(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)
It is also worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
1) Allowing Dr. Lee to Testify regarding the Standards of Care for the plastic surgeon or the hospital, would violate the holdings of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919; Jones v. Moore (2000) 80 Cal.App.4th 557; and Bonds v. Ray (1999) 20 Cal.4th 140.
In Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919, the Fifth District held that where the plaintiff sought to elicit causation opinion testimony of an expert at trial, where that expert was not designated to give expert opinion testimony regarding causation, and where that expert had said he had no opinion regarding causation at three prior depositions, exclusion of this new area of testimony is required. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Kennemur was followed by the legal malpractice case of Jones v. Moore (2000) 80 Cal.App.4th 557, and the medical malpractice case of Bonds v. Roy (1999) 20 Cal.4th 140. In Jones, the Plaintiff’s expert testified at deposition he had an opinion about whether the defendant complied with the standard of care in negotiating a divorce decree, but not in other areas. At trial, the trial court, as in the present case, excluded any opinions of the expert outside the opinions testified to at his deposition. The Second District held that under California law, the expert was limited to those areas he had testified to at his deposition. Id at p. 564-565.
In Bonds v. Roy (1999) 20 Cal.4th 140, at the expert’s deposition, the expert specifically confirmed he did not intend to express any opinions regarding the standard of care issues in the case. At trial, defense counsel sought to expand the scope of the expert’s testimony to include the applicable standard of care. The trial court denied the request and the Supreme Court affirmed. Id at 146-147.
Here, it is abundantly clear that Dr. Lee was not designated to testify regarding the standard of care for the plastic surgeon and nurses, that he is not qualified to do so, that he expressly disavowed such expertise three times to date, and that he refused to go into such areas in his deposition. Under the holdings of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919; Jones v. Moore (2000) 80 Cal.App.4th 557; and Bonds v. Ray (1999) 20 CaUth 140, such additional expert opinion testimony is not properly permitted. (See Part 5 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.