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Court of Appeal, Fourth District, Division 1, California.

Cynthia PAXTON et al., Plaintiffs and Appellants, v. Linda STEWART et al., Defendants and Respondents.

No. D027490.

Decided: December 03, 1998

Michael D. Singer, San Francisco, and Clarice J. Letizia, San Diego, for Plaintiffs and Appellants. Thelen Reid & Priest, Curtis A. Cole, Thelen, Marrin, Johnson & Bridges, Michael D. Holtz, Los Angeles, Luce, Forward, Hamilton & Scripps, Cary W. Miller, Jana Ford-Harder, Lewis, D'Amato, Brisbois & Bisgaard, James E. Friedhofer and Douglas R. Reynolds, San Diego, for Defendants and Respondents.

Cynthia Paxton and her husband Richard Paxton (plaintiffs) filed the instant action for medical negligence and loss of consortium against Doctors Linda Stewart, Robert Giarratano and Ronald G. Salzetti, and Mercy Hospital and Medical Center (Mercy) (collectively defendants).1 The complaint alleges Stewart, the obstetrician who attended the delivery of Paxton's daughter, committed medical malpractice by allowing Paxton to deliver vaginally instead of by cesarean section and by negligently repairing and treating the fourth degree perineal tear Paxton suffered as a result of the vaginal delivery.

At trial, plaintiffs sought to elicit expert opinion testimony regarding negligence and the standard of care from two of Paxton's treating physicians. Plaintiffs' expert witness designation stated the treating physicians had “not technically been retained by plaintiffs” but would “be called to testify at trial, as to liability, causation, and damages.” The court ruled the treating physicians' opinion testimony was limited to that based on their personal observations. Based on that ruling, plaintiffs concluded they could not meet their burden of proof and consented to a judgment against them to facilitate this appeal. Plaintiffs contend the court committed prejudicial error by prohibiting the treating physicians from testifying as to the standard of care. We affirm.


Paxton received prenatal care from defendants Giarratano and Salzetti. Plaintiffs' complaint alleges Giarratano agreed to deliver Paxton's baby by cesarean section due to her severe Kraurosis.2 However, when Paxton arrived at Mercy to deliver her baby, Stewart assumed her care as an on-call obstetrician for Giarratano.

Paxton vaginally delivered a healthy baby girl, but she sustained a fourth degree tear from her vagina to her rectum. Stewart repaired the tear immediately after the delivery. Two days later, Paxton expelled some vaginal packing which Stewart had placed during the repair procedure. The nurses caring for Paxton were unaware of the packing until Paxton expelled it.

After Paxton was discharged from Mercy, she developed a vaginal infection and a rectovaginal fistula.3 Stewart repaired the fistula in two separate outpatient surgeries performed at Mercy, as the sutures from the first surgery did not hold. Plaintiffs allege Stewart's negligent failure to perform a bowel preparation caused the sutures to tear out, leaving an open infected wound. Plaintiffs allege Paxton is bowel incontinent and cannot live a normal life as a result of defendants' negligence. Although it is not alleged in the complaint, plaintiffs presented evidence at trial that Paxton suffered a “web-like” abnormality in her vagina which could have been a consequence of reparative surgery to the vaginal opening.

Plaintiffs filed their complaint in May 1995 and served their first designation of experts under Code of Civil Procedure 4 section 2034 in January 1996. Plaintiffs listed 10 experts, 9 of which were physicians who had treated her, including the defendant doctors. In her expert declaration, plaintiffs' counsel stated:

“The experts listed as 1 through 9 have not technically been retained by plaintiffs. They are plaintiff CYNTHIA PAXTON's present and past treating physicians who will be called to testify at trial, as to liability, causation, and damages. Their fees for providing deposition testimony are unknown at this time.”

