Bonds v. Roy

Opinion

BROWN, J.

The issue in this case is whether under Code of Civil Procedure section 2034 (section 2034), which provides for discovery of expert witness information, a trial court may preclude an expert witness from testifying at trial on a subject whose general substance was not previously described in an expert witness declaration. The Courts of Appeal are in conflict on this issue. We conclude the testimony may be precluded and, therefore, affirm the judgment of the Court of Appeal, which reached the same conclusion.

I. Factual and Procedural Background

The relevant facts are undisputed. Plaintiff Charles R. Bonds sued defendant Dr. Mohan Roy for medical malpractice during surgery. Bonds contended Roy had negligently severed a major nerve in his right arm, leaving Bonds with little use of that arm and hand.

The parties exchanged designations of experts, including expert witness declarations. In these declarations, Roy’s trial counsel designated Dr. Robert Shuman, a cardiovascular thoracic surgeon, Dr. Jan Duncan, an orthopedic surgeon, and Roy as defense experts. The declarations described Shuman’s

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expected testimony as going to liability, causation, and damages and Duncan’s expected testimony as going to damages.

At his deposition, Duncan testified he had been retained for “basically, two things. One, is to evaluate the disability of Mr. Bonds at the time I saw him. And the other was to evaluate how much disability he was [having] prior to the surgery, based on the records.” Duncan specifically confirmed he did not expect “to be giving any testimony or any opinion concerning the standard of care issues that might be involved in this case.”

At trial, during the afternoon recess of the last day of testimony, Roy’s trial counsel sought to expand the scope of Duncan’s testimony to include two new areas, which his appellate counsel characterizes as relating to “the standard of care.” These were whether Bonds’s injury was consistent with a cut nerve or merely a stretched nerve, and the standard of care as to immediate reoperation and consultation with a neurologist. The trial court declined the request, stating Duncan had been expected to testify only as to damages and noting that because he was the last defense witness, there was not enough time to adjourn and take his deposition. The trial court stated any expansion of the scope of Duncan’s testimony at that point would be unfair, prejudicial, and a surprise to Bonds. Duncan, who was also a qualified medical evaluator, testified solely on the issue of Bonds’s state of disability at the time Duncan examined him, and what vocational opportunities were available to Bonds. The jury returned a verdict in Bonds’s favor.