Ager v. Jane C. Stormont Hospital and Training School for Nurses, 79-2228

• Citation: 622 F.2d 496
• Decision Date: 02 June 1980
• Docket Number: No. 79-2228,79-2228
• Parties: Emily AGER, an incompetent, by Law Lamar Ager, her father and duly appointed guardian, Plaintiff-Appellant, v. JANE C. STORMONT HOSPITAL AND TRAINING SCHOOL FOR NURSES, a/k/a Stormont-Vail Hospital, and Dan L. Tappen, M. D., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 496

622 F.2d 496

Emily AGER, an incompetent, by Law Lamar Ager, her father and duly appointed guardian, Plaintiff-Appellant, v. JANE C. STORMONT HOSPITAL AND TRAINING SCHOOL FOR NURSES, a/k/a Stormont-Vail Hospital, and Dan L. Tappen, M. D., Defendants-Appellees.

No. 79-2228.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted March 14, 1980.

Decided June 2, 1980.

John E. Shamberg, Kansas City, Kan. (Mark A. Johnson, Kansas City, Kan., with him on the brief), of Schnider, Shamberg & May, Chartered, Kansas City, Kan., for plaintiff-appellant.

John R. Martin, Topeka, Kan. (Eugene B. Ralston, Topeka, Kan., with him on the brief), of Ralston & Frieden, Topeka, Kan., for defendant-appellee Dan L. Tappen, M.D.

Jane C. Stormont Hospital and Training School for Nurses, a/k/a Stormont-Vail Hospital, defendant-appellee, did not file a brief.

Before SETH, Chief Judge, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Lynn R. Johnson, counsel for plaintiff Emily Ager, appeals from an order of the District Court adjudging him guilty of civil contempt. Jurisdiction vests by reason of 28 U.S.C.A. § 1826(b).

Emily was born April 4, 1955, at Stormont-Vail Hospital in Topeka, Kansas. During the second stage of labor, Emily's mother suffered a massive rupture of the uterine wall. The ensuing loss of blood led to Mrs. Ager's death. Premature separation of the placenta from the uterine wall also occurred, resulting in fetal asphyxia. Following Emily's delivery, it was discovered that she evidenced signs of severe neurological dysfunction. Today, she is mentally impaired and a permanently disabled quadraplegic with essentially no control over her body functions.

In March, 1977, Emily's father filed, on her behalf, a complaint for the damages sustained at her birth. The complaint alleges, in essence, that "the hemorrhaging and resultant death of her mother and the brain damage and other injuries which she sustained . . . while still in her mother's womb and/or during her delivery, were directly and proximately caused by the negligence and carelessness of the defendants (Stormont-Vail Hospital and Dr. Dan L. Tappen, the attending physician) which joined and concurred in causing plaintiff's mother's death and plaintiff's bodily injuries and damages and resultant disability." (R., Vol. I, p. 4). After joining the issues, Dr. Tappen propounded a series of interrogatories to the plaintiff. The specific interrogatories at issue here are:

1. Have you contacted any person or persons, whether they are going to testify or not, in regard to the care and treatment rendered by Dr. Dan Tappen involved herein?

2. If the answer to the question immediately above is in the affirmative, please set forth the name of said person or persons and their present residential and/or business address.

3. If the answer to question # 1 is in the affirmative, do you have any statements or written reports from said person or persons?

(R., Vol. I, p. 1).

In response, plaintiff filed written objections, accompanied by a lengthy brief. Dr. Tappen answered the plaintiff's objections. The answer brief was treated by the United States Magistrate as a motion for an order compelling discovery pursuant to Fed.Rules Civ.Proc., rule 37(a), 28 U.S.C.A. Following his review, the Magistrate ordered the plaintiff to answer the interrogatories:

Interrogatories No. 1, 2 and 3 should be answered with the single exception, if the plaintiff has contacted an expert who was informally consulted in preparation for trial, but who was never retained or specifically employed and will not be called as a witness, it will not be necessary for the plaintiff to supply the name and address of such person or persons or to set forth any statement or report which such person or persons may have made.

(R., Vol. I, p. 15).

Plaintiff's counsel answered the interrogatories in part, but failed to provide any information concerning consultative experts not expected to testify at trial. Plaintiff apparently based the refusal to answer on her contention that an expert who advises a party that his opinion will not aid the party in the trial of the case falls within the definition of experts informally consulted but not retained or specially employed. At defendant's suggestion, the Magistrate ordered plaintiff to provide further answers to the interrogatories, specifically defining the terms retained or specially employed:

In the generally accepted meaning of the term in everyday usage, "retained" or "specially employed" ordinarily implies some consideration, a payment or reward of some kind, as consideration for being "retained" or "specially employed." It follows, therefore, that if a medical expert is consulted for the purpose of rendering advice or opinion on a hospital chart, or a physician's medical records pertaining to a case, and is paid or makes a charge for such service, he has been "retained" or "specially employed" within the meaning of the Rule. If (such an) expert is not to be called as a witness, he would be subject to the provisions of Rule 26(b)(4)(B) and, as shown by Baki, supra, (Baki v. B. F. Diamond Construction Co., 71 F.R.D. 179 (D.Md.1976)) there would be routine access to the names and addresses of such experts; but if they are not to be called as witnesses, facts known or opinions held by such experts would be subject to the requirements of Rule 26(b)(4)(B). However, if the consultation with the medical expert was strictly on an informal basis and such expert was not "retained" or "specially employed," the identity of such expert need not be disclosed.

