Expert — continued from Page 46
formed those opinions independently of the litigation, is not considered “retained”. (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 [91 Cal.Rptr.2d 293.]) This is true even if the nonretained expert is ultimately called by a party at trial to offer opinions which are typically offered only by retained experts (e.g., whether a physi- cian’s conduct in a medical negligence action was below the applicable standard of care). In Schreiber, the California Supreme Court held that a treating physi- cian not specifically retained by Plaintiff to “form and express” expert opinions at trial, but nonetheless properly designated as a “nonretained expert,” was authorized to offer causation of injury opinions at trial, where these opinions had been formed “percipiently,” during the physi- cian’s care and treatment of the Plaintiff.
No expert declaration was therefore required for this nonretained expert. (Id., 22 Cal.4th at 35-39.) As the court observed, “As the leg-
islative history clarifies, what distinguishes the treating physician from a retained expert is not the content of the testimo- ny, but the context in which he became familiar with the plaintiff’s injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion. ...A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff’s injuries and medical history because of the underlying physician-patient relation- ship...” (Id., 22 Cal.4th at 35-36.) There is no attorney work product protection for the opinions of these potential experts, whose identities are discoverable and are
subject to being deposed at any time during the litigation. Nonretained experts will include not
only treating physicians, but other experts who are qualified to form opinions and do so independently of the litigation at issue. These would also include, for exam- ple, police officers, emergency EMT per- sonnel, accident investigators, forensic pathologists, building inspectors, engi- neers, and potentially others whose opin- ions concerning a matter ultimately sought to be introduced in later litigation were formed separate and apart from that litigation. As long as those opinions are contextually derived outside the scope of the litigation, these experts are properly considered nonretained. (Schreiber, supra, 22 Cal.4th at 34.)
See Expert, Page 52
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