Anderson v. Florence, 41823

• Decision Date: 23 October 1970
• Docket Number: No. 41823,41823
• Parties: Arvid Richard ANDERSON, Respondent, v. David W. FLORENCE, Appellant.
• Court: Minnesota Supreme Court

Page 873

181 N.W.2d 873

288 Minn. 351

Arvid Richard ANDERSON, Respondent, v. David W. FLORENCE, Appellant.

No. 41823.

Supreme Court of Minnesota.

Oct. 23, 1970.

Rehearing Denied Dec. 18, 1970.

Syllabus by the Court

In medical malpractice actions, Rules 26.02 and 43.02, Rules of Civil Procedure, governing the scope of pretrial discovery and cross-examination of an adverse party, authorize the trial court to compel a defendant physician, when qualified as an expert, to answer pretrial interrogatories calling for his expert medical opinion.

Richards, Montgomery, Cobb & Bassford, Minneapolis, for appellant.

Robins, Davis & Lyons, Harding A. Orren, James A. Karigan, Burton G. Weisberg, Minneapolis, for respondent.

OPINION

ROGOSHESKE, Justice.

This appeal from a pretrial order pursuant to leave granted by this court concerns one of the most difficult problems encountered in the application of our Rules of Civil Procedure governing pretrial discovery to professional malpractice actions. ¹ Although the scope of the problem is much broader, the narrow question presented by this appeal is whether Rules 26.02 ² and 43.02 ³ governing the scope of pretrial discovery and the cross-examination of an adverse party, authorize the trial court to compel defendant physician, when qualified as an expert witness, to answer questions calling for his expert medical opinion. We hold that they do and affirm the order of the trial court compelling defendant to answer the interrogatories propounded by plaintiff.

The facts and procedural background of the case have been agreed upon by the parties. Defendant is a duly qualified and licensed physician and surgeon specializing in orthopedic surgery. On December 31, 1965, plaintiff was attempting to replace fallen Christmas lights along the eaves of his home when he fell from the roof and was injured. About 25 minutes later he was admitted to North Memorial Hospital in Robbinsdale for emergency treatment of what was found to be a compound, comminuted fracture of both bones of his lower left leg above the ankle. Defendant performed surgery in an effort to reduce the fractures and otherwise attended plaintiff professionally at North Memorial Hospital until January 4, 1966. On that morning, at his own request, plaintiff was transferred by ambulance to the Veterans Administration Hospital in Minneapolis, where, shortly after his arrival, his left leg was amputated below the knee. Plaintiff brought this action alleging that the loss of his leg was a result of defendant's negligent care and treatment, which defendant specifically denies.

During discovery proceedings, plaintiff submitted five interrogatories designed to elicit defendant's expert medical opinion:

'1. Assuming a compound fracture of the left distal tibia of the sort you found upon examination of plaintiff Arvid Richard Anderson on December 31, 1965, and assuming the surgical procedure you performed on him, describe the usual and customary procedures followed by surgeons in the Minneapolis area in connection with antibiotic therapy and infection control in relation to the surgery and during the first four post operative days.

'2. State whether or not you followed the afore described procedures and, if not, state the respects in which you varied from the said procedures.

'3. On the basis of the facts assumed in Interrogatory No. 1 above, what is the medical significance of a noxious odor emanating from the cast approximately three or four days post operatively?

'4. Describe the usual and customary procedures followed by orthopedic surgeons in the Minneapolis area in the situation referred to above when a noxious odor is detected emanating from the cast three or four days post operatively?

'5. State whether or not the answers to the foregoing questions would be different if it were known that the patient had a circulatory problem in the leg involved.'

This form of pretrial discovery rather than that of oral deposition was chosen by prearrangement of counsel to accommodate defendant physician and to accomplish plaintiff's announced purpose of laying a foundation for obtaining a reconsideration of our rule, enunciated in Ericksen v. Wilson, 266 Minn. 401, 123 N.W.2d 687, and Hoffman v. Naslund, 274 Minn. 521, 144 N.W.2d 580, which prohibits cross-examining a defendant physician in a medical malpractice case by questions designed to elicit his expert medical opinion. Upon defense counsel's objections and instruction to defendant not to answer any of the questions, plaintiff submitted a motion to compel answers. The trial court, acknowledging that he was ruling contrary to the Ericksen and hoffman decisions, filed an order requiring defendant to answer the interrogatories. His decision incorporated a comprehensive memorandum in which he concludes that this court, upon reconsideration, is likely to change the rule of Ericksen and Hoffman, essentially because the decisions relied upon in Ericksen have since been overruled in an almost unanimous shift of authority.

