Denise Easterby’s neck was injured while she was undergoing dental treatment. During his deposition, her treating surgeon testified that he was unable to say that the dental accident was the cause of her injury. This was because he had been provided with a medical record that erroneously stated she had been involved in an automobile accident at the same time. After the deposition, he learned that the record was in error, and there was no auto accident. Easterby’s counsel notified the defense that the doctor had changed his mind, and would testify at trial that the dental accident caused her injury. The defense did not re-depose the doctor, but convinced the trial court to exclude his new opinion, resulting in a nonsuit.
The Ehrlich Law Firm obtained a reversal, convincing the appellate court that because the defense had been put on notice of the doctor’s new opinion, they could not exclude it at trial under Kennemur v. State of California, 133 Cal.App.3d 907 (1982). Easterby v. Clark, 171 Cal.App.4th 772 (2009).