Regarding plaintiffs' 10th expert, Jo Ann Wegmann, plaintiffs' counsel stated in his declaration:

“Jo Ann Wegmann, Ph.D., has a Bachelor's and Master's degree in Nursing and an Ph.D. in Education. She has been the director of Nursing at Pomerado Hospital, and is a Professor for the California State University System. Her Curriculum Vitae will be available upon request. Dr. Wegmann is expected to testify as to liability, causation and damages, especially in regard to Mercy Hospital and Medical Center. Her fee for providing deposition testimony is $100 per hour. Her fee for consulting with the retaining attorney is $75 per hour. Dr. Wegmann has agreed to testify at trial and will be sufficiently familiar with the pending action to submit to a meaningful oral deposition.”

Plaintiffs later served a second designation of expert witnesses in which they listed the nine treating physicians again and designated Doctor Jordan J. Horowitz as a retained expert. The declaration accompanying the second designation reiterated the language in the first declaration concerning the nine experts who had “not technically been retained by plaintiffs.” Regarding Horowitz, the declaration stated:

“Jordan J. Horowitz, M.D. is an Associate Clinical Professor, Department of Obstetrics and Gynecology, at the University of California, San Francisco. He is certified by the American Board of Obstetrics and Gynecology. He will be called to testify as to the liability of Drs. Giarratano, Salzetti, and Stewart; causation; and damages. His fee for providing deposition testimony is $450 per hour. Advanced payment is required for estimated services prior to scheduling of deposition. His fee for consulting with the retaining attorney is also $450 per hour. Dr. Horowitz has agreed to testify at the time of trial and will be sufficiently familiar with the pending action to submit to a meaningful oral deposition.”

Two of the nine treating physicians plaintiffs designated were Doctor David Harrari, a gynecologist, and Doctor Edsel Aucoin, a colorectal specialist. At Aucoin's deposition, defense counsel declined to pursue any expert testimony and objected to Aucoin's testifying as an expert on the ground plaintiffs had not properly retained and designated him as such.

Before trial, Stewart filed a motion in limine to exclude any expert opinions by Paxton's treating physicians regarding Stewart's care and treatment of Paxton. Stewart argued plaintiffs had not listed the treating physicians as retained experts and had not satisfied the requirements of section 2034 regarding them. Stewart further argued that plaintiffs had designated Horowitz as their retained expert on the standard of care, causation, and damages regarding Stewart's treatment of Paxton and should not be allowed to present duplicative expert testimony on those issues. Stewart filed a separate in limine motion to limit Aucoin's testimony to his percipient observations and exclude any expert opinion going beyond those observations.

In opposition to those motions, plaintiffs argued the treating physicians should be allowed to testify regarding the standard of care, causation, and damages because they had been properly designated under section 2034 and, in any event, were percipient experts who were permitted to state their opinions as to liability, causation, and damages based on their observations without being designated under section 2034.

On the first day of trial the parties waived jury and orally argued the in limine motions. The court ruled the treating physicians could provide expert testimony as long as it was based solely on their percipient observations and not on hypothetical questions, medical records or even the patient's recitations.

Plaintiffs' first trial witness was Paxton's gynecologist, Doctor Harrari. Plaintiffs' counsel asked for Harrari's opinion as to the cause of the web-like abnormality in Paxton's vagina. Stewart's counsel objected to the question on the ground it called for an opinion beyond Harrari's percipient observation. The court sustained the objection, ruling Harrari could state his opinion only if it were based solely on his personal observation. Plaintiffs' counsel ultimately withdrew the question.

Plaintiffs' second witness was Doctor Aucoin, Paxton's colorectal surgeon. Plaintiffs' counsel asked Aucoin if he was prepared to express his opinions based on his percipient knowledge obtained during his care and treatment of Paxton as to the cause of Paxton's current condition. Stewart's counsel objected, pointing out Aucoin testified in deposition that there were three possible causes of Paxton's condition, but he could not tell which was the actual cause based on his observations alone. He was able to offer an opinion as to the cause only after reviewing Paxton's medical history. The court reiterated its ruling that Aucoin could state an expert opinion only if it was based on his observations during treatment.

