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SCHREIBER v. ESTATE OF KISER

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Court of Appeal, Fourth District, Division 3, California.

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

No. G018084.

Decided: November 30, 1998

Bisnar & Associates and Brian D. Chase, Newport Beach, for Plaintiff and Appellant. Michael Maguire and Associates, Steven G. Winder and Paul Kevin Wood, Costa Mesa, for Defendants and Respondents.

OPINION

I

Using medical experts to show the cause of an effect is not new.   In 1742, James Annesley was charged with murder for shooting a poacher.   The case turned on whether Annesley shot the poacher accidentally or intentionally.   Annesley hired a surgeon to testify as an expert witness on his behalf at trial in London's Old Bailey.   The surgeon said that he introduced a probe into the poacher's wound and traced the path of the bullet.   The bullet had not traveled downward, which would have been the case if the gun had been purposefully aimed from the shoulder, as the prosecution's chief witness had testified.   Annesley was acquitted.  (See Landsman, One Hundred Years of Rectitude:  Medical Witnesses at the Old Bailey 1717-1817 (1998) 16 Law. & Hist. Rev. 445, 456-457, 471.)

In the case before us there was also an attempt to use medical experts to show the cause of an effect.   The effect here is numerous aches and pains felt by the plaintiff, Faith Dawn Schreiber, and in particular her neck:  She feels “terrible” neck pain, radiating down into her upper back, between her shoulder blades, down her arms and into her hands.   The alleged cause of these pains was an auto accident in Huntington Beach in 1993 in which Schreiber's car collided with a car driven by Donald Wayne Kiser.   Kiser later died for reasons unrelated to the accident and Schreiber sued his estate, plus the city of Huntington Beach.

During the discovery phase of the case Schreiber designated seven treating physicians as expert witnesses, but failed to provide any kind of narrative statement of the general substance of the testimony they were expected to give.  (See Code Civ. Proc., § 2034, subd. (f)(2)(B).)   In response to a motion in limine, the trial court ruled that the physicians could testify as “percipient witnesses but not as experts.”   That meant they could not formally opine that Schreiber's pains were caused by the accident.   By contrast, the defendants were able to present testimony that Schreiber's neck and shoulder pain and other complaints existed prior to the accident.

After the defense stipulated to Kiser's negligence, the jury returned a defense verdict on the damages issue, specifically finding that Kiser's negligence in operating his car was not the “legal cause” of Schreiber's damages.   Schreiber now appeals from the judgment, arguing that if her treating physicians had been allowed to testify to the causal relationship between her symptoms and the accident, the result might have been different.   As we shall now explain, the trial court was correct in precluding Schreiber's treating physicians from testifying as to the cause of her back and neck troubles.

II

A

 Subdivision (f)(2)(B) of section 2034 of the Code of Civil Procedure requires litigants, in response to a demand for an exchange of information concerning expert witnesses, to provide a “brief narrative statement of the general substance” of an expert's testimony.1  This requirement, however, only applies when the expert is one “described in paragraph (2) of subdivision (a)” of the same statute.  (See § 2034, subd. (f)(2) [“If any witness on the list is an expert as described in paragraph (2) of subdivision (a), the exchange shall also include ․ an expert witness declaration․  This declaration shall contain:  [¶]․  (B) A brief narrative statement of the general substance of the testimony that the expert is expected to give.”].)

For its part, paragraph (2) of subdivision (a) cross-references subdivision (f)(2)(B)'s requirement for “an expert witness declaration” where the witness was retained by a litigant “for the purpose of forming and expressing an opinion in anticipation of litigation.”  (§ 2034, subd. (a)(2) [“If any expert designated by a party under paragraph (1) ․ has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under paragraph (2) of subdivision (f).”] (emphasis added).) 2

