In this medical malpractice action, the trial court did not abuse its discretion in excluding expert testimony from a non-retained expert witness under Evid. Code 723 which allows the trial court to limit the number of expert witnesses a party may call. The non-retained expert had performed a nerve scan which revealed that plaintiff’s sciatic nerve pain following hip replacement surgery performed by the defendant was caused by a pinching of the sciatic nerve by some excessive mechanical force. The expert was properly allowed to testify to what he observed; namely, the nerve damaged by excessive force, but also properly was kept from testifying as to what caused the excessive force as he had not performed hip replacement surgery or reviewed the operative report or the defendant’s medical records. Also, the trial court did not abuse its discretion in determining that the non-retained expert’s testimony regarding causation of damage to the nerve would be unnecessarily cumulative to the testimony of plaintiff’s retained expert who did testify on that subject—even if he offered a somewhat different explanation for how the damage occurred.
California Court of Appeal, Fourth District, Division 1 (Huffman, Acting P.J.); June 26, 2018 (published July 13, 2018); 2018 Cal. App. LEXIS 628