Opinion
C095009
04-26-2023
JANET PANIAGUA, Plaintiff and Appellant, v. JEAN MARTIN, Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. STK-CV-UAT-2018-0012301
EARL, J.Defendant Jean Martin rear-ended plaintiff Janet Paniagua's car and plaintiff sued. Defendant stipulated to negligence; causation and damages remained in dispute. As the trial date approached, defendant moved to exclude plaintiff's expert witnesses, alleging plaintiff failed to comply with Code of Civil Procedure section 2034 et seq. The trial court granted the motion, finding plaintiff's failure to comply with the statutes regarding expert disclosure was unreasonable. Plaintiff argues this amounted to an unwarranted terminating sanction and was error. She also argues the trial court erred in excluding testimony from her treating physician, medical and billing records, and photographs of her car purportedly after the accident.
Undesignated statutory references are to the Code of Civil Procedure.
Concluding the trial court abused its discretion in excluding plaintiff's witnesses, we shall reverse and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2017, defendant drove her truck into the back of plaintiff's Honda Accord while plaintiff was at a complete stop at an intersection. Plaintiff sued, alleging she suffered significant and permanent injury as a result of this crash. Defendant stipulated to her own negligence.
The matter was originally set for trial on April 6, 2020. Accordingly, the deadline to serve a demand for the exchange of expert witness information was January 27, 2020, and the corresponding deadline to serve expert disclosures was February 18, 2020. (See § 2034.010 et seq.) Due to the COVID-19 pandemic, trial was continued, first to June 8, 2020, and then to July 12, 2021. As discussed below, however, the trial continuances did not extend the deadline for expert disclosures.
Prior to trial, defendant moved to exclude testimony from plaintiff's experts, alleging plaintiff failed to comply with expert witness disclosure requirements. The trial court agreed, finding there was no evidence of proof of service of plaintiff's expert disclosure, and deemed inadmissible a proffered declaration from plaintiff's prior counsel, Janice Dudensing, in which she stated she mailed the disclosure on February 18, 2020. The court excluded plaintiff's experts from testifying, finding her failure to comply with the expert witness exchange requirements was unreasonable.
Trial was limited to causation and damages. Plaintiff's treating physician-Dr. Vinay Reddy-was one of the excluded experts. Plaintiff also sought to have Dr. Reddy testify as a percipient witness. Concerned that Dr. Reddy would offer expert testimony under the guise of a percipient witness, the trial court required an offer of proof as to Dr. Reddy's proposed testimony. Plaintiff submitted a written offer of proof.
The court excluded Dr. Reddy's testimony, noting that plaintiff's offer of proof included Dr. Reddy's testimony as an expert witness on medical bills. The court found the testimony, as explained in the offer of proof, was "a back door of getting in the expert testimony of Dr. Reddy that [the court had] excluded."
The court also excluded certain documents-medical records, medical bills, and property damage photographs-because they were offered as impermissible surrogates for the excluded expert testimony. Specifically, the court found there was no foundation for the medical bills and they contained inadmissible opinion testimony. Given the lack of any expert testimony, the court questioned how plaintiff could demonstrate the reasonableness of those medical bills, that the medical services were actually administered and reasonably necessary, and that the conditions that necessitated each medical bill was the approximate legal result of the injury caused by defendant.
Plaintiff was the only trial witness. She testified about the accident, her injuries, and aspects of her treatment. The jury concluded defendant's negligence was not a substantial factor in causing harm to plaintiff. As a result, the jury did not reach the questions on damages. On August 5, 2021, judgment in favor of defendant on special verdict was entered.
Plaintiff filed a motion for a new trial, in which plaintiff's counsel argued many of the same issues asserted here on appeal. The trial court denied the motion. Plaintiff timely appealed.
DISCUSSION
I
Exclusion of Witnesses
Plaintiff contends the trial court abused its discretion in excluding the testimony of her treating physician and her expert witnesses. We agree.
A. Additional Background
In defendant's motion to exclude plaintiff's expert testimony before the trial court, defendant asserted, "Based on the statutory deadlines imposed by C.C.P. § 2034.230(b), the parties were originally required to exchange experts by February 18, 2020 (50 days before trial)." Defendant then argued plaintiff's expert disclosure was not statutorily compliant in the following ways: "(1) the experts were not timely identified pursuant to C.C.P. 2034.230; (2) the untimely expert disclosure did not comply with the designation and disclosure requirements pursuant to C.C.P. § 2034.260 and the extension granted pursuant to the new trial date and C.C.P. 599; (3) the experts were not properly offered for deposition pursuant to C.C.P § 2034.280; (4) the declaration was not signed by counsel under penalty of perjury pursuant to C.C.P. § 2034.260(c); and (5) the experts files and reports were not timely produced pursuant to C.C.P. §§ 2034.270, 2034.415." In support, defense counsel recounted several interactions with plaintiff's original counsel, Janice Dudensing, regarding these disclosures. Defense counsel also recounted several interactions with plaintiff's new counsel, Edward Dudensing, who became attorney of record on May 27, 2021. The following is a summary of the relevant communications.
Edward Dudensing is Janice Dudensing's brother.
On February 21, 2020, defense counsel called plaintiff's original counsel, Janice Dudensing, to inquire about plaintiff's expert disclosure that had been due on February 18, 2020. Janice Dudensing said that she served the disclosure by mailing it on February 18, 2020. She further stated that she would fax a courtesy copy, but she was unsuccessful in her attempts to do so. She then told defense counsel she would try to scan and e-mail it, but if that did not work, she would hand deliver it. On February 22, 2020, Janice Dudensing e-mailed her disclosure of experts to defense counsel, and defense counsel acknowledges he received it that same day. This e-mailed version was the only disclosure defendant received.
The disclosure identified Dr. Reddy as a "retained expert" but also described him as plaintiff's treating physician. Dr. Reddy's address was provided as well as a statement that he would "testify about the care and treatment [plaintiff] received for her injuries and the cause of such injuries." Dr. Christopher Stephenson was also listed as a retained expert. Dr. Stephenson is a physical medicine and rehabilitation physician and was expected to testify to plaintiff's functional ability before and after the injuries.
We take this spelling from plaintiff's expert disclosure list; the doctor is also referred to as Dr. Stevenson elsewhere in the record. Stan Smith, Ph.D. was also listed as an expert but was later withdrawn.
On February 24, 2020, defense counsel sent Janice Dudensing a letter advising her that the disclosure did not contain a proof of service and was defective in various ways as to each of the listed witnesses. With respect to Dr. Reddy, counsel stated the disclosure did not indicate whether Dr. Reddy had prepared any expert reports nor had any reports been produced. Defense counsel indicated that if the deficiencies were not cured, he would seek to have the witnesses excluded.
On February 27, 2020, defense counsel sent Janice Dudensing an e-mail, in which counsel reiterated that he had not received a proof of service, the expert disclosure was defective as referenced in his prior letter, and he advised Janice Dudensing that she might be able to seek leave to remedy the deficiencies under sections 2034.710-2034.730. Defense counsel warned that if the defective disclosures were not cured, plaintiff's experts could be excluded at trial. E-mail correspondence between defense counsel and Janice Dudensing ensued and Janice Dudensing represented that her office had been burglarized and she would seek a trial continuance. At defense counsel's request, Janice Dudensing agreed to bring a copy of the police report for the burglary to the next settlement conference. The following week, Janice Dudensing attended the settlement conference. She never produced a police report.
The first set of depositions for Drs. Reddy and Stephenson were scheduled for March 10, 2020. According to defense counsel, their expert files and/or reports were due on March 5, 2020.
On March 6, 2020, defense counsel sent a letter to Janice Dudensing repeating assertions of plaintiff's failure to provide proof of service for the disclosure; cure the defects in the disclosure; and provide a police report regarding the burglary to her office. Defense counsel also asserted plaintiff's expert files were past due and had not been produced, preventing depositions from taking place.
