## Facts

- James Hession sued the City and County of San Francisco and a railroad for personal injuries allegedly including concussion, nerve root damage, and nervous shock.
- At counsel’s request, Dr. Joseph Catton (neurologist/psychiatrist) examined Hession twice solely to assist Hession’s attorneys in preparing the case.
- Catton did not advise, prescribe for, or treat Hession and testified there was no physician–patient relationship.
- In deposition, Catton refused to answer questions about Hession’s condition, asserting the attorney–client privilege, the physician–patient privilege (Cal. Code Civ. Proc. § 1881(2), (4)), and that his expert opinion was “property” not subject to compelled disclosure without compensation.
- The superior court sustained the privilege objections and did not compel answers.
- The City petitioned for a writ of mandamus to compel the superior court to order Catton to answer.

## Issues

1. Whether the physician–patient privilege applies when an examination is performed solely for litigation assistance and no treatment is contemplated or provided.
2. Whether the attorney–client privilege shields an examining physician’s observations and opinions when the physician acts as counsel’s agent for litigation preparation.
3. Whether an expert witness may refuse to provide opinion testimony on the ground that the opinion is the expert’s “property” that cannot be taken without compensation.

## Decision

- The California Supreme Court issued a writ of mandamus directing the superior court to order Dr. Catton to answer the deposition questions.
- The court held the physician–patient privilege did not apply because the examination was not for diagnosis or treatment.
- The court held the attorney–client privilege did not protect Catton’s testimony under these circumstances.
- The court rejected any asserted privilege allowing an expert to withhold testimony because the opinion is the expert’s “property.”

## Legal Principles

- The physician–patient privilege under Cal. Code Civ. Proc. § 1881(4) protects communications made to a physician in the course of a consultation for curative diagnosis or treatment; it does not apply to examinations conducted solely for litigation purposes where no treatment is contemplated or given.
- The attorney–client privilege under § 1881(2), though it can include communications through agents, is confined to confidential communications between attorney and client; it does not convert a third-party expert’s factual observations and opinions into privileged matter merely because the expert was retained by counsel for litigation preparation.
- California law recognizes no immunity allowing an expert to refuse to testify in a properly conducted deposition on the ground that the expert opinion is private property requiring separate compensation as a condition of disclosure.

## Conclusion

A doctor retained only to examine a plaintiff for litigation support, without providing treatment, may be compelled to testify in deposition because neither the physician–patient privilege nor the attorney–client privilege applies, and an expert has no “property” right to withhold relevant opinion testimony.


City & County of S.F. v. Superior Ct., 37 Cal. 2d 227, 231 P.2d 26 (Cal. 1951)