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Basham v. Babcock5/2/1996
GILBERT, J.
Here we hold that a party who has designated an expert to testify on a particular subject may not replace that expert with one stated on a supplemental list.
Plaintiffs appeal from a defense verdict in their personal injury trial. The trial court allowed an expert designated by defendant on a supplemental list to testify in place of the originally designated expert and on the same subject matter. Plaintiffs contend this is error under Code of Civil Procedure section 2034. We agree and reverse. [[/__*
FACTS
Garlyn A. Basham filed a complaint against Judith Babcock for damages arising out of an automobile accident. Babcock's automobile struck the driver's side door of Basham's automobile. At the time Basham's car was parked in a shopping center lot and Basham was in the car. He claimed he felt a sharp jolt that caused back injuries. Babcock claimed she was only going one or two miles per hour when she hit Basham's car. The defense theory was that back problems suffered by Basham were caused by a preexisting condition.
On November 28, 1994, the parties exchanged designation of experts. Basham designated his treating physicians Doctors Alex Gazaui and Robert Klein. He stated the experts were expected to testify as to the cause, nature and extent of his injuries, the cost of future medical care, and all related medical issues.
Babcock designated Doctor John Broms, an orthopedist, who had previously examined Basham for the defense. Babcock's attorney declared: "I am informed and believe that Doctor Broms will generally testify regarding the nature and extent of the injuries suffered by plaintiff, any pre-existing condition plaintiff may have suffered from, and the appropriateness of the medical treatment plaintiff received."
On December 2, 1994, Babcock served a supplemental designation naming Doctor Lawrence Harter, a radiologist. Babcock's attorney declared: "I am informed and believe that Doctor Harter will testify as to the physical condition of the plaintiff both before and after this incident. He will also testify as to causation of the plaintiff's physical condition."
Basham's attorney took Doctor Broms's deposition on December 22, 1994. Doctor Broms stated it was his opinion that Basham suffered a flare-up of preexisting degenerative disc disease, and that the accident caused the flare-up.
During the deposition the following colloquy took place between Basham's attorney and Doctor Broms:
"Q Okay. The MRI shows evidence of an annular tear. Can you tell us what an annular tear is?
"A The membrane that surrounds the disc is called an annulus, and it's a very thick membrane, and some radiologists feel that they can visualize a tear in this membrane. I am not good enough to be able to diagnose an annular tear. I don't know whether that's possible for me, period.
"Q Okay. Apparently you did see a report of the radiologist that performed the MRI, and they diagnosed an annular tear; is that correct?
"A Yes.
"Q Do you have any reason to doubt their diagnosis?
"A Yes.
"Q What is the reason to doubt their diagnosis?
"A Some radiologists don't feel that you can make that definitive a diagnosis."
Basham did not take Doctor Harter's deposition.
Trial began on January 18, 1995. The first two days were devoted to pretrial motions and jury selection. Basham did not then object to Doctor Harter. It was not until January 24, that Basham made a formal motion to exclude Doctor Harter's testimony. The motion was based on the theory that the supplemental
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