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Kalaba v. Gray2/7/2002
CERTIFIED FOR PUBLICATION
Although a designation of retained experts must be accompanied by the "expert witness declaration" described in Code of Civil Procedure section 2034, subdivision (f), no expert declaration is required for a treating physician who will be called to testify at trial as an expert witness. (Bonds v. Roy (1999) 20 Cal.4th 140; Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31.) But the transformation from treating physician to expert does not occur unless the treating physician is identified by name and address in the proponent's designation, and it is not enough that a plaintiff has "designated" as experts "all past or present examining and/or treating physicians."
FACTS
In 1996, Kathy Kalaba sued Robert Gray, M.D., for medical malpractice, alleging that in 1989 he had negligently failed to find an adrenal tumor. Dr. Gray answered and discovery ensued. In July 1999, in response to Dr. Gray's demand for the exchange of expert witness information, Ms. Kalaba served her designation of expert witnesses. (Code Civ. Proc., ยง 2034.) As relevant to this appeal, Ms. Kalaba identified two medical experts (Alan Steinberg, M.D., and Barry Pressman, M.D.) and "reserve the right to call as potential experts any and all [of her] past or present examining and/or treating physicians . . . ." In an accompanying declaration, Ms. Kalaba's lawyer described Drs. Steinberg's and Pressman's qualifications, stated as to each that he might "be called to testify on the issues of breach of the standard of care, causation and damages," and set forth the doctors' hourly fees for deposition testimony. Neither the designation nor the accompanying declaration identified any of Ms. Kalaba's past or present treating physicians. In September, Ms. Kalaba served a "De-Designation of Expert Witness" in which she "de-designate " Dr. Pressman and stated that she would "provide the name of her new radiology expert as soon as possible." Dr. Gray deposed all of the experts designated by Ms. Kalaba, but did not depose her treating physicians.
On January 3, 2001, the parties answered ready for trial. On the same day, Ms. Kalaba filed a list of witnesses that included Thomas Boswell, M.D., and Dr. Pressman. Dr. Gray moved to exclude any testimony by Drs. Pressman and Boswell, contending (1) Dr. Pressman had been "de-designated," and (2) Dr. Boswell had not previously been designated. The trial court granted Dr. Gray's motion and denied Ms. Kalaba's oral request to "augment" her designation (but granted her request for a continuance to allow her time to decide whether to "file a writ").
On January 8, Ms. Kalaba's lawyer faxed a letter to Dr. Gray's lawyer stating the plaintiff's position this way: "After due consideration, plaintiff will not be seeking review of the [trial court's] January 3, 2001 decision granting Dr. Gray's motion to exclude . . . . [ ] So as to avoid any claim of surprise, once trial does commence, please be advised that plaintiff does intend to subpoena those treating physicians identified by plaintiff in her deposition and/or in her answers to interrogatories (e.g., Drs. Frumowitz, Julian and Fuchs and perhaps others) and, pursuant to [Schreiber v. Estate of Kiser, supra, 22 Cal.4th 31,] ask them expert opinion questions. None of these doctors have agreed to testify and none have been retained. Plaintiff reserved this option of calling her treating doctors in her initial Designation of Expert Witnesses . . . ."
When the parties returned to court for trial, Ms. Kalaba told the court she intended to call three of her treating physicians (Drs. Frumowitz, Julian, and Fuchs) to testify about the standard of care. Dr. Gray objected and moved to
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