On March 13, 2020, Janice Dudensing e-mailed defense counsel asking for a stipulated continuance of the upcoming trial, stating that she was stranded in Europe due to COVID-19 travel restrictions. On March 21, 2020, defense counsel sent Janice Dudensing a responsive letter indicating they were not in agreement with plaintiff's efforts to continue the trial. Defense counsel also noted Janice Dudensing's continued lack of response regarding plaintiff's defective disclosures, noted Janice Dudensing and her experts failed to appear at noticed depositions, and indicated they would move to exclude plaintiff's experts at trial.
On March 27, 2020, defense counsel filed a motion to exclude all of plaintiff's expert witnesses. From the record, it appears the motion was not addressed by the trial court until it held a hearing at the start of trial on July 12, 2021.
As a result of the COVID-19 pandemic, trial was continued to June 8, 2020, and again to July 12, 2021. Also as a result of the COVID-19 pandemic, the California Legislature enacted section 599, which states that for a continuance of a trial taking place after March 4, 2020, any discovery deadlines that had not passed as of March 19, 2020, including the exchange of expert witness information, would be extended as a matter of law to whatever the applicable deadline was for the new post-COVID trial date.
Although neither party argues a second demand for expert disclosures was required due to the continuance of the trial date, defendant served a second demand on April 14, 2021. Defendant also served an expert witness disclosure on May 24, 2021. Defendant served a second round of deposition notices by hand service and e-mail; the noticed depositions were to take place on May 27 and May 28, 2021. In these notices, defendant demanded each expert produce images, X-rays, other diagnostic studies pertaining to plaintiff, the expert's current curriculum vitae, documents generated or reviewed, and time and billing records.
On May 25, 2021, Edward Dudensing's firm e-mailed defense counsel providing notice that his firm would be taking over plaintiff's case immediately (and would notify the court as soon as possible) but would not be able to attend the depositions scheduled on May 27, 2021. On May 26, 2021, defense counsel responded by e-mail to lawyers in Edward Dudensing's office, that Janice Dudensing had not properly served plaintiff's expert disclosure list and any objection to the scheduled depositions for the next day were untimely.
On May 27, 2021, both counsel appeared at the scheduled deposition for witnesses Dr. Stephenson, Dr. Reddy and Stan Smith, although none of the experts appeared. Plaintiff's counsel noted for the record that plaintiff just obtained new counsel (substituted in that same day), and although new counsel previously notified defense counsel that he would be unavailable for the depositions on that day, he cancelled other appointments in order to attend. Plaintiff's counsel stated "of course plaintiffs will agree to produce the people that they listed in their expert disclosures for deposition. There's no question about that." Plaintiff's counsel stated that the "defendants just really weren't willing to work with us, even though we were just substituting into the case, to get a different date for these depositions, but we're still willing to work with defense to figure out some dates." Plaintiff's counsel requested defense counsel to cooperate on future dates for depositions. Defense counsel stated that he was usually willing to extend professional courtesy to opposing counsel but it was a matter of prior counsel's failure to comply with discovery requirements. The next day, May 28, 2021, only defense counsel appeared and noted the nonappearance of Dr. Stephenson and Stan Smith for the noticed depositions.
On June 8, 2021, plaintiff's counsel offered June 18, 2021, as a possible new date to depose Dr. Reddy.
On June 14, 2021, plaintiff's counsel offered June 24, 2021, as a possible date for deposing Dr. Stephenson.
Having not heard from defense counsel, on June 16, 2021, plaintiff's counsel inquired by e-mail whether defense counsel planned to depose Drs. Reddy and Stephenson on the dates offered. In response, defense counsel sent plaintiff's counsel via e-mail, a five-page letter, with multiple invoices attached. In the letter, defense counsel itemized the purported defects in plaintiff's expert disclosure, acknowledged having recently received plaintiff's notice of taking defense expert depositions, indicated they would not be producing defense experts for deposition, and offered "in an attempt to meet and confer and reach a reasonable resolution to this dilemma," the following: (1) plaintiff reimburse the defense, at a total of $21,362.35, for time and costs expended on plaintiff's failure to comply with discovery obligations; (2) plaintiff seek ex parte, an order shortening time to continue the trial date to allow time to complete expert discovery; (3) plaintiff produce her experts for deposition "before any of the defense experts"; and (4) the defense would produce its experts for deposition, upon completion of the depositions of plaintiff's experts. The next day, plaintiff's counsel responded via e-mail and rejected defense counsel's" 'conditions'" for taking plaintiff's experts' deposition. Counsel told defense counsel, "The bottom line is quite simple - we offered you dates for our experts before the expert discovery cut-off and you are simply trying to game the system by declining those dates and at the same time attempting to exclude these experts from testifying."
B. Motion to Exclude Experts
On July 2, 2021, defense counsel filed a second motion to exclude plaintiff's expert witnesses. Counsel repeated many of the same points claimed in the previous motion filed on March 27, 2020, updating the procedural history in light of trial continuances due to COVID-19. Counsel contended exclusion of plaintiff's experts were warranted based on the following: (1) the experts were not timely identified pursuant to section 2034.230; (2) untimely expert disclosure did not comply with the designation and disclosure requirements pursuant to section 2034.260; (3) the expert declaration was not signed by counsel under penalty of perjury pursuant to section 2034.260, subdivision (c); (4) the experts were not properly offered for deposition pursuant to section 2034.280; and (5) the experts' files and reports were not timely produced pursuant to sections 2034.270 and 2034.415. Defense counsel specifically noted that plaintiff's witnesses did not appear for depositions as subpoenaed on two sets of dates.
It is unclear whether this was meant to update or replace the motion filed on March 27, 2020; for practical purposes the distinction is immaterial.
Defendant also complained of the late disclosure of Dr. Travis Loidolt as a treating physician. The trial court precluded any expert opinion offered by Dr. Loidolt that exceeded the scope of his percipient opinions arising from rendering treatment to plaintiff. It does not appear he testified at trial; no issue is raised on appeal regarding Dr. Loidolt.
Defense counsel also filed separate motions in limine to exclude each witness listed on the expert disclosure: Dr. Reddy and Dr. Stephenson. These individual motions substantively mirrored the general motion to exclude all experts.
Plaintiff withdrew Dr. Taylor Smith and Stan Smith, Ph.D. as witnesses, rendering the motions to exclude these witnesses moot. Thus, we need not address any issue as it pertains to them.
Plaintiff's counsel, now Edward Dudensing, filed an opposition to the motions to exclude her experts. Counsel argued that the expert disclosure was timely mailed on February 18, 2020, as demonstrated by an attached declaration from original counsel, and that original counsel also ensured the expert disclosure was received by defense counsel by e-mailing the disclosure to counsel on February 23, 2020. Counsel also disagreed that the statement regarding the substance of the retained experts was insufficient as a matter of law, as all that is required is "a brief narrative statement" of the "general substance" of the expected testimony. (§ 2034.260, subd. (c)(2).) Counsel noted that Dr. Reddy was prepared to testify about the cause of plaintiff's injuries in addition to her care and treatment. Dr. Stephenson was to testify about plaintiff's functional ability before and after her accident and injury. Counsel also argued that plaintiff timely offered her experts for deposition because, pursuant to the extended deadline under section 599, she had until June 28, 2021, to offer her experts for deposition. (§§ 2024.030 [expert discovery cutoff 15 days before the trial date], 599 [extending discovery deadlines for COVID-19].) Counsel asserted plaintiff complied with this requirement, but defendant declined to depose her experts. Finally, counsel for plaintiff argued that any shortcomings in complying with discovery did not warrant completely barring all of her experts from testifying, which would eviscerate her case and constitute a terminating sanction. Such a sanction, plaintiff's counsel argued, was reserved for situations with a history of discovery abuse and only after a party fails to obey an order compelling discovery.