The two statutes have engendered a number of relatively recent published decisions exploring various issues that arise when a party seeks to use opinion testimony from a treating physician without first having provided the narrative statement of the general substance of that physician's testimony in response to a demand for an exchange of information concerning expert trial witnesses.   (See Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198, 1202-1204, 272 Cal.Rptr. 324 [plaintiff not required to produce treating physicians designated as “experts” because they were never retained for purpose of forming an opinion];  Brun v. Bailey (1994) 27 Cal.App.4th 641, 658, 32 Cal.Rptr.2d 624 [treating chiropractor could not demand expert witness fee for deposition testimony because he was not asked any questions-other than two, de minimis nonobjected to ones-calling for an expert opinion];  Huntley v. Foster (1995) 35 Cal.App.4th 753, 755-756, 41 Cal.Rptr.2d 358 [it was error for trial court to limit testimony of treating chiropractor and podiatrist to percipient events such as dates of visits and complaints and exclude “expert” testimony such as “prognosis, diagnosis, causation of the injuries, duration”];  Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 126-134, 60 Cal.Rptr.2d 377 [dicta to the effect that it was not error for trial court to preclude two treating physicians from giving opinions as to proper standard of care in cancer case because they were “retained” experts within the meaning of subdivision (a)(2) of section 2034 even though physicians were not retained in anticipation of litigation];  see also Castaneda v. Bornstein (1995) 36 Cal.App.4th 1818, 1828-1829, 43 Cal.Rptr.2d 10 [error for trial court to exclude causation testimony of nontreating expert for whom a narrative statement had been submitted-but which did not mention causation-because subdivision (j) of section 2034 only allows exclusion if there is a total failure to submit an expert witness declaration].)

Two of these opinions, Hurtado and Huntley, would augur reversal in the case before us.   While neither case dealt with proposed causation testimony from a treating physician, both cases suggested that a treating physician, by definition, cannot come within the scope of subdivision (a)(2) of section 2034 because treating physicians-unlike ordinary expert witnesses-are not originally “retained” for the purpose of forming an opinion in anticipation of litigation.   Therefore treating physicians do not come within the literal language of subdivision (a)(2).  (See Hurtado, supra, 222 Cal.App.3d at p. 1203, 272 Cal.Rptr. 324 [plaintiff's counsel did not “retain any of them for the purpose of forming an opinion”];  Huntley, supra, 35 Cal.App.4th at pp. 755-756, 41 Cal.Rptr.2d 358 [beginning discussion portion of opinion with plaintiff's argument using same quote from Hurtado ].)   If the suggestion is correct, then the (f)(2) declaration requirement was never triggered in this case.

In that regard it would also make no difference that Schreiber sought opinion testimony from her treating physicians.   The implication of both cases is that opinion testimony from an expert treating physician does not trigger the need for an expert witness declaration.   Thus, in Hurtado the court ruled that the plaintiff was not required to produce her treating physicians for deposition even though her counsel intended to ask them questions at trial that might call for the rendering of an “opinion.”  (See Hurtado, supra, 222 Cal.App.3d at p. 1203, 272 Cal.Rptr. 324.)   And in Huntley the court held that the trial court should not have excluded proposed testimony from the plaintiff's treating physicians about “prognosis, diagnosis, causation of the injuries, duration, or the reasonableness and necessity of the doctors' bills.”  (Huntley, supra, 35 Cal.App.4th at p. 755, 41 Cal.Rptr.2d 358.)

However, dicta in the more recent Plunkett decision has afforded us the opportunity to rethink Hurtado, a decision of this court on which two members of this present panel also sat.3  At least insofar as the opinion may be read to indicate that the testimony of a treating physician regarding causation is not within the purview of subdivision (a)(2), we have decided that the case should not be followed.   Because Huntley simply follows Hurtado,4 the same applies to that case as well.

There are several reasons.   Primarily, it now appears that in Hurtado we read the word “retained” too narrowly, and thus gave it a meaning that creates anomalies in the fabric of California's discovery laws.   As the Plunkett court pointed out, the word “retained” is not given some special, specific meaning in the statute.  (See Plunkett, supra, 52 Cal.App.4th at p. 129, 60 Cal.Rptr.2d 377.)   The ordinary meaning of “retain” often includes a sense of continuing obligation extending beyond the initial formation of a relationship.   Hence among the meanings given by the Oxford English Dictionary (2d ed.1989) are these:  “[t]o keep in custody or under control;  to prevent from departing, issuing or separating;  to hold fixed in some place or position”;  “[t]o keep attached to one's person or engaged in one's service”;  and “[t]o keep hold or possession of;  to continue having or keeping, in various senses.”  (13 Oxford English Dict. (1989) pp. 768-769, emphasis added.)   We can hardly therefore say that “retained” in subdivision (a)(2) is mandated by the plain meaning rule in statutory construction.   At best, “retained” as used there is ambiguous:  It could refer either to (1) merely the initial agreement acquiring the expert's services, or to (2) all services agreed to be provided by the expert, regardless of the precise services contemplated at the beginning of the relationship.

