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St. Mary Medical Center v. Superior Court11/19/1996
HASTINGS, J.
The question we address in this petition is whether or not the provisions of Code of Civil Procedure section 2034 preclude depositions of experts who are utilized in connection with summary judgment or summary adjudication proceedings if there has not yet been an exchange of experts pursuant to that section. We conclude that where a party presents evidence that raises a significant question relating to the foundation of an expert's opinion filed in support of or in opposition to a motion for summary judgment or summary adjudication, a deposition limited to that subject should be allowed.
STATEMENT OF THE CASE
This is a medical malpractice action filed on June 23, 1994, by real parties in interest, husband and wife Giovanni G. and Connie Mennella, against, among others, St. Mary Medical Center, John Baker, M.D. and Guy Mayeda, M.D., petitioners. It is alleged that petitioners, and other defendants, negligently rendered medical care to Giovanni resulting in injuries for which he seeks monetary damages. Connie alleges damages for loss of consortium.
After answering the complaint, petitioners filed a motion for summary judgment. No trial date had yet been set. They raised the issue of statute of limitations and also asserted that none of them were negligent in the care and treatment of Giovanni. In support of the motion, they filed a declaration by Dr. Michael Jamison, a fellow of the American College of Cardiology and board certified in both internal medicine and internal medicine/cardiovascular disease. He rendered an opinion that none of the three petitioners were negligent in the treatment rendered to Giovanni. Two other defendants, Serge M. Tobias, M.D. and Winifried Waider, M.D., timely joined in the motion.
Real parties filed opposition to the motion, relying upon the declaration of Leslie Eber, M.D., to establish triable issues of fact relating to the negligence of petitioners. Dr. Eber declared that he was a board certified internist with a subspecialty in cardiology and that he had been retained by real parties in interest as an expert witness. He rendered an opinion that each of the petitioners, as well as Drs. Tobias and Waider, was negligent and breached the standard of care in treatment rendered to Giovanni. Pertinent to our Discussion herein is the following statement: "It is my professional opinion that the cardiology fellows at St. Mary Medical Center, Dr. Mayeda and Dr. Baker, and Mr. Mennella's attending cardiology physicians, Dr. Tobias and Dr. Waider used improper technique to establish the patentcy of the interarterial sheaths which had been placed in Mr. Mennella on May 13, 1993."
On February 16, 1996, petitioners noticed the deposition of Dr. Eber for March 18, 1996, and at the same time they served and filed a notice that they were taking their motion for summary judgment off calendar. Dr. Eber was served with a subpoena on February 21, 1996.
On February 28, 1996, counsel for real parties wrote to counsel for petitioners advising that he had instructed Dr. Eber not to appear for the deposition. He explained that Dr. Eber was a retained expert, therefore, the terms of section 2034 applied and until there had been an exchange of experts, Dr. Eber's deposition was premature. He did agree to produce Dr. Eber at that time.
On March 19, 1996, counsel for petitioners replied: "As you know, Dr. Eber was not subpoenaed as a designated expert. He was subpoenaed insofar as his Declaration in support of [real parties'] Opposition to our clients' motion for summary judgment." She suggested that she be allowed to depose Dr. Eber, and if not, that she would be compelled to seek court int
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