Plaintiff Robert Dozier appeals from a judgment in favor of defendants Michael R. Shapiro, M.D., and Michael R. Shapiro, M.D., Inc. (collectively Dr. Shapiro), in his action against them for medical malpractice. Plaintiff contends that the trial court committed reversible error by precluding his expert from testifying at trial that Dr. Shapiro's treatment of Dozier fell below the standard of care, resulting in the dismissal of the action due to Dozier's inability to prove the elements of his claim. We conclude that the trial court committed no prejudicial error.
In an April 2008 complaint, Dozier alleged that Dr. Shapiro and his clinic were guilty of professional negligence in their surgical treatment of Dozier's left knee.
On January 16, 2009, defendants deposed Dr. Eric Zeegen, the physician who performed Dozier's knee replacement, as a treating physician. Dr. Zeegen testified at his deposition that when he treated Dozier after Dr. Shapiro's osteotomy, "it looked like the screw had penetrated into the joint." But when he was asked whether he had formed an opinion that Dr. Shapiro had placed the screw improperly, Dozier's counsel objected: "Calls for speculation, for an expert opinion. He's not being deposed as an expert. [¶] ... [¶] You're asking for an expert opinion. It goes beyond the care and treatment."
After the objection, Dr. Zeegen testified that whether Dr. Shapiro had placed the screw improperly in the first instance, or it had migrated into the joint over a period of time, is "hard to say." That determination would require him "to look at serial x-rays from immediate postoperatively to over the course of time" before Dozier had come to him, an examination Dr. Zeegen had not done. Later in the deposition Dozier's counsel objected to questions about whether Dr. Zeegen's own medical practice included performing high
On February 2, 2009, Dr. Shapiro's counsel served a demand to exchange lists of expert witnesses. Pursuant to Code of Civil Procedure section 2034.210, the demand advised that the list of witnesses "must contain the name and business or residence address of each expert you expect to call in person or through deposition, and you must give a narrative statement of the qualifications of each such expert witness, the general substance of the testimony that each such expert witness is expected to give at the time of trial, and the fee charged by each such expert." It advised (in uppercase font) that a failure to comply with these requirements would constitute a waiver "of your right to call unlisted expert witnesses at the time of trial."
Dozier's February 20, 2009 response to the demand for an exchange of expert witness lists stated "Plaintiff intends to call various treating health care providers as expert witnesses at trial," who "are regarded as percipient witnesses not retained experts." Dr. Zeegen was among the nine "nonretained percipient experts whose testimony may be elicited at the time of trial" listed in Dozier's response. The response went on to explain that "[b]ecause treating physicians and other healthcare providers are not `retained' expert witnesses within the meaning of
On May 21, 2009, Dozier filed a joint list of proposed witnesses, which listed three expert witnesses—not including Dr. Zeegen—whose testimony would include the subjects of "liability, causation and damages." Dr. Zeegen was identified on the list as a "Treating Doc/Expert" who would testify only on "the need for surgery as well as the need for future surgeries, knee revisions and replacements."
Trial was delayed by various circumstances until late February 2010. On May 1, 2009, Dr. Shapiro filed a motion under Kennemur v. State of California (1982) 133 Cal.App.3d 907 [184 Cal.Rptr. 393] (motion in limine No. 6), seeking to limit the trial testimony of Dozier's experts (including Dr. Zeegen) to the opinions rendered at their depositions. After argument over a period of days, on February 11, 2010, the trial court granted motion in limine No. 6 to exclude Dr. Zeegen's testimony to the extent his opinions would be based on information received after his deposition and not from information he obtained in the course of his treatment of Dozier. That ruling was based on the court's conclusion that Dr. Zeegen's opinions at trial would be based on information he had been provided after his deposition. By providing that information and engaging Dr. Zeegen to provide those opinions, the court concluded, Dr. Zeegen's status was transformed from that of simply a treating physician into that of a retained expert. The ruling limited the testimony of Dr. Zeegen to the opinions he had formulated at the time of his deposition and, specifically, it precluded him from testifying to anything based on information provided to him after his deposition.
