Boynton v. RJ Reynolds Tobacco Co.

• Decision Date: 21 January 1941
• Docket Number: No. 672.,672.
• Citation: 36 F. Supp. 593
• Parties: BOYNTON v. R. J. REYNOLDS TOBACCO CO.
• Court: U.S. District Court — District of Massachusetts

36 F. Supp. 593

BOYNTON v. R. J. REYNOLDS TOBACCO CO.

No. 672.

District Court, D. Massachusetts.

January 21, 1941.

Gordon D. Boynton, of Boston, Mass., pro se.

Harry B. White, of Boston, Mass., for defendant.

McLELLAN, District Judge.

This motion involves the power of the court to direct an expert to express a relevant opinion already formed and the propriety of the exercise of such power under the circumstances hereafter stated.

This is an action under the Massachusetts statute to recover damages for the death of the plaintiff's intestate in consequence of a motor vehicle accident. Before the instant motion was filed, the defendant had given notice under Federal Rules of Civil Procedure, Rule 30, 28 U.S.C.A. following section 723c, that a deposition would be taken of Dr. Louis Feldman, a physician who had been employed by the plaintiff as an expert. On October 21, 1940, I denied the plaintiff's motion that the deposition be not taken, and added that "its denial is not to be understood as a precedent upon the question whether an expert witness of one of the parties should be compelled to express his professional opinion in connection with a deposition taken by the other party." D. C., 1 F.R.D. 452.

Later an arrangement was made for taking Dr. Feldman's deposition, in the course of which the plaintiff, an attorney at law, advised the physician that he need not answer any questions calling for an expert opinion unless paid therefor. The doctor accordingly refused to answer such questions.

The defendant moves: (1) That this court should order the said Louis Feldman to answer to the deposition, giving his opinion as required, without the defendant being forced to pay him any fee as an expert. (2) That the plaintiff be ordered to desist from advising the said Dr. Feldman not to answer the deposition or in any way interfering with the said Dr. Feldman's answering to the said deposition.

The motion came on for hearing yesterday afternoon, when it appeared that Dr. Feldman had not treated the plaintiff's intestate, but that his opinion had been sought by and furnished to the plaintiff as to the causal connection between the alleged accident and death. The court's power to compel a witness to express his professional opinion without compensation therefor has received a considerable amount of judicial discussion. On the one hand, it is stated: "There is a distinction between the case of a man who sees a fact and is called upon to prove it in a court of justice, and that of a man who is selected by a party to give his opinion on a matter with which he is peculiarly conversant from the nature of his employment in life. The former is bound as a matter of public duty to speak to a fact which happens to have fallen within his knowledge; without such testimony the course of justice must be stopped. The latter is under no such obligation." Maule, J. in Webb v. Page, 1 C. & K. 23. Criticizing this statement by Maule, J., and a similar statement in Buchman v. State, 59 Ind. 1, 13, 26 Am.Rep. 75, as "specious only", Mr. Wigmore cites cases indicating that the expert should be or may be compelled to express his opinion without being tendered an expert fee. See Wigmore on Evidence, 2d Ed., Vol. 4, Sec. 2203. Although there are authorities which seem to indicate that the court has no power to compel an expert witness to express an opinion already formed, it seems to me the better rule, and the one sustained by the weight of authority, that while the court has no power to compel the witness to educate himself, the court does have the power to compel him to state an opinion already formed.

In view of Rule 43 of the Federal Rules of Civil Procedure, providing that "All evidence shall be admitted which is admissible * * * under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States Court is held," reference is now made to the Massachusetts authorities upon the question presented by this motion. In Barrus v. Phaneuf, 166 Mass. 123, 44 N.E. 141, 32 L.R.A. 619, supporting a promise by the defendant to pay the plaintiff an expert fee as based upon a sufficient consideration, though the plaintiff was served with a summons and paid the statutory fees, the court took occasion to say: "In this commonwealth, every justice of the peace may issue summonses for witnesses in civil cases. St.1885, c. 141. This is usually done by the party's attorney, if he is a justice of the peace, or by a justice upon the mere request of a party or of his attorney, without any consideration of the materiality of the evidence or of other circumstances. No doubt here, as in England, the court...