Defense counsel filed a reply to plaintiff's opposition. Defense counsel contended that plaintiff's prior counsel intentionally chose to ignore the required expert discovery procedure, or to seek any type of relief from the trial court, which also caused unreasonable and unfair expense to the defense. Counsel claimed plaintiff's new counsel was or should have been apprised of the discovery and trial deadlines prior to or shortly after he became attorney of record and could have easily cured the proper objections but chose not to do so.
C. The Trial Court's Ruling
On July 12, 2021, the scheduled trial date, the court issued a tentative ruling granting defendant's motion to exclude plaintiff's expert witnesses, Dr. Reddy and Dr. Stephenson. After hearing argument on the motions, the trial court affirmed its tentative ruling. The court excluded the declaration from plaintiff's original counsel, stating it was hearsay from a declarant who was not present, depriving defendant of the ability to crossexamine her. The trial court stated the ruling was based on the "extensive" record in the case and found that "plaintiff's failure to comply with the expert witness exchange requirements was unreasonable, and although CCP 2034.300 does not define unreasonable, the operative inquiry that I am supposed to make is whether the parties' conduct compromises the purposes of the discovery statutes, and that is actually under [Staub]."
The report of proceedings lists the reference as "Stabb." We presume this refers to Staub v. Kiley (2014) 226 Cal.App.4th 1437, as cited in the court's tentative ruling.
The court also requested an offer of proof regarding Dr. Reddy's testimony as a treating physician. Plaintiff complied. The offer of proof may be summarized as follows. Between August 2, 2018, and February 24, 2021, plaintiff saw Dr. Reddy nine times. Dr. Reddy's notation of the August 2, 2018, visit indicates that she was seen for a new patient consultation. The notes describe the exam, the diagnostic imaging reviewed, and possible treatment plans. In early visits, plaintiff described her pain as including a constant burning, neck and back pain, with numbness radiating from her neck to her right arm and sometimes hand. As part of the exam, she performed mobility exercises and Dr. Reddy also reviewed her MRIs. They discussed the continuation of her pain despite physical therapy and the possibility of injections to handle the pain. On February 26, 2019, Dr. Reddy performed an epidural injection on plaintiff; this was the first of four injections intended to ease her pain. The next five visits entailed reviewing plaintiff's pain level; Dr. Reddy observed stiffness in plaintiff's neck and back. Over the course of these visits, Dr. Reddy provided three different sacroiliac joint injections to address plaintiff's pain. Plaintiff reported to Dr. Reddy that the pain eased after the injections; at one point she felt up to 70 percent less pain. Dr. Reddy's notes regarding these visits, along with the associated bills, were part of plaintiff's proposed trial exhibits and were referenced in the offer of proof.
At the hearing on the offer of proof, defense counsel argued Dr. Reddy's testimony should be excluded because he never appeared for his depositions; although the defense acknowledged receiving records from Dr. Reddy by subpoena. Plaintiff's counsel argued that because the defense would not be surprised by Dr. Reddy's testimony, Dr. Reddy should be permitted to testify as to his treatment of plaintiff, the medical bills he issued for those treatments, and that the costs reflected in the bills were his usual rates. Counsel clarified that Dr. Reddy would not testify to the reasonableness of those bills. In response, defense counsel sought to exclude the medical records.Defense counsel argued that because the court excluded expert testimony, plaintiff cannot show the necessary causal link between the reasonableness and necessity of the treatments and medical bills related to the car accident. Without the ability to show the medical bills were reasonable, they were irrelevant.
Although defense counsel did not specify the nature of the records, we presume these to include those requested in the subpoena duces tecum attached to the deposition subpoena for May 27, 2021.
That same day, defense counsel filed motion in limine No. 16, seeking to exclude plaintiff from unilaterally introducing medical records. The parties addressed this motion at the same time as they addressed whether Dr. Reddy could testify as a percipient witness, although plaintiff was also provided an opportunity to submit an opposition.
In excluding the testimony of Dr. Reddy, the trial court stated, "I want to read into the record the specific language that troubles me. [¶] . . . Pages 838 through 839 is a true and correct copy of the bill for that visit; Dr. Reddy routinely charges the same rates for his procedures and visits. [¶] Dr. Reddy is routinely paid the rates he charges for these services." The trial court noted this language appeared twice in the offer of proof and excluded them as irrelevant in light of plaintiff's inability to present expert opinion testimony on the reasonable value of the services rendered. When plaintiff's counsel sought clarification as to whether the entirety of Dr. Reddy's testimony was excluded, the trial court stated, "That is the entire testimony right now, all right? I am concerned that you don't understand the gravity of the decision that I made yesterday. I excluded the expert testimony of those two expert witnesses because of the history of violations of the discovery statutes over the last 15 to 18 months. Your offer of proof I am finding is a back door way of getting in the expert testimony of Dr. Reddy that I excluded."
D. General Legal Principles and Standard of Review
The statutes governing expert witness discovery are part of the Civil Discovery Act. (§ 2016.010 et seq.) "The purposes of the discovery statutes are 'to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.' [Citation.]" (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950.) To accomplish these purposes, the Civil Discovery Act sets forth six methods of civil discovery in different chapters: depositions, interrogatories, inspections, medical examinations, requests for admission, and exchanges of expert witness information. (§ 2019.010.) Each discovery method authorizes the court to impose specific types of sanctions under specific circumstances.
As relevant here, the expert witness exchange is triggered by a timely written demand made by any party after the initial trial date is set. (§ 2034.220.) Section 2034.260 sets forth the general requirements for the exchange and the information to be provided, which includes a list of the names and addresses of the experts (§ 2034.260, subd. (b)(1)) and a declaration by the party's attorney setting forth the expert's qualifications (§ 2034.260, subd. (c)(1)), the expected nature of the testimony (§ 2034.260, subd. (c)(2)), and "[a] representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial" (§ 2034.260, subd. (c)(4)).
A party demanding an expert witness exchange "may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert . . . in the course of preparing that expert's opinion." (§ 2034.210, subd. (c).) When a demand for documents is made, "all parties shall produce and exchange, at the place and on the date specified in the demand, all discoverable reports and writings, if any, made by any designated expert ...." (§ 2034.270.) Failure to comply with these requirements can have severe consequences. Section 2034.300 provides that with certain exceptions not applicable here, "the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed" to do any of the four listed requirements.
We generally review the trial court's ruling on a motion to exclude expert testimony for abuse of discretion, including its determination that a party "unreasonably" failed to comply with an expert witness demand. (Boston v. Penny Lane Centers, Inc., supra, 170 Cal.App.4th at p. 952, italics omitted.) "A trial court's discretion is always delimited by the statutes governing the particular issue but when the exclusion of expert testimony rests on a matter of statutory interpretation, we undertake a de novo review. (Id. at p. 950.)" (Staub v. Kiley, supra, 226 Cal.App.4th at p. 1445; see also Board of Administration v. Wilson (1997) 57 Cal.App.4th 967, 973 ["The question is whether the trial court's actions are consistent with the substantive law and, if so, whether the application of law to the facts of the case is within the range of discretion conferred upon the trial court"].) We also review the trial court's ruling on the exclusion of nonexpert witnesses for abuse of discretion. (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476 [a trial court's ruling on the admissibility of evidence is generally reviewed for abuse of discretion].) Therefore, we must apply a deferential standard of review upholding the trial court's ruling unless it" 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.) "Even under this standard, there is still a substantial evidence component. We defer to the trial court's factual findings so long as they are supported by substantial evidence, and determine whether, under those facts, the court abused its discretion." (Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)
E. Analysis
Plaintiff argues the trial court erred when it found: (1) plaintiff had an obligation to disclose her retained expert witnesses, as there was no record defendant made such a demand; (2) defendant had standing to object to plaintiff's expert witness disclosure; (3) plaintiff failed to comply with the expert witness disclosure requirement; (4) plaintiff's failure to comply was unreasonable; and (5) plaintiff's unreasonable failure to comply warranted the exclusion of her experts. In response, defendant argues she had standing to challenge plaintiff's experts and the exclusion of expert witnesses was justified in light of plaintiff's repeated failure to provide a timely and code-compliant expert disclosure; produce any experts for deposition; produce any expert reports or files; and to seek leave of court to remedy these defects over a 15- to18-month period. Plaintiff disagrees that she failed to produce her experts, as she offered deposition dates for all her witnesses within the statutory deadline, as extended by section 599.