Because Dozier's counsel represented that Dr. Zeegen had testified at his deposition that Dr. Shapiro had breached the standard of care, on the morning trial was to commence the court held a hearing under Evidence Code section 402 and voir dire examination of Dr. Zeegen, to determine whether Dr. Zeegen's deposition testimony (and therefore the testimony he would be permitted to offer at trial) could satisfy Dozier's burden of proof on the standard of care issue.
After reviewing Dr. Zeegen's deposition testimony in detail, the trial court concluded that at his deposition Dr. Zeegen had testified that he had not then formulated an opinion about either whether Dr. Shapiro's treatment fell below the standard of care, or the extent to which Dozier's osteoarthritic condition had resulted from Dr. Shapiro's treatment. Having read the deposition, the court found that "there isn't anything there that can go to the jury."
Finding that Dozier's request that he formulate opinions and testify to opinions based on materials he had been provided only after his deposition (not in connection with his treatment of Dozier) had transformed Dr. Zeegen into a retained expert, the court held that Dozier's counsel was obligated to notify opposing counsel of the change in Dr. Zeegen's status—which he had not done.
The appeal contends that the trial court abused its discretion by dismissing the case because Dr. Zeegen's status as a treating physician obviated any expert witness declaration from him, and in any event Dozier had substantially complied with the expert witness declaration requirement; because Dozier had not unreasonably failed to comply with the expert witness exchange requirements (and the court made no finding that he had); and because defendants had failed to question Dr. Zeegen about his opinions on the standard of care issue at his predesignation deposition, and in any event Dr. Zeegen had testified at his deposition that Dr. Shapiro's treatment of Dozier breached the applicable standard of care. These contentions have no merit.
We review the trial court's rulings for abuse of discretion. (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 25 [9 Cal.Rptr.3d 486] [abuse of discretion standard governs rulings on admissibility of expert testimony].)
Dozier's appeal contends that "Dr. Zeegen was not asked whether he had an opinion as to whether Dr. Shapiro complied with the applicable standard of care or, if he did have an opinion, to state his opinion. Further Dr. Zeegen's testimony, reasonably construed, stated an opinion that Dr. Shapiro breached the applicable standard of care." From these conclusions Dozier implies that the defense either had adequate notice of the opinions to which Dr. Zeegen would testify at trial, or that if it did not, it was their own fault. The record does not support these contentions.
The opening brief cites what it represents to be "all occasions on which [Dr. Zeegen] was asked to state opinions, directly or indirectly, regarding care Dr. Shapiro provided" to Dozier. It characterizes Dr. Zeegen's testimony as containing opinions that (1) the screw was in Dozier's knee joint; (2) Dr. Shapiro placed the screw either in the joint or very close to the joint; (3) Dr. Shapiro's responsibility, as surgeon, was to place the screw so that it did not migrate into the joint; and (4) the screw's presence in the joint probably contributed to Dozier's arthritis, which had caused Dozier's need for knee-replacement surgery.
In addition, the remainder of Dr. Zeegen's testimony precluded any possibility that Dr. Zeegen was then testifying to an expert opinion that Dr. Shapiro's placement of the screw had been below the applicable standard of care. And Dozier's counsel's objections and positive representations informed counsel that Dr. Zeegen's testimony to such a conclusion would not be offered—at least, not without his designation as a retained expert (which never occurred).
Dr. Zeegen testified at his deposition that he had not been retained as an expert witness in this litigation, and that all his opinions "are based on [his] treatment provided to this patient, as well as [his] experience and qualifications...." He testified that in order to determine whether the screw had been initially placed in the joint or had later "pushed through," Dr. Zeegen "would need to look at serial x-rays" that he had not examined at the time of his deposition—indicating that without further information he could not form an opinion as to the propriety of Dr. Shapiro's treatment. Other than the opinions expressed in his treatment notes. Dr. Zeegen testified, he had no other opinions regarding the medical or surgical treatment given by Dr. Shapiro at the time of Dozier's surgery.
