California is generally regarded as providing broad leeway for non-retained experts to testify on a range of matters. Several recent decisions, however, have narrowed the scope of permissible testimony for non-retained treating physician experts. Defense counsel, including those handling medical malpractice cases, should take advantage of these decisions in expert depositions, pre-trial motions, and Evidence Code 402 hearings, as the cases may be fatal to a plaintiff’s claim.

Retained Versus Non-retained Experts -

By statute in California, any party may demand a mutual and simultaneous exchange of information about all persons whose expert opinion the parties expect to offer at trial. Failure to timely exchange generally precludes the presentation of expert evidence at trial, which may result in crucial evidence being excluded. Each party must exchange a list setting forth the name and address of each person whose expert opinion the party expects to offer in evidence at trial. there are two types of physician experts, retained and non-retained. Non-retained experts, such as a plaintiff’s treating physician, are percipient witnesses who can be called upon to give their expert opinions based on their observations. Thus, although a treating physician is a percipient expert, that does not mean that his or her testimony is limited only to personal observations. A treating physician can provide opinion testimony based on the facts independently acquired and informed by the physician’s training, skill, and experience.

Originally published in the Verdict, Volume 1 - June 2015.