As the deadline for expert disclosure was prior to the March 19 deadline but discovery did not close until after March 19, this statute extended the deadline for discovery but not for the expert disclosure. Accordingly, we reject defendant's contentions that plaintiff had two additional chances to submit her expert disclosure as the trial was continued twice.
1. Plaintiff's Arguments
a. Defendant's Standing to Move to Exclude Plaintiff's Experts
Section 2034.300, provides, "[O]n objection of any party who has made a complete and timely compliance with Section 2034.260 [(concerning method and content of exchange)], the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] (c) Produce reports and writings of expert witnesses under Section 2034.270. [¶] (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410)." Thus, to have standing to object to expert testimony under section 2034.300, the objecting party themselves must have "made a complete and timely compliance" with all expert witness exchange requirements. (§ 2034.300; see Staub v. Kiley, supra, 226 Cal.App.4th at p. 1445.) Where no demand is made by any party, no party is required to comply with the statutory exchange requirements. (Hirano v. Hirano (2007) 158 Cal.App.4th 1, 6.)
The first point of contention is whether defendant had standing to challenge plaintiff's expert witnesses. Fatal to this allegation, however, is that plaintiff did not raise this issue before the trial court.
"In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court" as a matter of fairness to the court and opposing party, based on the need for an orderly and efficient administration of the law. (In re S.C. (2006) 138 Cal.App.4th 396, 406.) "The party also must cite to the record showing exactly where the objection was made." (Ibid.) Plaintiff has not only failed to point us to the record showing where the objection was made, but ignores the forfeiture issue altogether.
Plaintiff's counsel argues defendant failed to meet her burden of production where, as here, the record does not contain either a timely expert disclosure demand or a code-compliant expert disclosure. To the extent plaintiff's counsel is arguing that defendant's original burden of production in bringing the motion to exclude expert witnesses included an affirmative proof of standing, plaintiff cites no support for this argument. Moreover, plaintiff's challenge only highlights her forfeiture of the claim. Had plaintiff's counsel raised the objection before the trial court, defendant would have had the opportunity to address this issue, and the trial court would have had the opportunity to consider this argument when ruling on the motion. Indeed, the rules of discovery provide that unless and until a demand for exchange of information concerning expert trial witnesses becomes relevant to an issue in the pending matter, the demand shall not be filed with the court. (§ 2034.290, subds. (a) &(c).)
This court has previously determined that the trial court has inherent authority to exclude expert witnesses under section 2034.300. (See Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 427.)
Defendant asserts she filed a timely demand for expert witness disclosures on June 10, 2019. A copy of this demand, however, is not in the record. Defendant unsuccessfully moved to augment the record to include a document purporting to be her demand for expert disclosures dated June 10, 2019, and an attorney declaration in support of defendant's disclosure of expert witnesses dated February 18, 2020. We denied the request as to these two items because there is no indication that the documents were lodged or filed with the trial court. (Cal. Rules of Court, rule 8.155(a).) Defendant requests we take judicial notice of this demand, along with other documents, submitted in the form of a respondent's appendix. We decline to do so. "As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review." (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632, superseded by statute on other grounds.) Our review is limited to the showing produced at the time of a trial court's evidentiary ruling, and not the record as it may have developed later. (People v. Welch (1999) 20 Cal.4th 701, 739.) There is no indication these documents were part of the record considered by the trial court in ruling on the motion to exclude the experts.
We conclude that plaintiff forfeited the issue of standing by failing to raise it in the trial court.
b. Untimely Disclosure of Experts
Section 2034.230 provides in part that the disclosure of expert witnesses shall be 50 days before the initial trial date, or 20 days after service of the demand for an exchange of information, whichever is closer to the date set for trial. (§ 2034.230.) As indicated ante given the April 6, 2020, trial date, the deadline to serve expert disclosures was February 18, 2020.
Plaintiff contends the trial court erred in finding she did not comply with the disclosure deadline. It is undisputed that the only expert disclosure defendant received from plaintiff was via e-mail on February 22, 2020. Although plaintiff's original counsel represented she mailed the disclosure on February 18, 2020, counsel never provided a proof of service. As the trial court noted, the proof of service would have created a rebuttable presumption the documents were received at the defense attorney's office in the ordinary course of mail. (See Evid. Code, § 641.) The question is whether plaintiff's original counsel's declaration, submitted with the opposition to the motion to exclude experts, provided a proper substitute for the proof of service. We need not decide that issue, however, as we agree with plaintiff that where, as here, defense counsel had a copy of the expert disclosure within five calendar days of the deadline and well before trial, the purpose of the expert witness discovery statutes "to give fair notice of what an expert will say at trial" was satisfied. (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147 [the purpose of expert witness discovery statutes is "to give fair notice of what an expert will say at trial. This allows the parties to assess whether to take the expert's deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area"].)
c. Failure to Comply with Section 2034.260
i. Signed Under Penalty of Perjury
Defendant next complains that plaintiff's failure to sign the expert declaration under penalty of perjury constitutes noncompliance with section 2034.260. We agree. However, defendant cites no authority, nor are we aware of any, authorizing the exclusion of witnesses based solely on the failure to sign the declaration where, as here, the experts were disclosed and, as we just concluded, defendant was given fair notice of their identities.
ii. Substance of the Experts' Testimony
Next, we examine the substance of the expert disclosure declaration. In granting the motion to exclude expert testimony, the trial court agreed that plaintiff failed to remedy the deficiencies in the expert disclosure. In its ruling denying the motion for new trial, the trial court stated that the expert disclosures were not compliant because the expert declaration failed to adequately describe the expert's testimony, sufficiently identify the expert's area of expertise, and omitted curricula vitae of the doctors. As previously noted, plaintiff withdrew proposed expert Stan Smith before trial, rendering moot the motion to exclude him. To the extent the trial court's ruling applied to Dr. Reddy and/or Dr. Stephenson, it is unclear how the descriptions of the respective expertise and testimonies are insufficient, as the trial court did not provide its reasoning in this regard. The expert declaration for Dr. Stephenson provides his educational background, his current position as staff physician for Mercy Medical Group, and that he is a fellow of the American Board of Physical Medicine and Rehabilitation. It further states that he will testify, from the perspective of a physical medicine and rehabilitation physician, regarding plaintiff's functional ability prior to and after the subject injury. To the extent that an expert declaration is necessary for Dr. Reddy, the declaration states that he is a diplomate of the American Boards of Physical Medicine and Rehabilitation, Electrodiagnostic Medicine and Pain Medicine and would testify about the cause of plaintiff's injuries as well as her care and treatment. Although plaintiff does not describe what constitutes sufficient descriptions of expert testimony, these descriptions are similar to those found satisfactory in Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012. In that case, the declaration stated that a doctor "would testify 'to the medical care and treatment rendered to plaintiff as well as [his] diagnoses and prognoses of plaintiff's physical condition.' '' (Id. at p. 1040.) On appeal, the appellate court found this description met the requirement that a party must disclose the general substance of the testimony. (Id. at pp. 1040-1041; cf. Gallo v. Peninsula Hospital (1985) 164 Cal.App.3d 899, 903 [the expert disclosure and notice provisions were not followed when the defendant attempted to satisfy the requirements by a general clause reserving the right to call other expert witnesses listed by the other parties].)
