Fenlon v. Thayer
| Decision Date | 27 February 1986 |
| Docket Number | No. 84-579,84-579 |
| Citation | 506 A.2d 319,127 N.H. 702,66 A.L.R.4th 203 |
| Parties | , 66 A.L.R.4th 203 Sandra FENLON et al. v. Charles L. THAYER, M.D. Sandra FENLON et al. v. Paul DRISCOLL, M.D., and Portsmouth Hospital. |
| Court | New Hampshire Supreme Court |
McLane, Graf, Raulerson & Middleton P.A., Manchester (Bruce W. Felmly, on brief and orally, and Carol Ann Conboy on briefs), for plaintiffs.
Sulloway Hollis & Soden, Concord (Arthur W. Mudge on brief and orally), for Charles L. Thayer.
McDonough & O'Shaughnessy P.A., Manchester (Augustine J. McDonough, on brief, and William P. Tocchi on brief and orally), for Paul Driscoll.
Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Theodore Wadleigh on brief and orally), for Portsmouth Hosp.
The plaintiffs appeal the decision of the Superior Court (Dunn, J.) favoring the three defendants in these medical malpractice actions consolidated below. The issues raised on appeal are whether the trial court erred (1) in preventing the plaintiffs from introducing at trial the testimony of an expert originally consulted by one of the defendants, (2) in excluding evidence relating to the record-keeping practices of one of the defendants, or (3) in failing to set aside the verdicts and to grant judgments notwithstanding the verdicts. For the reasons that follow, we reverse and remand the case to the superior court for a new trial.
The pertinent facts of this case follow. From November 20 to December 24, 1980, Sandra Fenlon was treated by Drs. Charles Coyne, Charles L. Thayer, and Paul Driscoll at Portsmouth Hospital for a ruptured appendix and complications resulting from removal of her appendix. During the course of several visits to the hospital, Mrs. Fenlon underwent surgery five times. When her condition further deteriorated, she was transferred to Massachusetts General Hospital for emergency surgery. She received ongoing treatment related to these complications, including an operation on March 23, 1981.
As a result of these events, Sandra and William Fenlon sued Drs. Thayer and Driscoll and Portsmouth Hospital in negligence to recover for medical expenses, lost wages, and damages for physical and emotional disability and scarring. During the course of pre-trial discovery the plaintiffs obtained a copy of a letter from Dr. William D. Moyle, Jr., of Keene, to attorney Robert M. Larsen, of Concord, whose firm represents Dr. Thayer. Attorney Larsen had consulted Dr. Moyle to get a preliminary opinion on the medical malpractice issues, and as a potential expert witness. Dr. Moyle's letter rendered opinions on three aspects of Mrs. Fenlon's medical treatment: the antibiotics, the transrectal drainage, and the small bowel fistula. Since the plaintiffs determined that the opinions expressed by Dr. Moyle were favorable to their case, they listed him as a witness and advised the defendants that Dr. Moyle would be subpoenaed to testify at the trial. Dr. Thayer's counsel, meanwhile, had decided not to call Dr. Moyle as an expert witness.
In September 1984, Dr. Thayer filed a motion in limine seeking an order preventing plaintiffs' counsel from eliciting testimony from Dr. Moyle pertaining to the fact that he was initially retained by defense counsel. The court granted the motion, ruling that although such testimony was relevant, it would be excluded on the ground of undue prejudice.
Dr. Moyle received a subpoena requiring him to appear at the trial on October 5, 1984. The plaintiff's moved to compel Dr. Moyle to testify, and the court conducted a voir dire examination of the surgeon. The court found that (1) Dr. Moyle did not want to testify, (2) he had not been an attending physician to Mrs. Fenlon, (3) he had received a subpoena, (4) he had not prepared to testify by reading treatises or reviewing files, and (5) he had based his opinions on a review of Mrs. Fenlon's medical records. The court denied the plaintiffs' motion to compel Dr. Moyle to testify and excused him.
At trial, medical experts offered conflicting views on the care provided to Mrs. Fenlon, and the credibility of the experts was attacked. Dr. Charles Lipson, the plaintiffs' expert, was maligned as a "former surgeon now turned businessman." Moreover, the plaintiffs were chided for failing to provide a New Hampshire surgeon as an expert, and defense counsel intimated that local surgeons were more worthy of belief.
