Huntley v. Foster

Opinion

GILBERT, J.

A party in a personal injury action intends to have her treating doctor testify as to her injuries, treatment, and prognosis. Must she provide opposing counsel an expert witness declaration required by Code of Civil Procedure section 2034, subdivision (a)(2) for retained experts?

1

No.

A treating doctor is not a retained expert for purposes of section 2034.

Plaintiff Cynthia Lynn Huntley appeals a stipulated judgment, agreed to by the parties after the trial court precluded Huntley’s treating chiropractor and podiatrist from testifying as expert witnesses. We reverse.

Facts

On June 20, 1991, plaintiff Cynthia Lynn Huntley and defendants Antoinette Foster and Russell Trubia were in an automobile collision on Surfside Drive in Port Hueneme. Huntley suffered personal injuries to her neck, back, wrist and ankle. She brought this negligence action against Foster and Trubia (collectively referred to as Foster). The trial court referred the lawsuit to an

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arbitrator for hearing. After the arbitrator held a hearing and ruled favorably for Huntley, Foster sought a trial de novo in the superior court.

The parties each served a demand for expert witness information upon the other. (§ 2034.) Huntley informed Foster that she did not have “any retained experts” but would rely upon “the medical care providers as indicated. . . .” By a document entitled “Written Exchange of Expert Witness Designations,” Huntley stated that Doctor Jon A. Fields (chiropractor) and Doctor Carl Wong (podiatrist) were witnesses whose “expert opinions” she intended to present at trial. Huntley also provided their addresses and telephone numbers.

The trial court set a trial date of June 7, 1993. Foster scheduled the deposition of Doctor Fields on June 2. Huntley objected that the deposition was not timely under section 2024, subdivision (d), among other statutes, concerning completion of discovery proceedings “on or before the 15th day . . . before the date initially set for the trial . . . .” Foster then did not depose Doctor Fields.