As defendant noted in her motion in limine, the requirement that the declaration contain a "brief narrative statement of the general substance of the testimony that the expert is expected to give" (§ 2034.260, subd. (c)(2)), is meant to give "fair notice of what an expert will say at trial." (Bonds v. Roy, supra, 20 Cal.4th at p. 146.) Such notice allows the parties to assess whether to take the expert's deposition, what to explore at the deposition, and to select an expert who can respond with a competing opinion on that subject area. (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 96; see also Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1257-1258 [under former discovery statutes, a party was required to disclose the substance of the facts and the opinions, not specific facts or opinions, to which the expert will testify].) We conclude that the descriptions of the proposed expert testimony in this case meet the statutory requirement of a "brief narrative" of the proposed testimony and provides a fair notice of what the experts would say at trial.
d. Failure to Provide Reports
It is unclear why plaintiff's failure to provide reports warranted the experts' exclusion in this case, particularly where, as here, plaintiff's disclosure indicated that Dr. Stephenson did not prepare a report subject to discovery under section 2034.210, and defense counsel admitted in a pretrial conference that he had received copies of Dr. Reddy's files and that he sought to exclude Dr. Reddy's testimony based on his failure to appear for his deposition. (§ 2034.300, subd. (c).) Thus, there do not appear to be any reports subject to disclosure. Defendant has not identified any other reports for purposes of section 2034.300, and to the extent defendant is referring to documents sought through the expert witness deposition process, we address that below.
e. Failure to Produce Experts for Depositions
Defendant moved to exclude plaintiff's expert witnesses under section 2034.300, in part, due to counsel's failure to produce them for depositions on two separate sets of dates and failure to produce reports and files. Although we agree with plaintiff that the deadline for expert depositions was extended to June 28, 2021, that alone does not excuse plaintiff's original counsel's failure to produce her experts or explain the nonappearance of those experts for the prior two sets of noticed depositions.
Section 599 provides in relevant part: "Notwithstanding any other law . . ., a continuance or postponement of a trial . . . extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information .... The deadlines are extended for the same length of time as the continuance or postponement of the trial date." The deadline for expert disclosure had already passed and was not extended under section 599. But the original trial date and deposition deadline had not already passed as of March 19, 2020, and thus section 599 applied. In light of the new trial date of July 12, 2021, the deposition deadline was extended to June 28, 2021. (§§ 2024.030, 599.)
The first set of depositions were scheduled for March 9, 2020, and March 10, 2020; neither original counsel nor her experts appeared. In an e-mail from original counsel to defense counsel on March 13, 2020, it appears that original counsel was out of the country during this time. Original counsel did not address the missed depositions but asked for a stipulated continuance because she was stranded in Europe due to COVID-19 travel restrictions. On appeal, plaintiff does not acknowledge original counsel's noncompliance and instead argues that original counsel appropriately tried to seek a trial continuance well before the statutory deadline to produce expert witnesses (15 days prior to the April 6, 2020, trial date; see § 2024.030). We disagree that this excuses her noncompliance, and plaintiff offers no authority to the contrary. As defendant argues, if plaintiff could not comply with the noticed deposition requests, she was required to seek a remedy under section 2025.010 et seq. Specifically, plaintiff had to object to the deposition dates, or be subject to a motion to compel compliance. (See § 2025.450.) Alternatively, if plaintiff thought the discovery requests (including those regarding depositions) were inappropriate, she should have formally objected or sought a protective order. (§§ 2025.410, 2025.420.) Plaintiff's counsel pursued none of these remedies.
Plaintiff further argues that once new counsel took over the case, defendant refused to cooperate in scheduling expert depositions. On May 25, 2021, plaintiff's new counsel contacted defense counsel to provide notice of his taking over the case and to indicate his unavailability for the depositions scheduled on May 27, 2021-the same day new counsel became attorney of record. This objection was untimely. (See § 2025.410.) Defense and plaintiff's new counsel appeared for the first scheduled date, May 27, 2021, but expert witnesses did not. Plaintiff's new counsel made a record of substitution and unavailability. Defense counsel was the only party who appeared the following day, May 28, 2021, for scheduled depositions. Although plaintiff's new counsel offered new deposition dates before the June 28, 2021, deadline (June 18, 2021, and June 24, 2021), defense counsel declined to depose plaintiff's experts and refused to produce defense experts, due to plaintiff's noncompliance with discovery rules.
In light of these circumstances, we conclude that in failing to sign the expert declaration under penalty of perjury and failing to comply with the noticed depositions, plaintiff's original counsel did not comply with section 2034.260 or 2034.410. However, for the following reasons, we conclude that such failure did not warrant exclusion of the experts' testimony.
2. Exclusion of Witnesses Was Not Warranted
a. Expert Witnesses
The record demonstrates that plaintiff's original counsel violated the rules of discovery, but based on the facts and circumstances before us, we conclude the trial court abused its discretion in excluding plaintiff's expert testimony. That is because we cannot conclude that plaintiff unreasonably failed to comply with defendant's expert witness demand so as to justify excluding plaintiff's experts' testimony. (See Staub v. Kiley, supra, 226 Cal.App.4th at p. 1446.)
"Failure to comply with expert designation rules may be found to be 'unreasonable' when a party's conduct gives the appearance of gamesmanship, such as undue rigidity in responding to expert scheduling issues." (Staub v. Kiley, supra, 226 Cal.App.4th at p. 1447, citing Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504.) Defendant argues that "there is plenty of evidence of gamesmanship here." In particular, defendant cites to plaintiff's original counsel's representations that: the expert disclosure was timely mailed served; the disclosure had been faxed; and her law office had been burgled. Defendant argues these representations were not supported by any evidence; counsel failed to produce evidence of these events despite promises to do so. When new counsel became attorney of record, defendant argues, new counsel perpetuated original counsel's unreasonable behavior by maintaining there was no problem with the expert witness disclosure.
The relevant inquiry is whether the conduct being evaluated will compromise the purposes of the discovery statutes to help ascertain the truth, encourage settlement, expedite and facilitate preparation and trial, and to safeguard against surprise. (Stanchfield v. Hamer Toyota, Inc., supra, 37 Cal.App.4th at p. 1504.) That defendant received the expert disclosure several days after the deadline, but well before trial, did not compromise the purpose of the discovery statutes. Defendant cites no authority, nor are we aware of any, authorizing the exclusion of witnesses based solely on several days delay in the disclosure of expert witnesses. As argued by plaintiff's counsel below, the noncompliance did not result in surprise or an unlevel playing field as defendant knew the identity of the expert witnesses and the general substance of their testimony. Nor did counsels' actions ultimately prevent defendant from deposing plaintiff's expert witnesses, as the experts were disclosed prior to the expert discovery cutoff date. (Compare Cottini v. Enloe Medical Center, supra, 226 Cal.App.4th at p. 423 [where the plaintiff waited until after the discovery cutoff date to disclose his expert witnesses, he prevented the defendant from deposing them and exclusion of expert witnesses was warranted].)