Attempting to establish negligence through the doctrine of res ipsa loquitur, plaintiffs' counsel later asked Aucoin: “Can you testify with a reasonable degree of medical probability that [Paxton's condition] that you saw with your own eyes on February 2nd, 1995 would not exist in the absence of negligence?”

Stewart's counsel objected on several grounds, including Aucoin's prior testimony that he could not base an opinion as to the cause of Paxton's condition solely on his personal observations. After extensive argument, the court warned plaintiffs' counsel not to ask Aucoin about the standard of care. Plaintiffs' counsel withdrew her question and instead asked Aucoin to state the three possible causes of the condition he saw in Paxton. Aucoin identified the three possible causes as failure to repair muscles after an episiotomy, infection, or hematoma.

Plaintiff's counsel later asked: “Now, based upon these three causes that you have told us, if we assume that there is no hematoma and no infection, can you state with a reasonable degree of medical probability that those muscles, the exterior and interior sphincter muscles were not repaired properly?” The court sustained Stewart's objection to the question on the ground it was a hypothetical question beyond Aucoin's personal observations. The court later sustained defense objections to additional attempts by plaintiffs' counsel to elicit Aucoin's opinion as to the cause of Paxton's condition and whether it could have occurred in the absence of negligence.

As a result of the court's exclusion of Aucoin's testimony regarding causation, plaintiffs' counsel requested Aucoin be excused subject to recall and that she be permitted to submit a memorandum of law addressing the admissibility of opinion testimony by a percipient expert. The court granted counsel's request to file a memorandum of law.

Plaintiffs' counsel then filed three separate memoranda. In the first, plaintiffs argued that statements of Paxton's treating physicians were admissible under various exceptions to the hearsay rule. In the second memorandum, plaintiffs argued a doctor can properly base expert opinion testimony on a patient's statements about his or her physical condition, standardized tests or another doctor's diagnosis. In the third memorandum, plaintiffs argued that Paxton's treating physicians had been properly designated as expert witnesses under section 2034 and could give expert opinion testimony even if they had not been properly designated. Stewart responded that treating physicians are limited to opinions based solely on their personal observations.

After hearing oral argument on plaintiffs' memoranda, the court reaffirmed its ruling that Doctor Aucoin and Paxton's other treating physicians could render opinions based only on their personal observations. As a result of the court's ruling, plaintiffs requested that judgment be entered against them “to facilitate the appeal because of the adverse determination of a critical issue․”5 Defendants then made separate motions for judgment under section 631.8. The court entered a judgment for defendants which noted:

“Opening Statements were made by all parties and evidence was presented by Plaintiffs. During the presentation of Plaintiffs' case, Counsel for Plaintiffs represented to the Court that Plaintiffs could no longer present a prima facie case as to any of the Defendants. Therefore, Plaintiffs requested Judgment be entered against them. Defendants did not oppose Plaintiffs' request and each made separate Oral Motions for Judgment under [section] 631.8. The Court granted the motions on August 6, 1996 without issuing a Statement of Decision. Defendant LINDA STEWART, M.D. waived costs.”


I. Appealability

Defendants contend the judgment is not appealable because plaintiffs consented to it. As a general rule, a consent judgment is not appealable. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1428, 77 Cal.Rptr.2d 574 (Tudor Ranches ).) However, the California Supreme Court has noted the following exception to that rule: “If consent was merely given to facilitate an appeal following adverse determination of a critical issue, the party will not lose the right to be heard on appeal.” (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817, 226 Cal.Rptr. 81, 718 P.2d 68 (Building Industry ); Connolly v. County of Orange (1992) 1 Cal.4th 1105, 1111, 4 Cal.Rptr.2d 857, 824 P.2d 663.)

