## Facts

- Faith Dawn Schreiber was injured in an automobile collision involving Donald Wayne Kiser and alleged neck and back injuries.
- Kiser later died of unrelated causes; Schreiber sued Kiser’s estate and the City of Huntington Beach for damages.
- In discovery, Schreiber designated seven treating physicians as expert witnesses but did not serve expert witness declarations for them under California Code of Civil Procedure § 2034.
- The trial court granted a defense motion in limine limiting the treating physicians to percipient testimony and barring expert opinions.
- At trial, Schreiber called two treating physicians to give medical causation opinions that her injuries were caused by the collision; the court excluded their causation opinions based on the in limine ruling.
- The defense stipulated Kiser’s negligence, but the jury found the negligence did not cause Schreiber’s damages and returned a defense verdict.
- The Court of Appeal affirmed, reasoning that treating physicians opining on causation act as “retained” experts requiring declarations.
- The California Supreme Court granted review.

## Issues

1. Whether a treating physician designated as an expert may be precluded from giving causation opinions at trial under Code of Civil Procedure § 2034 solely because no expert witness declaration was served.
2. Whether a treating physician becomes a “retained” expert under § 2034(a)(2) merely by offering opinion testimony, including causation.

## Decision

- The California Supreme Court reversed the Court of Appeal and set aside the judgment for defendants.
- The Court held § 2034 does not require an expert witness declaration for a treating physician whose opinions were formed during diagnosis and treatment rather than for litigation.
- The trial court erred by excluding treating-physician causation testimony based only on the absence of expert declarations.
- The matter was remanded for further proceedings consistent with the Supreme Court’s opinion.

## Legal Principles

- Under Code of Civil Procedure § 2034, an expert witness declaration is required for experts “retained by a party for the purpose of forming and expressing an opinion” in anticipation of litigation.
- A treating physician is not a “retained” expert merely because the physician offers opinion testimony (including causation) at trial.
- The controlling inquiry is whether the physician’s opinions and their bases were formed and acquired independently of litigation in the course of treatment, rather than developed for the lawsuit.
- Excluding causation testimony from treating physicians on the theory that causation opinions are never “percipient” imposes an improper, impractical distinction inconsistent with the statutory scheme.

## Conclusion

Treating physicians who formed their causation opinions during the physician-patient relationship may testify to those opinions without expert witness declarations under § 2034; excluding such testimony solely for lack of declarations is error when the physicians were not retained for litigation.


Schreiber v. Estate of Kiser, 22 Cal. 4th 31 (Cal. 1999)