In Hoffman we reaffirmed the holding of Ericksen that--

'* * * in medical malpractice actions a plaintiff will not be permitted under the guise of cross-examination under the rules to go so far as to compel expert testimony from the defendant to prove a charge of malpractice without properly calling other medical witnesses.' 274 Minn. 525, 144 N.W.2d 585.

Our decisions did not undertake to express th arguments or reasons supporting the rule but simply relied upon other jurisdictions which had previously reached the same conclusion. Osborn v. Carey, 24 Idaho 158, 132 P. 967; Hunder v. Rindlaub, 61 N.D. 389, 237 N.W. 915; Forthofer v. Arnold, 60 Ohio App. 436, 21 N.E.2d 869; Wiley v. Wharton, 68 Ohio App. 345, 41 N.E.2d 255; Hull v. Plume, 131 N.J.L. 511, 37 A.2d 53;McDermott v. Manhattan Eye, Ear and Throat Hospital, 16 A.D.2d 374, 228 N.Y.S.2d 143. As the trial court notes in his memorandum, at this time every one of these jurisdictions, except possibly New Jersey, has ruled contrary to their prior holdings.

The cases of Erickson and Hoffman concerned examination of defendant At trial under the adverse-witness rule. Here, the question presented concerns Discovery before trial, involving both the adverse-witness rule and the rule governing the scope of discovery. To some extent, the policy considerations in each situation differ, and this case might therefore be distinguished from the earlier cases. However, as plaintiff concedes, adherence to the holding in Erickson would necessarily require reversal of the trial court's order. This is so because of the interaction of our rules. Rule 26.03, dealing with discovery, provides that '(e)xamination and cross-examination of witnesses may proceed As permitted at the trial under the provisions of Rule 43.02,' authorizing cross-examination of an adverse party at trial. (Italics supplied.) Thus, what is beyond the scope of trial examination under the adverse-witness rule is also beyond the scope of comparable examination during discovery. Consequently, while this case could arguably be distinguished from Ericksen and Hoffman, our holding in effect overrules those decisions.

The trial court exhaustively and accurately noted that since Ericksen, other jurisdictions have reversed or ruled contrary to the cases cited as support in Ericksen. Most of the newer cases concern the same issue decided in Ericksen, i.e., the permissible scope of adverse examination at trial. Lawless v. Calaway, 24 Cal.2d 81, 147 P.2d 604; State, for Use of Miles v. Brainin, 224 Md. 156, 167 A.2d 117; Iverson v. Lancaster (N.D.) 158 N.W.2d 507; McDermott v. Manhattan Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65, 203 N.E.2d 469; Oleksiw v. Weidener, 2 Ohio St.2d 147, 207 N.E.2d 375; Shurpit v. Brah, 30 Wis.2d 388, 141 N.W.2d 266; Giacobazzi v. Fetzer, 6 Mich.App. 308, 149 N.W.2d 222; Walker v. Distler, 78 Idaho 38, 296 P.2d 452; Frazier v. Hurd, 6 Mich.App. 317, 149 N.W.2d 226. A few courts have been faced with the question confronting us, i.e., the permissible scope of adverse examination during discovery. Rogotzki v. Schept, 91 N.J.Super. 135, 219 A.2d 426; Decker v. Pohlidal, 22 Pa.D. & C.2d 631; Kennelly v. St. Mary's Hospital, 52 Misc.2d 352, 275 N.Y.S.2d 597.

Most of these decisions were based solely on the interpretation and application of adverse-witness rule or statute, with only occasional mention of discovery rules. Since our problem is one of discovery, it is necessarily analyzed in light of the basic philosophy underlying modern discovery rules that 'a lawsuit should be an intensive search for the truth, not a game to be determined in outcome by considerations of tactics and surprise.' ⁴ Because of the widespread acceptance of the soundness of this policy as well as the proven efficiency of the various discovery techniques embodied in the rules to achieve this objective, it has long been commonplace for the parties, through counsel, to open their files and freely exchange information about the case and to diligently cooperate in the pretrial ascertainment of not only the facts but also other information concerning any matter not privileged which may have a bearing on the actual or potential issues to be litigated.

It is thus understandable that our rules governing the scope of discovery do not prohibit eliciting expert opinion testimony from an adverse party. It is true, as defendant asserts, that Rule 26.02 excepts from discovery 'production or inspection * * * of any writing that reflects an attorney's mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 35 The conclusions of an expert.' (Italics supplied.) However, the pertinent part of this limitation applies only to conclusions of an expert and only to such conclusions when they are In writing. Leininger v. Swadner, 279 Minn. 251, 156 N.W.2d 254. Discovery of an adverse party's expert conclusions not in writing surely was...