Given that ambiguity, the better construction of the word “retained” is the broader one that comports with “commonsense” and the context and purpose of the statutory framework in which it appears.   And in fact that was the approach adopted by the Plunkett court.  (See Plunkett, supra, 52 Cal.App.4th at pp. 128-132, 60 Cal.Rptr.2d 377.)   That is, it is enough that the treating physician has agreed with the litigant to make himself or herself available to provide opinion testimony, even if there is no formal remunerative agreement or the relationship was not originally formed with the purpose of providing that expert testimony.  (See id. at pp. 130-131, 60 Cal.Rptr.2d 377.) 5

At least three reasons immediately come to mind for construing “retained” as used in subdivision (a)(2) broadly rather than narrowly.   First, and most basic, there is no principled basis on which to distinguish between treating physicians who offer expert opinion testimony and nontreating physicians who offer the same, at least when it concerns causation.6  As the Plunkett court noted about a treating physician who offers expert opinion testimony about the standard of care, we note about a treating physician who offers expert opinion testimony about causation:  That physician exceeds his or her “ordinary role.”  (See Plunkett, supra, 52 Cal.App.4th at p. 129, 60 Cal.Rptr.2d 377.)   From the point of view of the function of the expert opinion witness concerning causation, there is no reason to differentiate between treating and nontreating physicians.   To quote Plunkett again:  “The justification for categorizing a treating physician as a ‘fact witness' for purposes of discovery dissolves when his or her intended testimony extends beyond what the treating physician has observed, concluded and done.”  (Id. at p. 128, 60 Cal.Rptr.2d 377.)

True, the treating physician will have initially seen the litigant under less artificial circumstances, but that is, if anything, a reason to insure that any opinion testimony offered by the physician about causation is subject to the normal safeguards which the law otherwise affords an opponent faced with a causation expert.   Otherwise, there is the potential for confusion in the mind of the trier of fact as to the line between what the physician saw and did (percipience), and any formal conclusions the physician might draw about what caused the problem in the first place (opinion).   There will be a temptation to present the treating doctor's opinion concerning causation as an observed fact.7

Second, not only is there a potential for confusion, but there is a potential for mischief, at least when it comes to providing the trier of fact with an opinion about causation.   Plainly, a narrow reading of “retained” in that context allows one to sandbag one's opponent, by preventing the opponent from learning precisely why, as in the case before us, a physician thinks that a given set of aches and pains are attributable to X rather than Y. Put another way, a narrow reading gives the plaintiff who initially retained the expert as a treating physician an unfair advantage.   It creates an anomaly in the discovery law whereby one group of litigants is entitled to an expert witness declaration regarding the same topic that another group of litigants isn't.

Third, a narrow reading of “retained” conflicts with the practical realities of personal injury litigation, and creates the potential for affirmatively misleading defendants.   Typically, treating physicians testify about the extent of a claimant's damages, and often defendants can forego the expense of a deposition of the treating physician by simply obtaining the relevant medical records.   As treating physicians, observations leading to both diagnosis and prognosis should be in their records.   To allow them to step outside that “ordinary role” and give opinion testimony about causation would force litigants to depose every treating physician on the chance that the physician might be allowed to proffer opinion testimony.  (See Plunkett, supra, 52 Cal.App.4th at pp. 126-127, 60 Cal.Rptr.2d 377 [noting defendant's arguments that narrow reading of statute would mislead opponents and exacerbate litigation costs].) 8

We therefore do not follow Hurtado and Huntley to the extent that they can be read to exempt treating physicians who proffer testimony about causation from the scope of the subdivision (f)(2) expert witness declaration requirement by way of a narrow reading of subdivision (a)(2).   The only question remaining is whether Schreiber's hoped for testimony from those physicians as to the cause of her pains was genuinely opinion testimony, and not simply a kind of percipient testimony.

B

 The references in the published decisions that there are in the area to causation qua causation are mere snippets.   The Huntley decision quoted the trial court lumping “causation of the injuries” in with such things as “prognosis,” “diagnosis,” and reasonableness of doctors' bills as things beyond the percipient testimony of the treating physician-but then promptly reversed that decision, albeit with no consideration of the nature of causation testimony.  (See Huntley, supra, 35 Cal.App.4th at pp. 755-756, 41 Cal.Rptr.2d 358.)  Castaneda allowed an expert to testify as to causation, but that was because an expert witness declaration had been submitted, albeit not a particularly complete one (it omitted causation).   And, like the trial court in Huntley, the appellate court in Plunkett indicated in passing that it thought causation was in the same category as diagnosis and prognosis (Plunkett, supra, 52 Cal.App.4th at p. 127, 60 Cal.Rptr.2d 377), but again did not address the nature of the causation testimony.

