Plunkett

This appeal poses the question whether a party who intends to call a treating physician to testify at trial not only as to the physician’s treatment of a patient, but also to give an expert opinion on the standard of care that another physician should have employed when treating the patient, must provide an expert witness declaration during discovery. (Code Civ. Proc., § 2034, subds. (a)(2) & (f)(2); further section references are to the Code of Civil Procedure unless otherwise specified.)

Donna M. Plunkett (plaintiff) designated two of her treating physicians as persons whose expert opinion testimony she expected to offer in evidence in this medical malpractice action. (§ 2034, subd. (a)(1).) At trial, she sought to elicit their testimony not only regarding their treatment of her, including diagnosis and prognosis, but also concerning their expert opinions on the standard of care that Dr. Joseph T. Spaulding (defendant) should have used when he treated plaintiff. The court sustained defendant’s objection to the latter testimony on the ground that plaintiff had not provided defendant with expert witness declarations which are required for any designated expert who “has…

Concurring and Dissenting.—The determinative facts are few. Upon demand a party must provide a list of every expert whose opinion the party expects to introduce at trial. (Code Civ. Proc., § 2034, subd. (a)(1) [undesignated section references will be to this code].) There is no dispute the plaintiff complied with this provision, including her treating doctors on her expert witness list. “If any expert [thus designated] . . . is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion,” the party must also provide an expert witness declaration and produce discoverable reports and writings on which the expert relied. (Id., subds. (a)(2), (3), (f)(2) [subsequent undesignated subdivision references are to this statute].) As the plaintiff did not comply with this provision in connection with her treating doctors, the trial court refused to allow them to give their expert opinion on the issue of whether the defendant’s treatment came within the prevailing standard of care. It also denied her motion to submit a tardy declaration. (Subd. (/).)

I concur in the reversal of the judgment, and fully concur with part IV of the…

This appeal poses the question whether a party who intends to call a treating physician to testify at trial not only as to the physician's treatment of a patient, but also to give an expert opinion on the standard of care that another physician should have employed when treating the patient, must provide an expert witness declaration during discovery. (Code Civ. Proc., § 2034, subds. (a)(2) & (f)(2); further section references are to the Code of Civil Procedure unless otherwise specified.)

Donna M. Plunkett (plaintiff) designated two of her treating physicians as persons whose expert opinion testimony she expected to offer in evidence in this medical malpractice action. (§ 2034, subd. (a)(1).) At trial, she sought to elicit their testimony not only regarding their treatment of her, including diagnosis and prognosis, but also concerning their expert opinions on the standard of care that Dr. Joseph T. Spaulding (defendant) should have used when he treated plaintiff. The court sustained defendant's objection to the latter testimony on the ground that plaintiff had not provided defendant with expert witness declarations which are required for any designated…