Clover v. Sanjana

Filed 4/6/06 Clover v. Sanjana CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Fletcher Clover (Clover) appeals from a judgment entered in his favor against Espi Sanjana (Sanjana). Primarily, he contends he would have obtained a larger verdict if the trial court had admitted evidence of dental expenses incurred after his teeth were injured in the accident for which Sanjana was allegedly responsible. We conclude the court erred and reverse the judgment.

I. FACTS AND PROCEDURAL HISTORY

The parties stipulated to the following facts. On September 24, 2002, a collision occurred between a bicycle ridden by Clover and a motor vehicle driven by Sanjana. Clover was transported by ambulance to the hospital, where he was treated for a concussion, a broken bone in his left hand, and multiple lacerations, contusions, and abrasions on his face, neck, arm, and legs. The treatment for these injuries was medically reasonable and necessary, and the $6,674.75 cost for the services was reasonable as well.

In addition, Clover contended that he sustained damage to his teeth as a result of the collision. Sanjana disputed this item of damage, and also contended that Clover's own negligence contributed to his injuries.

A. Clover's Designation of Experts

Clover identified three treating dentists whose expert testimony he expected to elicit at trial: Dr. Robert Gates, who treated two of Clover's teeth after the accident in 2002; Dr. Warren Wheaton, who determined that Dr. Gates's work had to be redone and provided part of the corrective treatment in 2003; and Dr. Randall Rowland, who treated Clover after one of the teeth broke off in 2004. (Former Code Civ. Proc., § 2034, subd. (a)(1).)^[1] The dentists were not designated as retained experts within the meaning of former Code of Civil Procedure section 2034, subdivision (a)(2).

B. In Limine Motions

Among the parties' motions in limine, Sanjana moved to preclude Dr. Wheaton from testifying as to the cause of the injury to Clover's teeth, on two grounds: (1) Dr. Wheaton could not give such an opinion to a reasonable medical certainty; and (2) he was designated as a treating dentist, rather than a retained expert witness. Because the written motions in limine have not been included in the clerk's transcript, we rely on the reporter's transcript of the hearing.

1. Motion to Exclude Wheaton's Testimony Regarding Causation

Sanjana argued that Dr. Wheaton should be precluded from opining that Clover's tooth broke as a result of a condition created by the accident, because he had testified in his pretrial deposition that he could not render the opinion with reasonable medical certainty. Sanjana pointed the court to the following excerpt from Dr. Wheaton's deposition: â€