Adkins v. Morton

• Decision Date: 19 June 1985
• Docket Number: No. 84-52.,84-52.
• Parties: Faith ADKINS, et al., Appellants, v. Christanna MORTON, et al., Appellees.
• Court: D.C. Court of Appeals

494 A.2d 652

Faith ADKINS, et al., Appellants, v. Christanna MORTON, et al., Appellees.

No. 84-52.

District of Columbia Court of Appeals.

Argued September 19, 1984.

Decided June 19, 1985.

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William J. Carter, Washington, D.C., with whom Lawrence E. Carr, Jr. and Joseph Montedonico, Washington, D.C., were on the briefs, for the appellants.

Barry J. Nace, Bethesda, Md., for appellees.

Before FERREN and BELSON, Associate Judges, and GALLAGHER, Associate Judge, Retired.

BELSON, Associate Judge:

This is an appeal by a physician and a hospital from a medical malpractice judgment. They challenge the trial court's rulings excluding certain testimony from two treating physicians whom appellants did not list during the discovery process as expert witnesses pursuant to Super.Ct. Civ.R. 26(b)(4). We hold that testimony comprising facts and opinions one physician acquired as an "actor or viewer" should have been admitted on the issue of damages. We further hold that opinion testimony from the other physician on the question of causation was cumulative of other evidence presented on that question and therefore was properly excludable. Accordingly, we affirm as to liability but reverse the award of damages and remand for a new trial on that issue.

I

Ms. Christanna Morton entered George Washington University Hospital (G.W.U. Hospital) in July 1975, to undergo elective open heart surgery for the repair of a congenital defect. Appellant's decedent, Paul C. Adkins, M.D., led the surgical team that performed the operation.¹ Thirteen hours after the operation, attending nurses noted that Ms. Morton was unable to move her arms and legs. A neurologist's examination revealed that she was exhibiting quadriplegia resulting from a blockage in the artery that normally supplied blood to her spinal cord. Doctors concluded upon subsequent examination that her paralysis and muscular weakness are permanent.

Appellees, Ms. Morton and her husband, Mr. Hugo C. Morton, instituted this action in Superior Court seeking damages for medical malpractice. Their complaint named as defendants Paul C. Adkins, M.D., George Washington University² and Alice Alstatt, M.D., who had been the anesthesiologist for the operation. At the trial in November 1981, the court granted a directed verdict on behalf of Dr. Alstatt. As to the other defendants, however, the jury was unable to reach a verdict and a mistrial was declared. A second trial was commenced in June 1983. The jury returned a verdict on behalf of the Mortons in the amount of $2,734,000. This appeal followed.³

The principal issue on appeal concerns the exclusion of certain testimony from two of Ms. Morton's attending physicians: Dr. Rodney L. Ellis and Dr. Thomas Street. Because appellants' claims as to the two doctors present discrete questions for our resolution, we address each in turn, beginning with the claim regarding the excluded testimony of Dr. Ellis.

II

Dr. Ellis is an internist who treated Ms. Morton following her release from G.W.U. Hospital. He testified as a defense witness at trial that he had not ordered, and that Ms. Morton had not received, full-time nursing care at home. The court refused, however, to allow Dr. Ellis to explain why he had not ordered such treatment up to and including the time of trial, nor to testify whether Ms. Morton would require home nursing care in the future. The court sustained the Mortons' objection to such testimony on the grounds that the appellants had failed to list Dr. Ellis as an expert witness and to summarize his testimony in response to a Super.Ct.Civ.R. 26(b)(4) interrogatory.

Appellants contend that the trial judge abused his discretion in excluding the testimony. They argue that Dr. Ellis was not an expert witness within the meaning of Rule 26(b)(4) and that they therefore were not required to list his name in their Rule 26(b) information. We agree.

Super.Ct.Civ.R. 26(b)(4) regulates discovery of facts known to and opinions held by an adversary's expert.⁴ By its terms, the rule applies only to facts and opinions "acquired or developed in anticipation of litigation or for trial." Super.Ct. Civ.R. 26(b)(4). The rule was adopted from the identically worded Fed.R.Civ.P. 26(b)(4),⁵ which the Advisory Committee for the federal rules significantly noted does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.