Contrary to defendant's claim, this instant case is unlike Zellerino v. Brown (1991) 235 Cal.App.3d 1097. In that case, one of the defendants made a premature demand for expert disclosure. In response, Zellerino objected and requested the defendant withdraw its demand. (Id. at pp. 1101-1102.) The trial court granted the defendant's motion for relief from their mistake and entered an order compelling the exchange of experts that day. (Id. at p. 1103.) Zellerino did not comply with the order. Instead, six weeks after the discovery order, Zellerino sent defense counsel a letter informally naming two experts but stating they would not be available for depositions prior to trial. Six days before trial, Zellerino mailed her list of experts to the defendants. The trial court granted the defendant's motion to exclude Zellerino's expert testimony. (Id. at pp. 1112-1113.) On appeal, the appellate court concluded that the trial court properly granted the motion to exclude experts where Zellerino "failed to comply with any of the requirements of the expert disclosure statute thereby frustrating the purposes of the discovery act. Her actions were not mere infractions. The record discloses a comprehensive attempt to thwart the opposition from legitimate and necessary discovery. Zellerino's conduct prejudiced the defense, which did not have the ability to counter the testimony of the belatedly disclosed experts." (Id. at pp. 1117-1118.) In contrast, here, there was no surprise as to the identity of the experts, revealed only within a short time frame before trial, or evidence of any intentional attempt to thwart discovery. While plaintiff's original counsel was noncompliant with discovery rules, we do not find an intent to frustrate the discovery process and we find no evidence of gamesmanship on her part, or the part of new counsel. (Compare Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1026 [exclusion of expert witnesses warranted where the defendant's express intent was to wait to see the plaintiff's experts prior to disclosing his own] with Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 501 [where the defendants complied with the statutes regarding supplemental expert disclosure, prior to expert depositions, there was no intent to thwart discovery and exclusion of the supplemental experts was not warranted].)
On this basis, we disagree with defendant and our dissenting colleague that there is substantial evidence to support a finding of an appearance of, or actual, gamesmanship. Indeed, there is no evidence that prior counsel's noncompliance was a calculated attempt to put defendant at a disadvantage like the examples of gamesmanship appearing in the cases cited above." 'An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] . . . [Citation.] [¶] An abuse of discretion also occurs if the court applies an erroneous legal standard or its factual findings are not supported by substantial evidence." (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 110.) Here, because a conclusion of gamesmanship is not supported by substantial evidence, the exclusion of plaintiff's experts on this basis was an abuse of discretion.
The dissent's conclusion that "there is no clear lack of gamesmanship" (conc. & dis. opn., post, at p. 2) suggests a presumption of gamesmanship attaches to multiple violations without consideration of apparent strategy or intent. We do not agree the law provides for such a presumption. We reiterate that a finding of gamesmanship must be supported by substantial evidence. Regardless, we do not agree with the dissent's implicit conclusion that, under the circumstances present here, new counsel must also be constrained by prior counsel's actions.
Moreover, the order excluding plaintiff's experts from testifying at trial was in effect a terminating sanction, as it eviscerated plaintiff's case. Plaintiff bore the burden to prove that defendant's negligence was the legal cause of her injury. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314; see also Evid. Code, § 500.) Here, by excluding all expert testimony and medical testimony from Dr. Reddy, the treating physician identified as able to testify to causation, plaintiff had no way to attempt to meet that burden. (See Staub v. Kiley, supra, 226 Cal.App.4th at p. 1448.)
The "general rule [is] that a terminating sanction may be imposed only after a party fails to obey an order compelling discovery ...." (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426; see, e.g., Zellerino v. Brown, supra, 235 Cal.App.3d at pp. 1117-1118 [where exclusion of the plaintiff's experts was justified as a terminating sanction after the plaintiff disobeyed a discovery order]; Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1583-1584 ["[A]lthough the actions of appellant and his counsel may demonstrate a history of discovery abuses, without a disobeyed court order a terminating sanction was improperly imposed"].)
This general rule reflects an intent to allow a plaintiff her day in court while attempting to maintain an even playing field. Defense counsel repeatedly lists the hardships associated with plaintiff's original counsel in that she did not appropriately communicate, failed to meet and confer, and violated the rules of discovery. While we understand the challenges in dealing with plaintiff's prior counsel, and we do not condone her failure to follow the applicable discovery rules, defendant did not avail herself of any remedy offered by the discovery statutes prior to new counsel becoming attorney of record. Pursuant to section 2025.450, subdivision (a), where a deposition notice has been properly served and the party subject to the notice fails to appear or proceed with it, the party serving the notice may move for an order compelling the deponent's attendance and testimony. Alternatively, defendant could have pursued its motion to exclude plaintiff's expert testimony filed back on March 27, 2020. The record contains no indication that defendant sought either remedy. When it becomes clear that a party is an obstructionist who does not intend to answer discovery or comply with court orders, and lesser remedies will not avert misconduct, the court may legitimately impose a terminating sanction. (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799-800; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496-497 [terminating sanctions against a party who refused to be deposed, thwarted discovery, and violated orders].) We don't find that to be the case here.
While we recognize there are some circumstances that justify exclusion of expert witnesses without first involving the sanctioned party's failure to obey an order compelling discovery, we are not faced with that situation here. (Cf. Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [rejecting the contention that a lesser sanction should be imposed prior to terminating sanctions where the record supported a finding the defendants willfully failed to comply with discovery requirements].) New counsel took over plaintiff's case before discovery had closed. Rather than work with plaintiff's new counsel, defense counsel, while aware of new counsel having just substituted in, and knowing of new counsel's unavailability for scheduled depositions, refused to cooperate with rescheduling the next round of depositions, refused to depose plaintiff's experts, and refused to offer defense experts for depositions unless plaintiff paid for defendant's expenses for the missed depositions. This is despite the fact that the expert deposition deadline had been extended to June 28, 2021. When new counsel took over the case, defendant made no attempt to resolve the discovery dispute. (See Zellerino v. Brown, supra, 235 Cal.App.3d at p. 1111 [where the plaintiff failed to attempt to resolve discovery disputes through the statutory process in favor of relying on its" 'objection,'" it treated the issue as some sort of tactical windfall].)
" 'Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he [or she] would otherwise have been had he [or she] obtained the requested discovery, and should be proportionate to the offending party's misconduct.' (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.)" (Padron v. Watchtower Bible &Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259-1260.) Contrary to defendant's assertion, this was not a situation where the defense was prevented from taking timely depositions such that it did not have the ability to counter belatedly disclosed experts. (Cf. Zellerino v. Brown, supra, 235 Cal.App.3d at p. 1117 [where the plaintiff "not only failed to make her experts available for deposition [citation] she told counsel not to bother asking to take depositions"].) Thus, while we disagree with plaintiff that there was no history of discovery abuse, we agree that plaintiff's failure to comply with relevant discovery statutes was not unreasonable. We conclude the trial court abused its discretion in effectively imposing a terminating sanction against plaintiff before discovery closed, when there was still time to cure the transgression of the missed depositions, including the experts' obligations regarding document production.
b. Dr. Reddy's Testimony as Treating Physician
Plaintiff also alleges that the trial court erred when it excluded the entirety of Dr. Reddy's testimony as her treating physician. We agree.
When the defense sought to exclude plaintiff's experts' testimony, including that of Dr. Reddy, it alleged exclusion was warranted for plaintiff's failure to comply with sections 2034.260, 2034.300 and 2034.425-the provisions regarding expert witnesses. The trial court granted defendant's request to exclude Dr. Reddy as an expert and then excluded the entirety of Dr. Reddy's testimony out of concern that his testimony, as a treating physician, was a "back door" attempt to introduce expert testimony. The problem is that plaintiff proffered Dr. Reddy to testify as a treating physician, who is not subject to the expert disclosure requirements under section 2034.260 or the exclusion sanction under section 2034.300, and the trial court provided no basis for why excluding his testimony as plaintiff's treating physician was warranted. (Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 139.)
"Treating physicians generally are not 'retained' experts within the meaning of section 2034.210, subdivision (b). (Schreiber [v. Estate of Kiser (19999) 22 Cal.4th [31,] 36, citing former § 2034, subd. (a)(2).) Section 2034.210, subdivision (b) continues former section 2034, subdivision (a)(2) without substantive change. (See Cal. Law Revision Com. com., 21A West's Ann. Code Civ. Proc. (2007 ed.) foll. § 2034.210, p. 505.)" (Ochoa v. Dorado, supra, 228 Cal.App.4th at p. 139, fn. 10.)
