Experts may not testify on subjects not in expert witness declaration unless party successfully moves to expand scope of testimony

Law Reporter, Sep 1999

Bonds v. Roy, 83 Cal. Rptr. 2d 289 (1999).

The Supreme Court of California held that trial courts may preclude an expert from testifying on a subject that was not previously described in an expert witness declaration.

Here, a man sued a surgeon for medical negligence, claiming defendant had negligently severed a major nerve in plaintiff's right arm, leaving him with little use of that arm and hand. An orthopedic surgeon hired by defendant testified at deposition that his testimony would pertain largely to damages. He said he had been hired to evaluate the disability of plaintiff pretrial and to determine how much disability he was experiencing prior to the surgery, based on the medical records. He did not expect to testify on standard of care issues that might arise in the case.

At trial, during the afternoon recess of the last day of testimony, defendant's attorney tried to expand the scope of the expert's testimony to include two new areas: whether plaintiff's injury was consistent with a stretched rather than a cut nerve, and the standard of care as to immediate reoperation and consultation with a neurologist.

The trial court stated any expansion of the expert's scope of testimony would be unfair, prejudicial, and a surprise to plaintiff. The expert testified solely about plaintiff's disability and vocational opportunities. The jury returned a verdict for plaintiff.

An appellate court affirmed, holding that the trial court had properly limited the expert's testimony to the area described in the expert witness declaration.

On appeal to the state high court, defendant argued that under the state's civil procedure code, CAL. Civ. PRoc. CODE 2034, the only prerequisite for expanding the scope of expert testimony was the submission of an expert witness declaration. Because such a declaration had been submitted, defendant argued, the trial court had abused its power by limiting the scope of the expert's testimony.

Affirming, the court noted that although the statute requires an expert witness declaration, this is not enough to expand the scope of testimony. A motion to add a new area of testimony-which defendant had not made-is also required. If the motion is denied, then the testimony is to be excluded. The purpose of this provision is to give the other side fair notice and to allow the parties to prepare properly for trial. The court reasoned that allowing new and unexpected testimony for the first time at trial so long as a party has submitted an expert witness declaration would be inconsistent with the purpose of the statute.

Plaintiff's Counsel:

*Howard D. Krepack, Los Angeles, Cal.

*Steven J. Kleifield, Los Angeles, Cal.