However, in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 742, 29 Cal.Rptr.2d 804, 872 P.2d 143 (Morehart), the California Supreme Court held the “one final judgment” rule precludes an appeal from a judgment that fails to dispose of “․ all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as ‘separate and independent’ from those remaining․” (Id. at p. 743, 29 Cal.Rptr.2d 804, 872 P.2d 143.)

Four Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997) 60 Cal.App.4th 79, 70 Cal.Rptr.2d 82 (Four Point ), read Morehart as “implicitly overruling” Building Industry on the point that a consent judgment is appealable where consent was given merely to facilitate the appeal following adverse determination of a critical issue. (Four Point, supra, at p. 83, fn. 5, 70 Cal.Rptr.2d 82.) Tudor Ranches discussed the continuing viability of the Building Industry exception to the rule prohibiting an appeal from a consent judgment in light of Morehart and Four Point:

“The statement of the court in Four Point ․ should be considered in light of the context in which the appealability issue was raised in that case. In Four Point, the trial court summarily adjudicated some, but not all, of the plaintiff's claims in favor of the defendant. The parties then stipulated to the entry of a ‘final judgment’ which recited their intent that the remaining claims be dismissed without prejudice to their later prosecution. The court concluded the judgment was nonappealable because it did not dispose of all claims between the parties as required by Morehart. [Citations.]

“We agree with the Four Point court that, notwithstanding Building Industry, Morehart precludes a party from obtaining immediate review of an adverse ruling on some of its claims by dismissing the remaining claims without prejudice. However, it is not apparent to us that Morehart precludes a party from stipulating to an adverse judgment with prejudice on all of its claims, in order to appeal from that judgment. In such a case, there would be no claims left unresolved and, hence, no violation of Morehart. ․

“In the absence of further guidance from the Supreme Court, we construe Morehart as abrogating the Building Industry exception only to the extent that exception might be applied to permit an appeal from a stipulated judgment which does not dispose of all claims between the parties․” (Tudor Ranches, supra, 65 Cal.App.4th at pp. 1429-1430, 77 Cal.Rptr.2d 574.)

We agree with Tudor Ranches's analysis and conclusion that the Building Industry exception is still viable after Morehart. The exception applies here because the judgment to which plaintiffs consented, on its face, is a final judgment that disposes of all of plaintiffs' causes of action. The judgment contains no “without prejudice” language allowing “contingent causes of action to exist in a kind of appellate netherworld․” (Don Jose's Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115, 118, 61 Cal.Rptr.2d 370 [dismissing an appeal from summary adjudication order after parties stipulated to dismissal of remaining causes of action without prejudice].)

The requirement of an adverse determination of a critical issue is satisfied because the admissibility of Aucoin's excluded testimony was critical to the case plaintiffs intended to present at trial. Plaintiffs conceded they could not meet their burden of proving medical negligence through expert testimony unless Aucoin was allowed to provide testimony on the standard of care and causation beyond that based solely on his personal observations. We deny defendants' request to dismiss the appeal.6

II. Standard of Review

The parties disagree as to the appropriate standard of review. Defendants Stewart and Mercy contend the proper standard of review is abuse of discretion, the standard which generally applies to appellate review of a trial court's evidentiary rulings. Plaintiffs contend the court's exclusion of expert testimony presents a pure question of law subject to de novo review because the court's ruling was based on its interpretation of cases interpreting section 2034. We agree with plaintiffs.

The admissibility of any treating physician's opinion as to matters beyond his or her personal observation turns on whether the treating physician was “retained” within the meaning of section 2034 and properly designated under that statute. Facing a similar issue, the Court of Appeal in Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 126, 60 Cal.Rptr.2d 377 applied the de novo standard of review, stating: “The proper interpretation of statutory language is a question of law which (the appellate) court reviews de novo, independent of the trial court's ruling or reasoning․” Accordingly, we apply the de novo standard of review.

