes a retained expert as one "retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action." (Italics added.) A treating physician is not consulted for litigation purposes, but rather learns of the plaintiffs injuries and medical history because of the underlying...