Plaintiffs sued defendant for negligence and loss of consortium in an auto accident case. After defendant went to prison for felony drunk driving and stopped participating in the case, the trial court granted defendant’s insurer’s motion to intervene. The insurer retained Horvitz & Levy before trial to consult with defense counsel in anticipation of a possible appeal.
At trial, the plaintiffs’ life care planning expert, Dr. Thomas Zweber, testified about the total cost of plaintiff’s past and future medical care—even though his pretrial disclosure and deposition testimony were limited to identifying plaintiff’s medical care needs, and both he and plaintiffs’ counsel repeatedly represented that a separate medical billing expert (Andrew Morris) would supply the cost opinions. Dr. Zweber’s cost testimony was the only evidence of past and future medical expenses presented at trial. The jury awarded the exact amounts he testified to—$1,002,730 for past medical expenses and $5,360,000 for future medical expenses—plus noneconomic damages, for a total verdict of $8,862,730.
The defense moved for a new trial on economic damages. The trial court denied the motion and the defendant’s insurer appealed.
Horvitz & Levy took the lead in briefing and arguing the appeal. We argued that the trial court abused its discretion by permitting Dr. Zweber to testify about medical costs that exceeded the scope of his pretrial disclosures and deposition testimony, depriving the defense of fair notice and a fair opportunity to prepare cross-examination or rebuttal. We further argued that the error was prejudicial because that was the only evidence of medical care costs plaintiffs produced at trial.
The Court of Appeal agreed, holding that the trial court abused its discretion. The court emphasized that the defense was entitled to rely on the representations of opposing counsel and the expert himself that the opinions disclosed at deposition were the only ones that needed to be met at trial. Because Dr. Zweber confirmed at his deposition that he had no additional opinions beyond those disclosed, and because those opinions did not include the cost of medical care, the trial court should not have allowed him to testify on that subject. The court found the error was prejudicial because Dr. Zweber’s testimony supplied the only evidence of the costs, the jury awarded the exact amounts he testified to, and the defense lacked a reasonable opportunity to test those opinions. The court reversed the $6.36 million economic damages award and remanded for a new trial limited to economic damages. The court rejected plaintiffs’ argument that a broader retrial of all damages was required, affirming the awards for noneconomic damages ($2.5 million) and loss of consortium ($25,000).
Montez v. Perez 
