Fatica v. Superior Court

California Court of Appeal Jun 13, 2002 No. G030753Published

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Holding. The trial court erred as a matter of law by granting a motion in limine to preclude a treating physician from providing expert opinion testimony, as such witnesses are permitted to testify regarding opinions formed through their training and experience.

Issues

Whether a treating physician may be prohibited from providing expert opinion testimony due to a failure to review all medical records prior to a deposition.
Whether a trial court may exclude expert testimony as a sanction for a perceived discovery infraction when less restrictive alternatives are available.

Disposition. Writ of mandate issued; trial court order vacated.

Quotations verified verbatim against the opinion

“It is clear from Schreiber that the superior court’s order prohibiting Mulvania, a treating physician, from testifying as to his opinions was wrong as a matter of law.”

“A treating physician is a percipient expert, but that does not mean that his testimony is limited to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony.”

Opinion

THE COURT.

Petitioners Tom and Nancy Fatica brought a personal injury action against Thomas Liljegren for injuries sustained in an automobile accident. Trial in this matter started this past Monday, June 10, 2002. Yesterday, June 12, 2002, petitioners filed this petition. We immediately stayed trial on the filing of the petition because it appeared from the petition that the superior court had erred in granting Liljegren’s motion in limine. In addition, the order deprived petitioners of a fair and reasonable opportunity to present a substantial portion of their case, and petitioners would be severely prejudiced if we did not intervene. (See

Omaha Indemnity Co. v. Superior Court

(1989) 209 Cal.App.3d 1266, 1273-1274 [258 Cal.Rptr. 66].)

The pertinent facts are not complicated. Several months before trial, petitioners went to an orthopedic surgeon, Richard Mulvania, for treatment

[352]

and ultimately back surgery. In accordance with Code of Civil Procedure section 2034, Mulvania was timely designated by petitioners as one of the expert witnesses they intended to call at the time of trial. (The other three experts are a vocational specialist expected to testify regarding loss of earnings, and two who are expected to testify regarding the accident and related events.)

Mulvania’s deposition was taken on May 21, 2002. Real party in interest was permitted to fully depose him about his diagnosis, treatment, and opinion as to causation. Near the beginning of his deposition, though, Mulvania conceded he had not reviewed any of petitioners’ records regarding prior medical treatment. He admitted receiving those documents, and that he intended to review them for trial; but, he pointed out that he testified “as little as possible” for his patients and had not had sufficient opportunity to review them. Surprisingly, counsel for real party in interest did not request that the deposition be continued, or that he be allowed to further depose Mulvania after he had reviewed these documents. Instead, he waited until the day of trial to file a motion in limine to prohibit Mulvania from testifying at all. Counsel’s argument was that he was “unable to obtain complete and meaningful expert witness testimony” from Mulvania “due to his failure to review plaintiffs’ medical records.”

Fatica v. Superior Court

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THE COURT.

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