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24 verdict Volume 1 2015 Non-Retained Experts continued from page 23 Again a treating physician is not consulted for litigation purposes but learns of the plaintiffs injuries and medical history because of the underlying physician-patient relationship. Moreover as held in Kalaba v. Gray 2002 95 Cal.App.4th 1416 it is not enough to simply designate as experts all past or present examining andor treating physicians. The physician and his or her address must be specifically identified. Thus the case law is clear that a party who intends to call a treating physician as an expert for opinion testimony must identify that physician in the designation of experts. But if the party fails to do so may the physician still testify about nonexpert percipient testimony i.e. nonopinion testimony Probably yes. However there is very little if any published California case law that addresses whether a treating physician can testify as a non-expert percipient witness. An unpublished opinion handed down last year by the California Fourth Appellate District Division Two Riverside addressed this issue. In Soto v. Knight Transportation E056536 9182014 the court held that the trial court did not abuse its discretion in excluding experts as to whom plaintiff failed to serve a timely designation of expert witnesses. However the court further held a treating physician who was not identified as an expert should have been allowed to testify as a percipient non-expert witness but only as to the treating physicians observations within the physicians personal knowledge. Any opinion testimony derived from those observations or personally known facts is inadmissible. The Soto court based its decision on related California case law and persuasive federal decisions. Specifically the court analyzed a California medical malpractice case where a physician was permitted to testify regarding a hospitals policy and personal knowledge of that policy. Thus the Soto court permitted the treating physicians non-expert factual testimony observations treatment diagnoses prognoses and billing despite the failure to provide a timely expert designation. Because the decision is not published Soto is not citable as precedent in California trial or appellate courts but it offers some insight into how an appellate court may approach this issue. One point of interest in the opinion is that after finding error in excluding the physicians percipient non- expert testimony the court held that error was harmless and did not warrant reversal of the defense judgment on nonsuit. The lay witness testimony if admitted would have been insufficient to meet the plaintiffs burden of proving that his injuries were caused by the accident. In short Schreiber Kalaba and Soto make clear that if the injured party does not designate the individuals treating physician to testify at trial by listing the physician by name and address the physician cannot offer any opinions at trial. The physician may be able to testify as to observations within the physicians personal knowledge however the utility of that evidence is questionable and any opinion testimony derived from those observations or personally known facts is inadmissible. Another important decision limiting a treating physicians testimony is Dozier v. Shapiro 2011 199 Cal.App.4th 1509. There the court of appeal held that the trial court was justified in barring the plaintiffs treating physician from testifying on the issue of standard of care and then dismissing the entire medical malpractice action. The treating physician had testified at his deposition that he was unable to determine whether the defendant surgeons treatment fell below the standard of care. Further the plaintiffs counsel never informed defense counsel about the treating physicians post- deposition change in testimony. On appeal the plaintiff argued that the treating physician was not asked whether he had an opinion as to whether defendant complied with applicable standard of care. The court was not persuaded however because at deposition plaintiffs counsel objected to questioning on the grounds that the treating physician was not being deposed as an expert and the questions went beyond the care and treatment of plaintiff and into expert opinion. The treating physician also testified that he had not been retained as an expert and all his opinions were based on his treatment of plaintiff as well as experience and qualifications. Plaintiffs counsel further stated on the record that defendant could redepose the treating physician if he was later designated. One year after the deposition the treating physician was asked to be an expert witness and he then received the defendant surgeons medical records and deposition transcript. Plaintiff argued that it was not until this time that the treating physician was able to formulate an opinion as to whether defendants treatment met the standard of care. Plaintiff failed however to continued on page 25