At the trial court's hearing under Evidence Code section 402, evaluating the sufficiency of plaintiff's anticipated evidence on the standard of care issue, Dr. Zeegen confirmed that he "did not have enough information at [his deposition] to form an opinion or impression as to whether or not the standard of care had been met or breached by Dr. Shapiro back in 2007." At his deposition, he confirmed, he "did not express any criticisms of Dr. Shapiro's care and treatment" of Dozier. It was only a year later—after "I was asked to be an expert witness last month, in January of [2010]"—that he had received Dr. Shapiro's medical records and deposition, enabling him to formulate an opinion as to whether Dr. Shapiro's treatment of Dozier had or had not complied with the standard of care.
On this record, the trial court was justified in concluding that Dozier failed to demonstrate at the Evidence Code section 402 hearing either that Dr. Zeegen had testified at his deposition that Dr. Shapiro's treatment had fallen below the standard of care, or that defendants had failed to ask him about his opinions on that subject.
In Easterby, the plaintiff's expert testified at his deposition that he had formulated no opinion that the plaintiff's injury resulted from the defendant's allegedly negligent conduct, and that he had not been asked to testify on that subject at trial. And here, Dr. Zeegen testified at his deposition that he was unable to formulate an opinion as to whether Dr. Shapiro's treatment of Dozier was proper on the basis of the information he had then been provided. The facts of this case differ from those in Easterby v. Clark, in one critical respect: In Easterby, the plaintiffs had informed the defendants' counsel long before trial that the expert would testify at trial to the opinion he had disclaimed at his deposition, that the allegedly negligent event caused the plaintiff to require surgery.
Here, unlike in Easterby, Dozier's counsel did not disclose that Dr. Zeegen would testify at trial that Dr. Shapiro's treatment of Dozier fell below the standard of care. His response to the expert witness exchange, served February 20, 2009, listed nine doctors whose expert testimony "may be elicited at the time of trial," identifying them as "treating physicians" and "not retained experts." The response went on to say that no expert witness declaration was required for any of these expert witnesses, because they are not "`retained' expert witnesses" within the code's meaning. Finally, the response stated that with respect to those of the listed experts who had treated Dozier's knee condition, it was anticipated that those unspecified experts "will testify about standard of care," among other topics; but it did not disclose the substance of Dr. Zeegen's anticipated testimony on any of those subjects; it did not disclose that his testimony on those subjects would be wholly different from his deposition testimony (where he denied having
The issue here is not whether an expert witness declaration is necessarily required when a treating physician testifies as an expert; it is not. (Schreiber v. Estate of Kiser, supra, 22 Cal.4th at p. 38.) As plaintiff's counsel repeatedly represented, Dr. Zeegen's role at his deposition was that of a treating physician, nothing more. "[H]e's not being deposed as an expert.... He's here to answer questions about care and treatment of Mr. Dozier in connection with the knee replacement, end of story...."
A treating physician unquestionably may be designated as an expert, and may be qualified to testify (given an appropriate factual basis) on the subject of a defendant physician's adherence to the applicable standard of care. (Schreiber v. Estate of Kiser, supra, 22 Cal.4th at p. 39.) The code does not require an expert declaration with respect to a witness testifying as a treating physician, even if that testimony will include opinions with respect to subjects such as causation and standard of care. (Ibid.) Thus, to the extent that Dozier's counsel intended to present Dr. Zeegen's testimony only on the subjects on which he was qualified to testify by virtue of his physician-patient relationship with Dozier, the code required no disclosure of the anticipated substance of that testimony.
Dozier thus was entitled to present Dr. Zeegen's testimony as an expert on the basis of the facts he had learned and opinions he had formulated in connection with his physician-patient relationship and treatment of Dozier. But at his deposition, Dozier's counsel objected to any examination of Dr. Zeegen about the applicable standard of care and Dr. Shapiro's adherence
In section 2034.210, the Legislature determined that the information required by the expert witness declaration "is unnecessary for treating physicians who remain in their traditional role." (Schreiber v. Estate of Kiser, supra, 22 Cal.4th at p. 38.) But when Dr. Zeegen received additional materials from counsel after his deposition, to enable him to testify to opinions about Dr. Shapiro's adherence to the standard of care—a subject on which he had formed no opinions in connection with his physician-patient relationship with Mr. Dozier—his role was not that of a treating physician, but became that of a retained expert. And as a retained expert, Dozier was required to disclose the information called for in section 2034.210, subdivision (b), including a summary of the substance of Dr. Zeegan's anticipated testimony. (§ 2034.210, subd. (b).)
