Durflinger v. Artiles

• Decision Date: 27 January 1984
• Docket Number: No. 81-1744,81-1744
• Citation: 727 F.2d 888
• Parties: 14 Fed. R. Evid. Serv. 1874 Irvin L. DURFLINGER, Raymond Durflinger, and Ronald Durflinger, Plaintiffs- Appellees, v. Benjamin ARTILES, Preciosa Rosales, and Eduardo Medrano, Defendants-Appellants, Kansas Psychiatric Association, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 888

727 F.2d 888

14 Fed. R. Evid. Serv. 1874

Irvin L. DURFLINGER, Raymond Durflinger, and Ronald Durflinger, Plaintiffs- Appellees, v. Benjamin ARTILES, Preciosa Rosales, and Eduardo Medrano Defendants-Appellants Kansas Psychiatric Association, Amicus Curiae.

No. 81-1744.

United States Court of Appeals Tenth Circuit.

Jan. 27, 1984.

Deborah Carney, Turner & Boisseau, Wichita, Kan. (Christopher Randall, Turner & Boisseau, Wichita, Kan., on briefs), for plaintiffs-appellees.

Reid Stacey, Asst. Atty. Gen. of Kan., Topeka, Kan. (Robert T. Stephan, Atty. Gen. of Kan., Topeka, Kan., on briefs), for defendants-appellants.

John E. Wilkinson, Topeka, Kan., filed an amicus curiae brief on behalf of The Kan. Psychiatric Ass'n.

Before DOYLE, LOGAN and SEYMOUR, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is a wrongful death action against several doctors employed by Larned State Hospital in Larned Kansas. The defendants in this action are Drs. Artiles, Rosales, and Medrano.

A detailed recitation of the facts can be found in the Kansas Supreme Court's opinion. See Appendix, infra. We provide a Inasmuch as the instant action presented issues arising out of Kansas law, we submitted an interrogatory to the Supreme Court of Kansas and now have received an opinion answering the questions that were certified to the Kansas Court. That Court held as follows:

skeletal version of the facts below. On January 7, 1974, after contemplating murdering his grandparents, Bradley Durflinger was found mentally ill by a probate judge and ordered to enter Larned State Hospital. On April 19, 1974, the defendants found that Bradley was not dangerous to himself or others and recommended his release from the hospital. On April 25, 1974, Bradley shot and killed his mother and brother.

1. A claim arising out of a negligent release of a patient who has violent propensities poses a valid cause of action. Physicians have a duty to use reasonable and ordinary care and discretion in making a recommendation to release such a patient. This duty is owed to the patient and the public.

2. At least as to causes of action, such as this one, arising before enactment of the 1979 Kansas Tort Claims Act, staff doctors of a state mental institution are not immune from civil liability resulting from release or failure to warn of the release of a dangerous patient.

We accept these determinations by the Kansas Supreme Court. The full opinion by that court, 234 Kan. 484, 673 P.2d 86, is incorporated herein as an appendix to this opinion.

Several issues remain to be decided by this court.

I. DEFENDANT'S CHALLENGES TO EVIDENTIARY RULINGS:

The defendants raise several challenges to the trial judge's decisions to admit and exclude the testimony of certain proffered witnesses. After considering the various arguments, we conclude that the trial judge acted properly in rendering his decisions. Decisions on relevance of testimony and competence of witnesses are within the broad discretion of the trial judge and will only be reversed on a showing of abuse of discretion. Mason v. United States, 719 F.2d 1485, 1490 (10th Cir.1983); Scholz Homes, Inc. v. Wallace, 590 F.2d 860 (10th Cir.1979). At no time did the trial court abuse its discretion.

A. Testimony of Dr. O'Connor:

Defendants challenge the competence of plaintiffs' expert witness on the ground that he was licensed and trained in a different discipline than the defendants. The expert, Dr. William O'Connor, has several advanced degrees in clinical psychology and extensive experience in institutional procedure and mental patient evaluation. Defendants argue that notwithstanding his experience and training, Dr. O'Connor is not a medical doctor and is thus incompetent to testify on the standard of care expected of the defendant medical doctors on the team that made the challenged discharge decision. They cite Kansas law holding that a medical malpractice defendant must be evaluated according to the standards of his or her particular discipline. Webb v. Lungstrum, 223 Kan. 487, 575 P.2d 22 (1978); Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 (1974).