After deliberations, the jury returned verdicts for the defendants. Thereafter, the plaintiffs filed a motion for judgments notwithstanding the verdicts and, in the alternative, a motion to set aside the verdicts and for a new trial. These motions were denied, and the plaintiffs appealed.
The first question before us is whether the trial court incorrectly prevented the plaintiffs from compelling an expert, initially consulted by one of the defendants and appearing pursuant to a subpoena, to appear as a witness. The plaintiffs argue that the trial court order preventing Dr. Moyle from testifying denied them "their constitutional rights to a fair jury trial." The defendants contend that the trial court properly exercised its discretion in deciding not to compel the witness to testify.
We begin our analysis by affirming the principle that a trial is essentially a search for the truth. N.H.R.Ev. 102. See Brown v. Cathay Island, Inc., 125 N.H. 112, 115, 480 A.2d 43, 44 (1984). One of the ways this principle is manifested in the judicial system is the right to subpoena witnesses. See RSA 516:5. This principle is not unlimited, however. The trial court has broad discretion in ruling on the admissibility of evidence. See N.H.R.Ev. 104(a); Dowling v. Shattuck, 91 N.H. 234, 236, 17 A.2d 529, 532 (1941). Moreover, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of prejudice, confusion, needless presentation of cumulative evidence, or misleading the jury. See N.H.R.Ev. 403.
New Hampshire law provides only limited assistance in addressing the propriety of the trial court's exclusion of Dr. Moyle. New Hampshire Superior Court Rule 35.b. (3)(b), modeled after Federal Rule of Civil Procedure 26(b)(4)(B), states that only in exceptional circumstances may a party "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." Since this rule refers to discovery and not to testimony at trial, it is not controlling. See Granger v. Wisner, 134 Ariz. 377, 381, 656 P.2d 1238, 1241-42 (1982).
The New Hampshire Rules of Evidence provide some guidance in reviewing the trial court's exclusion of the expert's testimony. Rule 103(b) concerns the effect of an erroneous ruling. It states: "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." N.H.R.Ev. 103(b).
We think the plaintiffs' substantial rights were affected by the exclusion of Dr. Moyle's testimony. At the pre-trial hearing on July 11, 1984, Judge Wyman considered the plaintiffs' motion to compel production of Dr. Moyle's letter. The court ruled that the letter was discoverable and stated, in response to a query whether a subpoena to produce the expert at trial would be permitted, that the plaintiffs could "compel [Dr. Moyle], subject to contempt, to answer [whether he rendered] an opinion, [and] if so, what [the opinion] was." Although the trial court was hypothecating rather than ruling on the right to subpoena an adverse party's expert witness, that response, together with the ruling on the discoverability of the letter, support the plaintiffs' argument that it was unfair and prejudicial for the trial court in mid-trial to exclude the witness.
This unfairness was exacerbated when the plaintiffs were derided at trial for failing to produce a New Hampshire surgeon as an expert, after being prohibited by the court from doing so. Although Judge Wyman's ruling was on discovery, and Judge Dunn's on admissibility, the latter exclusion prejudiced the plaintiffs' presentation of their case and their ability to corroborate the views of Dr. Lipson, another expert. At trial, the defendants could have impugned the value and weight of Dr. Moyle's testimony if it was admitted, but it was error for the trial court to exclude the testimony altogether.
At oral argument, subsidiary issues were raised: i.e., whether the expert was privileged from testifying because of his initial contact with the defendants; whether the expert should be forced to testify against his will; and whether a party could in effect insulate experts from testifying by perfunctorily consulting those experts.
The plaintiffs argued that there is no privilege exempting an opposing party's expert from testifying against his original client and that whether the expert wanted to testify was irrelevant. The defendants countered that (1) there is a privilege protecting experts from testifying under these circumstances, (2) the question was one of the doctor's preparation and ability to render opinions based on a full review of the medical records, as well as his preference not to testify, and (3) the expert's opinions were "inspecific answers" to the questions posed and not final opinions on the negligence issues.
The plaintiffs' arguments are more persuasive. The expert's desire not to testify and his lack of preparation are immaterial. Moreover, the weight and credibility of the expert's testimony is a jury question. Accordingly, we hold that the trial court incorrectly prevented the plaintiffs from compelling an expert, who was initially consulted by an adversary, to appear as a witness.
Our holding follows the rule in several other jurisdictions, although it is neither a majority nor a minority rule. See, e.g., Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982); see also ...
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