The law has more common sense than the Scottish skeptical philosopher David Hume, who once asserted that just because a window breaks when you throw a brick at it you cannot “prove” the throwing of the brick caused the damage.9  Even so, the unobservability of causality per se, a point often associated with Hume,10 has an obvious application in cases where the person who testifies that effect A is the result of cause B did not actually observe B. When the supposed cause of an effect is an unobserved (at least from the point of view of the witness) historical event, like an auto accident, the conclusion that the event gave rise to an effect is necessarily the product of ratiocination, not observation.   In other words, at least in instances where there is no contemporaneous observation, establishing the “causal nexus” between A and B necessarily requires an opinion.

The surgeon who in 1742 testified on Annesley's behalf really offered an opinion as to the cause of the poacher's death.   His conclusion was a logical inference from the data of the bullet's trajectory-but he could not have been certain that Annesley did not hold the gun at an odd angle with the precise intention of making it seem like the firing was an accident.   The surgeon was not present at the creation of the effect.   He had to give an opinion about it.

Likewise, 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 too were going to offer opinion, not percipient, testimony.   None of Schreiber's experts actually observed the auto accident which allegedly caused the various painful effects, mostly in her neck, back and shoulders, which prompted her suit.   Absent the required expert witness declaration the trial judge was thus thoroughly correct to preclude that testimony.

III

There are, however, two aspects of section 2034 which must now be emphasized for an understanding of the context of our decision.   The first, as we have noted, is that Schreiber has given no indication in her brief that the trial court might have erred in refusing to permit her to submit a tardy expert witness declaration under subdivision (l ) of section 2034 ( [“On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.”] ).   Manifestly, subdivision (l ) is an important escape valve in the statutory scheme governing expert witness declarations;  the possibility of relief it offers shows that subdivision (f)(2)'s declaration requirements were never intended to be a “gotcha” to trap unwary counsel.   It was most certainly not intended as a way to avoid winning on the actual merits.   Indeed, as the Plunkett court noted, the statute specifically contemplates tardy expert declarations submitted even during trial.  (Plunkett, supra, 52 Cal.App.4th at pp. 136-137, 60 Cal.Rptr.2d 377.)   And, as Plunkett also pointed out, it is an abuse of discretion not to grant relief in instances where the failure to submit the declaration was based on an honest mistake of law and provision made to allow the opposing party to “recover from any disadvantage.”  (Id. at p. 137, 60 Cal.Rptr.2d 377.)   Our construction of “retention” in subdivision (a)(2)-intended to put parties on an equal footing regarding the merits of litigation-should not be reduced to a simple litigation technique to allow one side to win regardless of the merits.   As Plunkett indicates, courts should be liberal in granting relief for the failure to provide expert witness declarations.

The second aspect involves the actual requirements of the declaration required by subdivision (f)(2).   Again, trial courts should not treat these requirements as ways to dispose of cases without regard to the merits.   The phrase “general substance” as it is used in subdivision (f)(2)(B), for example, has also been liberally construed so as to allow testimony to come in.  (See Castaneda v. Bornstein (1995) 36 Cal.App.4th at pp. 1826-1829, 43 Cal.Rptr.2d 10.)   It doesn't take much to put the other side on notice of the “general substance” of the expert's testimony.   In this case just the word “causation” would have sufficed.

Here, however, the subdivision (l ) escape valve has not been raised on appeal and there was no declaration at all.   The judgment must accordingly be affirmed.

FOOTNOTES

1.   All statutory references in this opinion are to the Code of Civil Procedure.

2.   All references to subdivision (a)(2), subdivision (f)(2), or subdivision (l ) are to section 2034 of the Code of Civil Procedure.

3.   The language in Plunkett addressing the problem of whether the two physicians were “retained” for the purpose of forming and expressing an opinion under subdivision (a)(2) of section 2034 was dicta for the following reason.   The appellate court ultimately held that it was error for the trial court to exclude one physician's standard of care testimony because, in light of all the relevant statutory factors, the trial court should have granted the plaintiff permission to file a tardy expert witness declaration under subdivision (l ) of section 2034, and therefore the judgment had to be reversed.  (See Plunkett, supra, 52 Cal.App.4th at pp. 134-138, 60 Cal.Rptr.2d 377.)   Thus it was not necessary for the court to discuss whether it was error to exclude the two physicians' standard of care testimony-the case still had to be reversed anyway.   Indeed, this very point was made by Justice Davis in his dissent.  (See Plunkett, supra, 52 Cal.App.4th at p. 138, 60 Cal.Rptr.2d 377 (“In light of this prejudicial error, I would not even reach the issue of whether it was correct at the outset to apply the ‘hired-gun’ provisions of subdivision (a)(2) to plaintiff's treating doctors.”).)There is no argument presented in this appeal that, as in Plunkett, the trial judge somehow abused his discretion in denying a request to file a tardy expert declaration pursuant to section 2034, subdivision (l ).