(R., Vol. I, pp. 24-25).

Rather than complying with the Magistrate's order, Ager sought review by the District Court pursuant to 28 U.S.C.A. § 636(b)(1)(A). The District Court denied plaintiff's motion for review as untimely. On reconsideration, the Court affirmed the Magistrate's order:

In the context of this malpractice case the question is whether plaintiff must identify each and every doctor, physician or medical expert plaintiff's counsel retained or specially employed during pretrial investigation and preparation. The courts have been divided on the issue. Compare Weiner v. Bache Halsey Stuart, Inc., 76 F.R.D. 624 (S.D.Fla.1977), Baki v. B. F. Diamond Const. Co., 71 F.R.D. 179 (D.Md.1976), Sea Colony, Inc. v. Continental Ins. Co., 63 F.R.D. 113 (D.Del.1974) and Nemetz v. Aye, 63 F.R.D. 66 (W.D.Penn.1974) with Guilloz v. Falmouth Hospital Ass'n, Inc., 21 F.R.Serv.2d 1367 (D.Mass.1976) and Perry v. W. S. Darley & Co., 54 F.R.D. 278 (E.D.Wis.1971). The Magistrate relied upon Baki and Nemetz, supra, and held the identities of persons retained or specially employed for an opinion(i. e. to whom some consideration had been paid) to be discoverable. We have again read the Magistrate's Order and the suggestions of counsel. We find plaintiff's argument based upon the Advisory Committee Notes to be unpersuasive. After reviewing the cases and the suggestions of counsel we cannot find the Magistrate's Order to be "contrary to law." (Supp.R., Vol. I, pp. 4-5). (Parenthetical remark in original text).

Plaintiff's counsel filed a formal response to the Court's order and refused to comply. The Court thereafter entered a civil contempt order against Johnson. ¹ Johnson was committed to the custody of the United States Marshal until his compliance with the Court's order. Execution of the custody order was stayed pending appeal, after Johnson posted a recognizance bond. The Court specifically found that the appeal was not frivolous or taken for purposes of delay.

The issues on appeal are whether: (1) the District Court erred in adjudging Johnson guilty of civil contempt; and (2) a party may routinely discover the names of retained or specially employed consultative non-witness experts, pursuant to Fed.Rules Civ.Proc., rule 26(b)(4)(B), 28 U.S.C.A., absent a showing of exceptional circumstances justifying disclosure.

The Contempt Power

When a recalcitrant witness fails to obey the duly issued orders of a court, he may be cited for contempt, either criminal, civil or both. Whether the adjudication of contempt "survives the avoidance of (the) underlying order depends on the nature of the contempt decree. If the contempt is criminal it stands; if it is civil it falls." Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1342 (3d Cir. 1976). (Footnote omitted). See also: United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Burkett v. Chandler, 505 F.2d 217 (10th Cir. 1974), cert. denied, 423 U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d 110 (1975); Hyde Construction Co. v. Koehing Co., 348 F.2d 643 (10th Cir. 1965), rev'd on other grounds, 382 U.S. 362, 86 S.Ct. 522, 15 L.Ed.2d 416 (1966).

The primary purpose of a criminal contempt is to punish defiance of a court's judicial authority. Accordingly, the normal beneficiaries of such an order are the courts and the public interest. Norman Bridge Drug Co. v. Banner, 529 F.2d 822 (5th Cir. 1976). On the other hand, civil contempt is characterized by the court's desire "to compel obedience of the court order or to compensate the litigant for injuries sustained from the disobedience." Id. at p. 827. The remedial aspects outweigh the punitive considerations. Thus, the primary beneficiaries of such an order are the individual litigants. The judicial system benefits to a lesser extent. United States v. Wendy, 575 F.2d 1025 (2d Cir. 1978).

Our review of the order, and the proceedings held in connection therewith, convinces us that the citation was framed in the nature of a coercive civil contempt. We recognize that coercive, as opposed to compensatory, civil contempt approaches the criminal arena. Thus, it can be argued that the contempt judgment should survive the invalidity of an underlying order. It is our view, however, that the "civil nature of the contempt is not turned criminal by the court's efforts at vindicating its...