III. Admissibility of Expert Opinion Testimony By Paxton's Treating Physicians

Plaintiffs contend the court committed prejudicial error by not allowing Paxton's treating physicians, Harrari and Aucoin, to render opinions as to the standard of care or whether Paxton's condition could have occurred in the absence of negligence. We conclude that because the treating physicians were not “retained” experts under section 2034, the court correctly limited their expert opinion testimony to that based on their personal observations.

In Huntley v. Foster (1995) 35 Cal.App.4th 753, 756, 41 Cal.Rptr.2d 358, the Court of Appeal explained:

“Section 2034, subdivision (a)(1), requires a party to provide, upon request of another party, the name and address of any expert witness whose expert opinion the first party intends to offer into evidence at trial. Subdivision (a)(2) of section 2034 requires an ‘expert witness declaration under paragraph (2) of subdivision (f)’ for any expert named in subdivision (a)(1) who ‘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․’ This ‘expert witness declaration’ must include a brief narrative of the expert's qualifications, a brief narrative of the substance of the expert's testimony, a representation that the expert has agreed to testify at trial, a representation that the expert is sufficiently familiar with the pending action to be deposed concerning his opinion and the basis therefore, and a statement of the expert's fees for consulting and being deposed. (§ 2034, subd. (f)(2)(A), (B), (C), (D), and (E).)” (Italics added.)

However, “[t]he disclosure requirements of section 2034, subdivision (f)(2) apply only to ‘retained’ experts. [Citations.] The disclosures are not required for treating doctors even if the doctors may be presented with questions at trial that call for an expert opinion․” (Huntley v. Foster, supra, 35 Cal.App.4th at p. 756, 41 Cal.Rptr.2d 358.) Thus, a treating physician who is not a “retained” expert may give opinion testimony concerning prognosis, diagnosis, causation of injuries, duration, or the necessity of medical expenses because such testimony “is regarded as percipient testimony acquired from personal observation rather than from information provided by a party in anticipation of litigation or in preparation for trial․” (Plunkett v. Spaulding, supra, 52 Cal.App.4th at p. 128, 60 Cal.Rptr.2d 377.)

Plunkett added:

“[T]he 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, and addresses what another physician should have observed, concluded or done.

“When a treating physician intends to testify as to what standard of practice applies generally to practitioners in the same or a related field, or whether the standard has been breached in a particular case, such opinion testimony is extraneous to that physician's treatment of the patient; is not based solely on the treating physician's personal observation of the patient; necessarily relies on information provided by the party; and is rendered for the purpose of trial rather than treatment.” (Plunkett v. Spaulding, supra, 52 Cal.App.4th at p. 128, 60 Cal.Rptr.2d 377.)

Accordingly, if Harrari and Aucoin were not retained experts under section 2034 but merely treating physicians, the court properly excluded their opinions regarding the standard of care and negligence because such testimony exceeds the scope of allowable opinion testimony by a nonretained treating physician.7

Relying on Plunkett, plaintiffs contend Harrari and Aucoin were retained as a matter of law regardless of whether they were testifying under a paid retainer agreement because plaintiffs' expert designations listed them as experts and counsel's accompanying expert witness declarations described the general substance of their testimony. Notwithstanding the inclusion of Harrari and Aucoin in plaintiffs' expert witness designations, we disagree that they were “retained” experts within the meaning of section 2034.