4.   The rationale of the Huntley decision is to be found in the quote from Hurtado set out at the bottom of page 756 of the Huntley opinion.

5.   As we emphasize in footnote 6 and in part II B of this opinion below, we do not necessarily say that testimony concerning diagnosis or prognosis falls within the opinion category.   But causation certainly does.

6.   For purposes of our analysis causation qua causation should be distinguished from prognosis or diagnosis.   The testimony of a treating physician concerning prognosis and diagnosis involves a combination of percipient observation and expert opinion that is different from causation, which does not necessarily require initial percipient observation.  (See discussion below in part II B of this opinion.)   The distinction between causation, on the one hand, and prognosis and diagnosis, on the other, would appear to mirror the distinction between the “retained expert” and the “other” expert which was noted in Hurtado, supra, 222 Cal.App.3d at page 1203, 272 Cal.Rptr. 324, and is implied in subdivision (a)(2) itself, which, as written, carves out “retained” experts from “any expert” otherwise designated in subdivision (a)(1) of section 2034.

7.   And indeed that was precisely what happened in the 1742 Annesley prosecution which we mentioned in the introduction to this opinion.   One of Annesley's surgeon witnesses was challenged as to his conclusion that the gun had been fired while held at the hip instead of the shoulder.   The doctor declared, “ ‘this is not a Matter of Judgment, but I have given you Demonstration of it.’ ”  (Landsman, One Hundred Years of Rectitude:  Medical Witnesses at the Old Bailey 1717-1817, supra, 16 Law. & Hist. Rev. at p. 456-457.)

8.   In the context of the practicalities of personal injury litigation, an important distinction must be drawn between information which a treating physician may learn from a patient in the context of rendering a diagnosis and a formal opinion about causation rendered in anticipation of litigation.   Physicians will often ask patients for information bearing on the possible origins of a condition as part of the process of making a diagnosis or formulating a treatment plan.   For example, it is hard to imagine doctors who suspect their patients have lung cancer not asking those patients whether they smoke.   And their asking the question is certainly information that is properly part of their percipient testimony (i.e., what they actually asked a certain patient).   But that is different from formally rendering opinion in a particular lawsuit that smoking is the “cause” of a given cancer.Another example might be a child with a stiff neck.   A parent who takes the child to a doctor may be asked if the child recently slipped and fell, about the position in which the child sleeps, or whether the child has recently run or is running a fever.   Such information is gathered for the purpose of making a proper diagnosis-the parent certainly wants to know whether the stiff neck is simply a stiff neck or the child has meningitis.   Even so, the reason the parent took the child to the doctor in the first place was to diagnose, and if necessary, treat the neck, not to litigate against the store in which the child may have recently fallen and slipped.   The questions asked by the doctor bearing on causation in that context are an aid to diagnosis and in any event are the subject of percipient testimony (what the doctor heard).   But when the doctor later offers to testify in a lawsuit against a store that the stiff neck was “caused” by a slip and fall in the store, the doctor has stepped outside the role of the treating physician and, in effect, stepped into the shoes of an accident reconstruction expert.   And that is opinion testimony formed in anticipation of litigation which the store's counsel would not expect to be offered without the advance warning contemplated by subdivision (f)(2).

9.   See Hesch and Grabarek, Towards the Deconstruction of Legal Relativism (1994) 6 St. Thomas L.Rev. 349, 391, footnote 90, citing The Philosophy of David Hume (V.C. Chappell ed.1963).   Needless to say, the testimony of a single credible witness to the effect that he or she saw the defendant throw a brick at a window that subsequently shattered would be enough to link the effect (damaged property) with the cause (the throwing of the brick).

10.   See Horohoe, Theoretical Perspectives on International Institutions (1995) 89 Am. Soc'y Int'l L. Proc. 79, 94 (“The fundamental problem, first explicated by Hume, is that causality per se is unobservable and must be inferred.”).

SILLS, P.J.

WALLIN, J. and CROSBY, J., concur.

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