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Schreiber v. Estate of Kiser11/30/1998
I.
Using medical experts to show the cause of an effect is not new. In 1742, James Annesley was charged with murder for shooting a poacher. The case turned on whether Annesley shot the poacher accidentally or intentionally. Annesley hired a surgeon to testify as an expert witness on his behalf at trial in London's Old Bailey. The surgeon said that he introduced a probe into the poacher's wound and traced the path of the bullet. The bullet had not traveled downward, which would have been the case if the gun had been purposefully aimed from the shoulder, as the prosecution's chief witness had testified. Annesley was acquitted. (See Landsman, One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey 1717-1817 (1998) 16 Law. & Hist. Rev. 445, 456-457, 471.)
In the case before us there was also an attempt to use medical experts to show the cause of an effect. The effect here is numerous aches and pains felt by the plaintiff, Faith Dawn Schreiber, and in particular her neck: She feels "terrible" neck pain, radiating down into her upper back, between her shoulder blades, down her arms and into her hands. The alleged cause of these pains was an auto accident in Huntington Beach in 1993 in which Schreiber's car collided with a car driven by Donald Wayne Kiser. Kiser later died for reasons unrelated to the accident and Schreiber sued his estate, plus the city of Huntington Beach.
During the discovery phase of the case Schreiber designated seven treating physicians as expert witnesses, but failed to provide any kind of narrative statement of the general substance of the testimony they were expected to give. (See Code Civ. Proc., § 2034, subd. (f)(2)(B).) In response to a motion in limine, the trial court ruled that the physicians could testify as "percipient witnesses but not as experts." That meant they could not formally opine that Schreiber's pains were caused by the accident. By contrast, the defendants were able to present testimony that Schreiber's neck and shoulder pain and other complaints existed prior to the accident.
After the defense stipulated to Kiser's negligence, the jury returned a defense verdict on the damages issue, specifically finding that Kiser's negligence in operating his car was not the "legal cause" of Schreiber's damages. Schreiber now appeals from the judgment, arguing that if her treating physicians had been allowed to testify to the causal relationship between her symptoms and the accident, the result might have been different. As we shall now explain, the trial court was correct in precluding Schreiber's treating physicians from testifying as to the cause of her back and neck troubles.
II.
A.
Subdivision (f)(2)(B) of section 2034 of the Code of Civil Procedure requires litigants, in response to a demand for an exchange of information concerning expert witnesses, to provide a "brief narrative statement of the general substance" of an expert's testimony. This requirement, however, only applies when the expert is one "described in paragraph (2) of subdivision (a)" of the same statute. (See § 2034, subd. (f)(2) ["If any witness on the list is an expert as described in paragraph (2) of subdivision (a), the exchange shall also include . . . an expert witness declaration . . . . This declaration shall contain: [ ] . . . . (B) A brief narrative statement of the general substance of the testimony that the expert is expected to give."].)
For its part, paragraph (2) of subdivision (a) cross-references subdivision (f)(2)(B)'s requirement for "an expert witness declaration" where the witness was retained by a litigant "for the purpose of forming and expressing an opinion in anti
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