Fed.R.Civ.P. 26(b)(4) advisory committee note (1970). Courts and commentators now widely recognize the distinction between those experts whose knowledge and views lie within the ambit of Rule 26(b)(4) and those whose do not. E.g., Marine Petroleum Co. v. Champlin Petroleum Co., 206 U.S.App.D.C. 31, 641 F.2d 984 (D.C.Cir. 1979); Grinnell Corp. v. Hackett, 70 F.R.D. 326 (D.R.I. 1976); accord, In re Application for Water Rights v. Northern Colorado Water Conservancy Dist., 677 P.2d 320 (Colo. 1984) (en banc) (Colo.R. Civ.P. 26(b)(4)); see also Teen-Ed, Inc. v. Kimball International, Inc., 620 F.2d 399 (3d Cir. 1980) (holding that plaintiff's accountant, whom trial court had prohibited from testifying about damages in breach of contract action because plaintiff had not identified him as an expert witness in Fed. R.Civ.P. 26(b)(4) response, should have been allowed to testify pursuant to Fed.R. Evid. 701 as ordinary witness on basis of knowledge of plaintiff's records acquired in his capacity as plaintiff's accountant). See generally, 4 J. Moore, J. Lucas & G. Grotheer, MOORE'S FEDERAL PRACTICE ¶ 26.66[2] (2d ed. 1984); 8 C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 2033 at 257-58, & n. 90 (1970 & Supp. 1983); 33 Annot.A.L.R.Fed. 403, § 6 (1977). In making this distinction, the crucial inquiry is whether the facts and opinions possessed by the expert were obtained for the specific purpose of preparing for the litigation in question; if so, Rule 26(b)(4) governs their discovery. Grinnell, 70 F.R.D. at 332; see Marine Petroleum Co., 206 U.S.App.D.C. at 39 n. 47, 641 F.2d at 992 n. 47; Frantz v. Golebiewski, 407 So.2d 283, 285 (Fla.Dist. Ct.App. 1981).

Professionals and practitioners over a broad range of specialties whose knowledge and views were acquired as participants in or as witnesses to occurrences in dispute have been ruled not to be experts for purposes of discovery under Rule 26(b)(4). See, e.g., Leviathan, Inc. v. M/S Alaska Maru, 86 F.R.D. 8 (W.D.Wash. 1979) (ship's captain); Nelco Corp. v. Slater Electric Inc., 80 F.R.D. 411 (E.D.N.Y. 1978) (electrical inventor); In re Brown Co. Securities Litigation, 54 F.R.D. 384 (E.D. La. 1972) (financial investment experts); Duke Gardens Foundation, Inc. v. Universal Restoration, Inc., 52 F.R.D. 365 (S.D.N.Y. 1971) (greenhouse construction and maintenance technicians). The practice with respect to physicians has not been to the contrary. Insofar as a physician obtains and develops his information and opinions in the course of his treatment of a patient, he becomes an "actor or viewer" who should be treated as an ordinary witness rather than as an expert covered under Rule 26(b)(4). See Frantz, 407 So.2d 283 (Fla.R.Civ.P. 1.280 — which is identical in all material respects to Fed.R.Civ.P. 26(b)(4) — inapplicable to treating dentist); cf. Harasimowicz v. McAllister, 78 F.R.D. 319 (E.D.Pa. 1978) (Rule 26(b)(4) inapplicable to medical examiner who developed opinion by conducting autopsy pursuant to statutory mandate rather than in anticipation of litigation); Congrove v. St. Louis-San Francisco Railway Co., 77 F.R.D. 503 (W.D.Mo. 1978) (Rule 26(b)(4) inapplicable to defendant's medical consultant who rendered medical judgment in connection with suit in issue); Rodrigues v. Hrinda, 56 F.R.D. 11 (W.D.Pa. 1972) (Rule 26(b)(4) inapplicable to physician-defendants in medical malpractice action). The reason is not difficult to discern:

In contrast to an "examining physician" [whose facts and opinions are acquired and developed with an eye towards litigation], a treating doctor . . ., while unquestionably an expert, does not acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well.

Frantz, 407 So.2d at 285.

This court recently ruled for the first time that a treating physician is not an expert within the meaning of Super.Ct. Civ.R. 26(b)(4). In Abbey v. Jackson, 483 A.2d 330 (D.C. 1984),⁶ appellant underwent an abortion at a clinic and was later treated for complications at a hospital. Id. at 331. Appellant filed a complaint against the owners/operators of the clinic alleging negligence in two counts: 1) negligent nondisclosure of information pertinent to appellant's consent to the procedure, and 2) negligent infliction of emotional distress. Id. The pretrial statement of the appellees listed as potential witnesses the physician who performed the abortion and the physician who treated appellant at the hospital. Id. at 331-32. Appellant's pretrial statement listed as potential witnesses the parties and all witnesses identified by defendants. The trial court granted appellees' motion for summary judgment on the first count on the grounds that appellant, having not filed a Rule 26(b)(4) statement, would be unable to establish what risks the abortion procedure entailed, and thus could not establish a prima facie case on the theory of lack of informed consent. We reversed, ruling, in part, that appellant was not required to list the defense witnesses as experts on a Rule 26(b)(4) statement. Relying on the language of Rule 26(b)(4) and the corresponding advisory committee note, we reasoned that the physicians listed by the appellees as ordinary witnesses — i.e., the physician who performed the abortion and the one who treated her...