Plunkett addressed the question of whether a treating physician is “retained” within the meaning of section 2034 when a party intends to elicit the physician's testimony regarding the standard of care and whether it has been breached “but has not entered into a paid contractual relationship with the expert for that testimony.” (Plunkett v. Spaulding, supra, 52 Cal.App.4th at p. 129, 60 Cal.Rptr.2d 377.) Plunkett concluded the term “retained” under section 2034 “includes any arrangement, paid or unpaid, by which a treating physician agrees to remain in a party's service to give expert opinion at trial concerning matters other than percipient witness testimony.” (Plunkett, supra, at p. 129, 60 Cal.Rptr.2d 377, italics added.) Plunkett observed that because a treating physician cannot be compelled to give standard of care testimony against his or her will, “a party in a medical malpractice action who elicits standard of care testimony from a treating physician necessarily does so pursuant to an agreement that the physician will exceed the ordinary role of a treating physician by providing other expert testimony for purpose of the litigation.” (Ibid., italics added.) Noting the dictionary definition of “ ‘retain’ [is] ‘to keep in pay or in one's service’ [citations]” (id. at p. 130, 60 Cal.Rptr.2d 377, original italics), Plunkett concluded “ ‘retain’ connotes either a relationship involving remuneration ․ or an unpaid agreement to be in one's service․” (Ibid.) Thus, in order for a treating physician to be deemed a retained expert under section 2034, the physician must have agreed “to form and express an expert opinion (other than percipient witness testimony) in anticipation of litigation or in preparation for the trial․” (Ibid.)

Plaintiffs' expert designations and accompanying declarations did not give notice that the listed treating physicians had agreed to render expert opinions on the standard of care or any other subject. The designations indicate plaintiffs merely listed all of Paxton's treating physicians without regard to whether they had agreed to give expert testimony. The statement in the accompanying declarations that the treating physicians had “not technically been retained by plaintiffs” suggests the physicians had not agreed to render expert opinions on plaintiffs' behalf. This interpretation is supported by the fact plaintiffs' list of treating physicians included all of the defendant doctors, who certainly did not agree to testify for plaintiffs against themselves. Moreover, while plaintiffs' counsel's declarations provided all of the disclosures required by section 2034, subdivision (f)(2) for Horowitz and Wegmann (the two designated experts whom plaintiffs unquestionably retained), including the representations that they had agreed to testify at trial, as to the other nine experts (including defendants), counsel's declarations stated only that they were Paxton's treating physicians who would be called to testify at trial as to liability, causation, and damages, and that their fees for providing deposition testimony were presently unknown. That plaintiffs provided all the required disclosures for Horowitz and Wegmann, but not for the treating physicians, further suggests the treating physicians had not agreed to testify as experts on plaintiffs' behalf. Additionally, the record does not indicate plaintiffs ever sought to augment their expert designation to include any of the nine treating physicians as retained experts.

At trial, plaintiffs' counsel admitted she had not retained any of the treating physicians. Referring to Aucoin, she stated: “I only have one colorectal expert. The defendants had two colorectal experts. Dr. Aucoin, he's her treating physician. I never retained him. I never retained any of the treating physicians. I planned to call them and have them testify as to the truth because I'm very comfortable with the truth.”

The following exchange between Harrari and plaintiffs' counsel during redirect examination shows Harrari definitely had not agreed to give expert testimony on plaintiffs' behalf:

“Q. And when I called you a week before your deposition you made it perfectly clear to me that you did not want to testify as an expert in this case, correct?

“A. That is correct.

“Q. And that was because you felt uncomfortable about testifying regarding your peers in this community; is that correct?

“A. Yes.

“Q. And, however, you have testified in the past on behalf of both the plaintiff and a defendant, correct?

“A. Yes.

“Q. But when you testify on behalf of a plaintiff it would not be in this community because you feel uncomfortable testifying around your peers; is that correct?

“A. Correct.”

In short, the record fails to establish that either Aucoin or Harrari agreed to give expert testimony on plaintiffs' behalf so as to fall within the definition of a “retained” expert under section 2034. Plaintiffs' listing of Paxton's treating physicians in their expert designations did not put defendants on notice that the treating physicians were retained experts; it merely reflected plaintiffs' intention to call the treating physicians at trial in the hope of eliciting favorable expert opinion testimony from them on the issues of liability, causation, and damages. Because plaintiffs did not show Aucoin or Harrari were “retained” experts within the meaning of section 2034, the court correctly limited their expert testimony to opinions based on their personal observations.


The judgment is affirmed.

MAY, J.*

BENKE, Acting P.J., and HALLER, J., concur.

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