The Supreme Court has articulated the status of a treating physician as a "percipient expert." (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35.) The high court explained: "[W]hat distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff's injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion. The contextual nature of the inquiry is implicit in the language of [former] section 2034, subdivision (a)(2), which describes a retained expert as one 'retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action.' (Italics added.) A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff's injuries and medical history because of the underlying physician-patient relationship." (Id. at pp. 35-36.)
"A treating physician is a percipient expert, but that does not mean that his [or her] testimony is limited only to personal observations. Rather, like any other expert, he [or she] may provide both fact and opinion testimony." (Schreiber v. Estate of Kiser, supra, 22 Cal.4th at p. 35.) Accordingly, treating physicians may testify, without an expert declaration, to the extent that their opinion testimony is based on facts acquired independently of the litigation, that is, facts acquired in the course of the physician- patient relationship and any other facts independently acquired. (Id. at p. 39; Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1520.)
The trial court acknowledged the request to have Dr. Reddy testify as a treating physician. The record demonstrates that the trial court's concern was not whether Dr. Reddy qualified as a treating physician, which our dissenting colleague seems to take issue with, but whether he would be permitted to testify regarding the bills for his services. Defense counsel's position was that Dr. Reddy could not testify regarding his medical bills because "plaintiff must establish through expert testimony a causal link between the reasonableness and necessity of the treatments and medical bills" to the car accident in order to prove damages. Defense counsel requested an "offer of proof from Plaintiff's counsel as to scope" of Dr. Reddy's testimony stating, "I have seen insinuation and innuendo before a jury to get around causation by making the Defense object to a question which infers treatment was related to the accident." Upon reviewing the offer of proof regarding Dr. Reddy's testimony, as well as the issue of whether Dr. Reddy should be able to testify to the medical bills he issued for plaintiff's treatments, the court precluded Dr. Reddy from testifying at all. The trial court was concerned about Dr. Reddy's testimony regarding the medical bills he issued, apparently concluding that testimony was reserved for retained expert witnesses. In excluding the entirety of Dr. Reddy's testimony, the trial court abused its discretion. The court could certainly have precluded Dr. Reddy from answering questions that ventured into the area of medical bills, but its wholesale exclusion of his testimony was not justified.
We note that, as a matter of law, a treating physician "who has gained special knowledge concerning the market value of medical services through his or her own practice or other means independent of the litigation may testify on the reasonable value of the services that he or she provided or became familiar with as a treating physician, rather than as a litigation consultant, without the necessity of an expert witness declaration." (Ochoa v. Dorado, supra, 228 Cal.App.4th at p. 140.) The parties did not discuss Dr. Reddy's qualifications, under Ochoa, to testify to the reasonable value of the services he provided. Rather, the focus of the discussion was whether Dr. Reddy was precluded from testifying about the medical bills in the light of the court's exclusion of expert testimony under section 2034.300.
Defendant argues that Dr. Reddy would have provided evidence of plaintiff's pain and treatment purportedly stemming from the accident, to which plaintiff testified. Dr. Reddy's testimony would not only have served to corroborate plaintiff's testimony, but the jury would have been able to consider the evidence in a different light-from the perspective of someone who was not personally vested in the outcome of the case. In addition, to the extent that he could have testified to the causation of plaintiff's injuries as a result of his physician-patient relationship, it would have provided critical evidence for plaintiff's case. (See Dozier v. Shapiro, supra, 199 Cal.App.4th at p. 1520 [a witness testifying as a treating physician may "include opinions with respect to subjects such as causation and standard of care"], citing Schreiber v. Estate of Kiser, supra, 22 Cal.4th at p. 39.) To the extent Dr. Reddy could only testify to the causation of plaintiff's injures as an expert witness, as we have previously noted, his exclusion was improper. Without evidence to show causation to a reasonable medical probability there is no factual question for a jury to resolve. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1385.) The exclusion of Dr. Reddy's testimony, particularly in light of the exclusion of expert testimony regarding damages, prevented the jury from ascertaining whether, and to what extent, plaintiff suffered physically and financially as a result of defendant's negligence.
As a result, we conclude the error in excluding Dr. Reddy's testimony, coupled with the exclusion of all expert testimony, prejudiced plaintiff.
II
Remaining Evidentiary Issues
In view of our conclusion the trial court abused its discretion in excluding plaintiff's expert witnesses and treating physician, it is unnecessary to address the propriety of the exclusion of the medical records, bills, or the photographic images of damages. The trial court's ruling excluding that evidence was based on its ruling excluding the testimony of foundational witnesses, which we have reversed. On remand, the defense is permitted to seek any restriction on evidence pursuant to the Civil Discovery Act. (See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 247 [Civil Discovery Act applies on remand for a new trial].)
III
Appellate Sanctions
In a separate motion, defendant requests this court to impose sanctions on plaintiff for taking a frivolous appeal. We have not informed plaintiff she could serve and file a written opposition and we conclude sanctions are not warranted in this case. (Cal. Rules of Court, rule 8.276(c), (d).)
In her motion, defendant asserts that sanctions are warranted under section 907, which states, "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." (§ 907.) She also asserts that sanctions are warranted under California Rules of Court, rule 8.276(a)(1), which states, "On motion of a party or its own motion, a Court of Appeal may impose sanctions . . . on a party or an attorney for: [¶] . . . [t]aking a frivolous appeal or appealing solely to cause delay." (Cal. Rules of Court, rule 8.276(a)(1).) Alternatively, she asserts that even if the appeal is neither frivolous nor filed solely for the purpose of delay, we have independent authority under California Rules of Court, rule 26(a) "to sanction a party who 'has been guilty of any . . . unreasonable infraction of the rules.'" (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 96.) Finally, defendant urges us to impose sanctions for plaintiff's violation of the duty of candor, set forth in the State Bar Rules of Professional Conduct, rule 3.3 and Business and Professions Code section 6068.
In light of our conclusion that remand for a new trial is appropriate, we disagree with defendant's argument that the appeal was frivolous or brought for the purpose of delay.
DISPOSITION
The judgment is reversed and the matter remanded for a new trial. Each side to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
I concur: HOCH, J. [*]
RENNER, J., Concurring and Dissenting.
I join the majority opinion only with respect to the decision to deny defendant's request for sanctions on plaintiff for taking a frivolous appeal. As to the remainder of the majority opinion, I dissent.
The plain language of Code of Civil Procedure section 2034.300 provides that "the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section 2034.260. [¶] . . . [¶] (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410)." (Italics added.)
Undesignated statutory references are to the Code of Civil Procedure.
The majority finds "plaintiff's original counsel did not comply with section 2034.260 or 2034.410," but nonetheless concludes this failure did not warrant exclusion of her experts' evidence because it "cannot conclude that plaintiff unreasonably failed to comply." (Maj. opn. ante, at pp. 22, 23.) "We review the trial court's reasonableness determination under section 2034.300 for abuse of discretion." (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950.) The majority's analysis fails to properly apply this standard of review." 'Where the issue on appeal is whether the trial court has abused its discretion, the showing necessary to reverse the trial court is insufficient if it presents facts which merely afford an opportunity for a different opinion: "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice." '" (Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1504.)
The exclusion sanction also applies where a party has unreasonably failed to "[p]roduce reports and writings of expert witnesses under Section 2034.270." (§ 2034.300, subd. (c).) The record appears sufficient to support a finding that plaintiff violated this rule. Nonetheless, it is unnecessary to delve into further discussion on this issue.
