Waicis v. Superior Court

Opinion

KING, J.

In this case we hold that it is not an abuse of discretion for the trial court to disqualify an expert witness from testifying at trial when the court finds the expert has repeatedly been uncooperative in allowing his deposition to be taken, and that finding is supported by substantial evidence.

Linda Waicis, plaintiff in a dental malpractice action against Theodore Schwartz, D.D.S., seeks a writ of mandate to vacate an order of the Marin County Superior Court disqualifying Martin Frankel, D.M.D., her expert witness on the standard of care, from testifying at trial. We deny writ relief.

Facts

Waicis’s action was filed in November 1987. In January 1988, she disclosed Dr. Conrow as an expert witness on the issue of liability. Schwartz

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disclosed Dr. Noble as his expert witness and provided her a copy of Dr. Noble’s report.

In August 1989, Waicis claimed exemption from arbitration contending her anticipated special damages exceeded $50,000; however, the case was ordered to judicial arbitration pursuant to Code of Civil Procedure section 1141.10 et seq. In her arbitration statement she listed Doctors low and Frankel. Schwartz believed them to be subsequent treating dentists and noticed Dr. Frankel’s deposition for September 1, 1989.

Dr. Frankel confirmed the September 1 deposition date but demanded a $500 hourly fee on the basis of his as yet undisclosed status as an expert witness. He also demanded the deposition be set after 5 p.m. Schwartz offered $250 as a reasonable fee. The September 1 deposition was put over because of a scheduling conflict of Waicis’s counsel.

The fee dispute, as well as Dr. Frankel’s insistence on scheduling depositions after office hours, such as 5 or 6 p.m., resulted in Schwartz having to file a motion for the setting of a reasonable fee. The trial court set a reasonable hourly fee of $350. Finally, on September 21, 1989, Waicis formally disclosed Dr. Frankel as an expert trial witness.

Dr. Frankel’s deposition was renoticed for October 3, 1989, then re-noticed for a third time, a fourth time, and a fifth time. Each rescheduling was done to accommodate Dr. Frankel’s schedule. This resulted in the arbitration hearing having to be continued.