The trial judge considered and rejected defendants' contention. He conceded that he would "doubt that you could have a foot doctor testify as to the qualifications of a cardiologist," but held that this case involves psychological evaluation and technique common to psychiatrists and clinical psychologists.

We are in agreement with the trial court on this. This is not a case in which medical training or competence is at issue. The defendant physicians were members of a team engaged in psychological inquiry. Indeed, one of the original defendants, who settled before trial, was a clinical psychologist. All the team members agreed to discharge Bradley Durflinger, and all considered the same historical and diagnostic information. The decision involved psychological rather than medical inquiry, and a clinical psychologist such as Dr. O'Connor

has competence to testify on the proper standards applicable to such a decision. The trial judge did not abuse his discretion in admitting Dr. O'Connor's testimony.

B. Testimony of Dr. Dyck:

The defendants also challenge the trial judge's exclusion of one of their proffered experts, a psychiatrist named Dr. Dyck. The trial judge was justified in excluding Dr. Dyck's testimony. In retaining and presenting Dr. Dyck, the defendants violated the discovery provisions of the Federal Rules of Civil Procedure. The trial court was within its discretion in excluding the testimony of the witness on these grounds.

Plaintiffs had originally retained Dr. Dyck as a consultant, and designated him as a probable witness in presenting their case. Subsequently, they decided not to use him as a witness, and so informed defendants. Plaintiffs did not give defendants any information about the substance of Dr. Dyck's evaluation because they had decided not to call him to the witness stand. Upon learning of plaintiffs' decision not to call Dr. Dyck, defendants contacted Dr. Dyck and requested a copy of the report he prepared for the plaintiffs. He sent them a copy of the evaluation and the defendants sought at trial to call him as their witness.

In proceeding in this rather unorthodox fashion, defendants violated Rule 26 of the Federal Rules of Civil Procedure. Rule 26(b)(4)(B) provides that:

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only .... upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

The rule is designed to promote fairness by precluding unreasonable access to an opposing party's diligent trial preparation. See Advisory Committee Notes, Fed.R.Civ.P. 26(b)(4)(B); Ager v. Jane C. Stormont Hosp. & Training School for Nurses, 622 F.2d 496, 502 (10th Cir.1980). Under the standards articulated in Ager, supra at 501, Dr. Dyck was certainly an "expert who has been retained or specially employed by another party in anticipation of litigation." He prepared a report for plaintiffs after the case was filed. This was based on information furnished to him by plaintiffs. He was paid by plaintiffs for his services. In obtaining his report and assistance, defendants failed to make the necessary showing of special need to the court. Had they made a showing, there is small possibility that they could have prevailed; they had an expert testify on the same psychological principles and procedures, and could probably have obtained others with little difficulty.

In proceeding as they did, defendants circumvented the discovery process and subverted the principle of fairness that underlies Rule 26(b)(4)(B). Defendants' disregard of the Rule, coupled with the prejudice Dr. Dyck's specially informed opinion might work on plaintiffs' case, justified the trial court's exclusion of the proffered evidence. The exclusion worked no hardship on defendants because they presented another expert on the same subject. So, our holding is that the trial judge acted within his discretion. In different circumstances we recognize that a trial judge might not be required to exclude the testimony of a witness consulted in violation of the rules of discovery.

C. Testimony of Bradley Durflinger and Reverend Holgate:

Defendants argue that the trial judge erred in excluding the testimony of Bradley Durflinger and Reverend Holgate. Specifically, they argue that those two witnesses would have testified to the volatile family situation and abusive history that Bradley endured while growing up. Defendants argue that this testimony is relevant to their defense of plaintiffs' contributory negligence in the deaths of Margaret and Corwin Durflinger.

The trial judge ruled that the defendants' theory of contributory negligence was invalid, and excluded the testimony as irrelevant. We agree. The plaintiffs in this case allege negligence in discharging a foreseeably violent mental patient. Defendants might be permitted to argue contributory negligence if the plaintiffs had contributed to the decision to discharge Bradley or if they had provoked Bradley to act violently. At the trial, however, defendants did not proceed on either of these grounds. Defendants sought to prove that plaintiffs' past abuse or neglect led or contributed to the deaths. This does not establish contributory negligence. Contributory negligence is not established unless there exists proof of past mistreatment of Bradley which proximately caused or contributed to his violence.

Negligence is the proximate cause of an injury when it appears that "the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the...