"Failure to comply with expert designation rules may be found to be 'unreasonable' when a party's conduct gives the appearance of gamesmanship." (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447.) The majority sidesteps what should be the focus of its analysis by stating, "The relevant inquiry is whether the conduct being evaluated will compromise the purposes of the discovery statutes to help ascertain the truth, encourage settlement, expedite and facilitate preparation and trial, and to safeguard against surprise." (Maj. opn. ante, at p. 23.) To support this statement, the majority cites an opinion upholding a trial court's decision not to impose the exclusion sanction after respondent's damages expert stated at his deposition "he had not completely developed his opinions concerning appellant's damages and needed approximately 16 hours to complete his work." (Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1503.) The appellate court stated, "it seems clear [respondent's expert's] lack of readiness at the appointed hour was attributable not to gamesmanship, but to the brief time span between [appellant's expert's] deposition and his." (Id. at p. 1504.) Further, the court stated, "We perceive no abuse of discretion in this ruling. The slight delay which would have been incurred had appellant responded promptly to the situation on July 6, 1993, would in no way have compromised the purposes of the discovery statutes. 'They are intended, among other things, to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.'" (Ibid.) Not only does the majority engage in what is effectively a de novo review of the issue, but it has omitted the purpose of preventing delay from its discussion of the purposes of the discovery statutes. Here, there is no clear lack of gamesmanship. The majority's detailed recitation of the relevant facts demonstrates substantial evidence from which the trial court could reasonably conclude there was the appearance of gamesmanship. The trial court excluded the expert testimony "because of the history of violations of the discovery statutes over the last 15 to 18 months." It would be reasonable for the trial court to conclude these violations, including failure to appear at noticed depositions, resulted in substantial impediments to defense counsel's ability to depose experts and prepare for trial. Therefore, I cannot conclude the trial court abused its discretion excluding the expert testimony.
The majority concludes that "the order excluding plaintiff's experts from testifying at trial was in effect a terminating sanction." (Maj. opn. ante, at p. 26.) I note that section 2034.300 is unlike statutes governing other methods of discovery that provide evidence sanctions, issue sanctions, and terminating sanctions may be imposed only after a motion to compel is made and granted and the party to be sanctioned has failed to comply with that order. (E.g., §§ 2025.450, subd. (h), 2030.300, subd. (e), 2031.310, subd. (i); see New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.) Rather, section 2034.300 mandates the exclusion of experts where a party has unreasonably failed to meet certain discovery requirements and the objecting party has complied with section 2034.260. (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 427-428.) Section 2034.300 contains no exception where this exclusion would amount to a terminating sanction. Regardless, I cannot join the majority's conclusion that the court issued what amounted to a terminating sanction. The majority concludes a terminating sanction was issued because the court excluded "all expert testimony and medical testimony" and thus prevented plaintiff from proving causation. (Maj. opn. ante, at p. 26, emphasis added.) Plaintiff, however, makes no such representation. Rather, plaintiff argues the exclusion of experts is always a terminating sanction. The record does not support the argument the majority advances on plaintiff's behalf. Indeed, the trial court transcript reveals plaintiff intended to call one of the doctors she visited, Dr. Loidolt, and simply decided not to during trial. As such, I cannot conclude the trial court prohibited plaintiff from introducing any medical testimony or proving causation. Applying the correct standard of review, I see no basis to overturn the trial court's ruling excluding plaintiff's expert witnesses.
Relatedly, I disagree with the majority's conclusion that the trial court erred when it excluded the entirety of Dr. Reddy's testimony "as her treating physician." (Maj. opn. ante, at p. 28.) "We review the trial court's decision to admit or exclude evidence for abuse of discretion." (People v. Dworak (2021) 11 Cal.5th 881, 895.) The majority states, "The court could certainly have precluded Dr. Reddy from answering questions that ventured into the area of medical bills, but its wholesale exclusion of his testimony was not justified." (Maj. opn. ante, at pp. 30-31.) I disagree based on the offer of proof in the record. "To preserve an evidentiary ruling for appellate review, the proponent of the evidence must make an offer of proof regarding the anticipated testimony. [Citation.] The offer of proof must address the 'substance, purpose, and relevance of the excluded evidence' (Evid. Code, § 354, subd. (a)), and must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued." (People v. Carlin (2007) 150 Cal.App.4th 322, 334.)
The majority quotes the following language from Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 without appreciating its significance: "[W]hat distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff's injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion. The contextual nature of the inquiry is implicit in the language of [former] section 2034, subdivision (a)(2), which describes a retained expert as one 'retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action.' (Italics added.) A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff's injuries and medical history because of the underlying physician-patient relationship." (Id. at pp. 35-36.) (Maj. opn. ante, at p. 29.)
After the trial court excluded the expert testimony of Dr. Reddy, plaintiff's counsel indicated he still planned to call Dr. Reddy as a treating physician. The court responded, "The only briefing that I got was about Dr. Loidolt. I didn't get any briefing that Dr. Reddy was a treating physician." Defense counsel argued the record suggested Dr. Reddy was a "retained doctor" and not a "treating doctor" and ultimately asked for an offer of proof. An expert witness disclosure is required to state the expert's hourly and daily fee for "consulting with the retaining attorney." (§ 2034.260, subd. (c)(5).) Here, it was disclosed that Dr. Reddy's "fee for consulting is $700 per hour." The disclosure did not, as the majority suggests, "describe[] him as plaintiff's treating physician." (Maj. opn. ante, at p. 5.) The first date listed on the offer of proof on which plaintiff saw Dr. Reddy was August 2, 2018, nearly 10 months after the accident. The complaint was signed August 30, 2018. The offer of proof never explains when Dr. Reddy was first retained. This was a critical omission. The offer of proof in the record also does not attach any of the documents it purports to attach. As such, I cannot conclude the offer of proof adequately addressed whether Dr. Reddy was truly a treating a physician.
Additionally, I cannot conclude plaintiff laid an adequate foundation for any testimony by Dr. Reddy that the majority suggests should have been allowed. In essence, Dr. Reddy offered to testify that plaintiff complained to her of pain, that plaintiff stated these pains started following her car accident, that on one occasion Dr. Reddy observed back and neck stiffness, that Dr. Reddy eventually gave plaintiff injections, and that Dr. Reddy routinely charges and is paid the rates he charged plaintiff. In excluding the testimony of Dr. Reddy, the court explained that plaintiff "asked whether [she] could have an offer of proof for Dr. Reddy who [she] claimed would be called as an expert, to now testify as the treating doctor" and ultimately expressed the belief that "this is just a back door way of getting in expert testimony" that had been excluded. The court explained, "an offer of proof under Evidence Code [section] 354 is a statement that explains the substance, purpose and relevance of excluded evidence." The offer of proof only stated proposed testimony rather than the purpose and relevance. The majority states, "to the extent that [Dr. Reddy] could have testified as to the causation of plaintiff's injuries as a result of his physician-patient relationship, it would have provided critical evidence for plaintiff's case." (Maj. opn. ante, at p. 31.) The offer of proof is notably devoid of an offer to testify as to a diagnosis or cause of plaintiff's complaints. The majority suggests Dr. Reddy's testimony would have been relevant to corroborate plaintiff's testimony about her pain and treatment purportedly stemming from the accident. (Maj. opn. ante, at p. 31.) The probative value of any testimony regarding plaintiff's complaints of pain and the fact Dr. Reddy gave her injections was limited by the fact Dr. Reddy was not offering to opine about a diagnosis or cause of pain and would have been prohibited from relaying to the jury any of plaintiff's statements suggesting the accident caused her pain or how her pain was prior to her visits. (See People v. Williams (1960) 187 Cal.App.2d 355, 365 ["a history given by a patient to his physician is admissible only as a basis for the expert opinion of the latter and never as substantive proof of the facts so stated to him by the patient"].) I cannot conclude the trial court erred in excluding Dr. Reddy's testimony as a treating physician because I cannot conclude plaintiff submitted an adequate offer of proof for the admission of any evidence.
RENNER, Acting P. J.
[*]Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.