Paging Dr. F....

Belfiore-Braman v. Rotenberg, No. D072015 (D4d1 Jul. 13, 2018)

The Doctors keep a-coming.

Plaintiff is a patient. Defendant, Dr. D., is a doctor who allegedly messed up her sciatic nerve during a hip replacement. Plaintiff has a medical expert, Dr. M. And primary treating physician, Dr. O. Dr. D. has an expert, Dr. S. Dr. O referred Plaintiff to Dr. F., an MRI study guy, who never does a physical exam. He just reads film. Plaintiff subsequently switched primaries to Dr. P. All the docs are on the witness list, but only Dr. M. is a designated as an expert for Plaintiff.

In his depo, Dr. F. gets a little more expansive on causation than Dr, M, the expert. But it also seems like he’s freelancing, a bit. Dr. D. moves in limine to keep Dr. F’s testimony out, because (a) Dr. F. wasn’t disclosed expert; (b) his testimony was unreliable because it was out of his lane; and (c) it was duplicative under Evidence Code § 723. The trial court agrees, insofar as Dr. F. intends to testify about anything more than what he saw in the MRI study. There’s a trial. The jury finds no negligence; it doesn’t even reach the special verdict question on causation.

The Court of Appeal affirms. There’s some debate as to whether Dr. F is a treating doc or a non-retained percipient expert. That distinction mostly drives the kinds of disclosure that need to be made. It’s pretty clear the court believes that Dr. F. really went past being a treating doc—his testimony was based on more than just the facts he observed during treatment. But the court says it doesn’t really matter, because it doesn’t need to get into the disclosure issue to affirm.

That’s because the testimony was properly excluded under Sargon even if the disclosure was sufficient. Dr. F. was a film reader, not a surgeon. He didn’t review P’s medical records, or the report of the operation. So he wasn’t really in any place to opine on causation based only on his MRI study. Moreover, Plaintiff already had a doc expert, Dr. M., who covered all the ground on the issues of the standard of care, causation, and damages.

Affirmed.