Dozier's counsel transformed Dr. Zeegen, a treating physician, into a retained expert by giving him additional information and asking him to testify at trial to opinions formed on the basis of that additional information. But Dozier did not designate him as a retained expert, and did not disclose the substance of his anticipated testimony. As the trial court concluded, "I don't think that that is proper under either of these two cases [(Kalaba v. Gray (2002) 95 Cal.App.4th 1416 [116 Cal.Rptr.2d 570] and Schreiber v. Estate of Kiser, supra, 22 Cal.4th 31)], and I don't think it is within the spirit, the letter and spirit of the Discovery Act on expert witnesses."
Quoting from the opinion in Bonds v. Roy, supra, 20 Cal.4th 140, Dozier correctly identifies that the purpose of these provisions is "to give fair notice of what an expert will say at trial." The code's requirements force this result in order to "allow[] the parties to assess 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." And as the court noted in Kabala v. Gray, supra, 95 Cal.App.4th at page 1424, "there are many medical malpractice cases in which an effort to depose all treating physicians would be both unnecessary and prohibitively expensive." By requiring the parties to provide a summary of each potential expert's anticipated testimony, the expert witness designation procedures provide the parties with the ability to intelligently determine which of the opposing party's potential expert witness physicians do, and do not, need to be deposed before trial.
Defendants took Dr. Zeegen's deposition as a treating physician on January 16, 2009. Dr. Zeegen testified that he was unable to determine whether Dr. Shapiro's treatment of Dozier fell below the applicable standard of care—whether "the screw had been placed improperly by Dr. Shapiro"—and that in order to do so "I would need to look at serial x-rays from immediate postoperatively to over the course of time . . . ." He expressed no other opinions on that subject, and disclaimed having any other opinions. And Dozier's counsel went so far as to object, representing that the subject was not one on which Dr. Zeegen's expert opinions were being offered. Whether Dr. Shapiro's placement of the screw was improper, he objected, "[h]as nothing to do with when he was treating him or what he did as far as the care and treatment goes." Dr. Zeegen's deposition therefore was taken as a treating physician only, and not as a retained expert.
About two weeks later, on February 2, 2009, defendants served their demand for an expert witness exchange under section 2034.210. Plaintiff's response did not inform them of any change in Dr. Zeegen's status, or in his testimony. It did not "give fair notice of what [Dr. Zeegen] will say at trial"; and because it did not do so, it did not afford defendants an opportunity "to
The response therefore only reinforced the strong message that had been communicated at Dr. Zeegen's deposition, that Dr. Zeegen was not among the physicians from which plaintiff would obtain evidence about the standard of care issue. From the response, defendants' counsel could only have concluded that Dr. Zeegen would not be among the listed treating physicians from whom plaintiff might seek opinion testimony on that subject. No other conclusion would be consistent with the information provided.
In Easterby v. Clark, supra, 171 Cal.App.4th 772, we held that the trial court abused its discretion by precluding the testimony of the plaintiffs' expert and dismissing the case for the plaintiffs' resulting inability to prove the essential element of causation. The same legal principles require us to conclude in this case that the trial court properly barred Dozier's expert from testifying on the issue of standard of care, and then dismissed the case due to Dozier's resulting inability to prove that essential element of his malpractice cause of action. In Easterby, a few months after the plaintiffs' designated expert witness had testified at his deposition that he had no opinion on the causation issue, and about three months before trial, the plaintiffs informed the defendants' counsel that the expert would testify at trial that the allegedly negligent act had caused the need for surgery; yet the defendants did not seek to redepose the expert.
The judgment is affirmed. Defendants to recover their costs.
Rothschild, Acting P. J., and Johnson, J., concurred.
