Fredrickson v. Louisville Ladder Co., 234

• Decision Date: 05 November 1971
• Docket Number: No. 234,234
• Citation: 52 Wis.2d 776,191 N.W.2d 193
• Parties: Arthur P. FREDRICKSON et al., Appellants, v. LOUISVILLE LADDER COMPANY, a Kentucky Corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 193

191 N.W.2d 193

52 Wis.2d 776

Arthur P. FREDRICKSON et al., Appellants, v. LOUISVILLE LADDER COMPANY, a Kentucky Corporation, et al Respondents.

No. 234.

Supreme Court of Wisconsin.

Nov. 5, 1971.

Action by plaintiffs-appellants, Arthur P. Fredrickson and Sylvia R. Fredrickson, against defendants-respondents, Louisville Ladder Company and Patent Scaffolding Company, to recover for personal injuries sustained as a result of a fall from a scaffold plank manufactured by Louisville Ladder and distributed by Patent Scaffolding.

Plaintiffs claimed that the scaffold plank was defectively manufactured. The trial lasted from July 28 to August 7, 1970. The jury found that the scaffold plank had not been manufactured so as to render it unreasonably dangerous for its intended use. Damages were assessed at $354,670.

Prior to trial appellants made several attempts to obtain the names of the respondents' expert witnesses. On April 6, 1970, the court told the parties to disclose the names of their expert witnesses. Appellants did so. At this time, however, respondents had employed no expert. On April 13, 1970, appellants' counsel wrote to defense counsel, requesting disclosure of any experts the respondents intended to use at trial. The demand was repeated on July 9, 1970, when the appellants served on opposing counsel a written demand for the disclosure of names, addresses and reports of any expert witness. These requests were not responded to by defense counsel. On July 22, six days before trial, the final pretrial conference was held. At this time the appellants again requested that respondents disclose the name of any expert witness they intended to call. Defense counsel replied they had no expert. On the first day of trial, July 28, 1970, defense counsel informed the court that Dr. Verne C. Cutler would be called as an expert witness and gave a copy of Dr. Cutler's report to the appellants. The trial court ordered that Dr. Cutler be made available to allow plaintiffs' counsel to take his deposition. The deposition was taken on August 1, 1970.

On August 5, 1970, before the respondents called Dr. Cutler as a witness, a voir dire examination was held outside of the presence of the jury. That examination revealed that Dr. Cutler had been hired by defense counsel on July 7, 1970, to perform tests in Louisville, Kentucky, on the scaffold planks manufactured by Louisville Ladder Company. These tests were conducted on July 13, 1970. On July 19, Dr. Cutler conferred with defense counsel and revealed in general terms the results of the tests. A meeting was arranged for July 23, the day after the pretrial conference, to discuss the matter further. Dr. Cutler testified that although he recognized the possibility of being called to testify on behalf of the respondents, he was not told that he would definitely be a witness until after the July 23rd meeting.

Based on the information disclosed by the voir dire examination, appellants moved to have the testimony of Dr. Cutler excluded. The trial court denied the motion, but imposed 'terms' (which consisted of ordering payment of $200 to the appellants) upon the respondents before allowing Dr. Cutler to testify. Although the trial judge noted that the failure of respondents to disclose their expert witness worked a hardship on the appellants, he felt that any prejudice had been 'fairly well erased' by giving appellants the opportunity to depose Dr. Cutler in the middle of the trial.

Gaines & Saichek, Milwaukee, for appellants; David A. Saichek, Milwaukee, of counsel.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for respondent Louisville Ladder Co.

HANLEY, Justice.

The sole issue on this appeal is whether it was error for the trial court not to exclude the testimony of Dr. Verne C. Cutler.

Respondents contend that they did not violate any pretrial order for the disclosure of names of expert witnesses, since there was no pretrial order in the first instance. Sec. 270.53(2), Stats., defines an order as follows:

'Every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order.'

The written order entered by the trial court after the final pretrial conference does not direct that the names of expert witnesses be disclosed. This court has directed that a record should be made of any agreements reached at pretrial conference. Zelof v. Capital City Transfer, Inc. (1966), 29 Wis.2d 384, 392, 139 N.W.2d 1. In this case, however, both the parties and the trial court viewed the oral direction of the judge as an order. The record supports the contention that the respondents were told to reveal the name of their expert. Apparently the trial judge felt there was no need to enter an order for the disclosure of expert witnesses when the defense counsel explicitly denied having any expert. Perhaps appellants should have requested an order in writing, excluding any expert testimony on behalf of respondents since respondents' declaration of 'no expert' was made at the last pretrial conference.

Respondents further assert that by virtue of the holding in Halldin v. Peterson (1968), 39 Wis.2d 668, 159 N.W.2d 738, he was entitled to withhold the name of Dr. Cutler at the pretrial conference, since, at that time, the expert was merely a consultant. Halldin involved a medical malpractice action in which the plaintiffs wished to examine x-rays taken by the defendant doctors. The defendants refused to produce them unless the plaintiffs agreed to reveal the name of any doctor or technician who examined the x-rays. This court stated that it was not necessary for a party to disclose the identity of a mere consultant until he had been designated a witness. The differences between Halldin and the instant case are evident. In the former action, the demand for the production of the names of experts was made during discovery proceedings, when the plaintiffs were still examining possible courses to take in the trial of the lawsuit. Here, however, the demand was made at the final pretrial conference, just prior to trial. In Halldin, the names of medical witnesses were sought; it was noted in that case that it is sometimes difficult to obtain a professional medical opinion when the experts realize that they might be called upon to testify against their fellow practitioners. No such so-called 'conspiracy of silence' is known to exist in the area of mechanical engineering, which is the field of expertise in the instant case. Thus, the basis for the Halldin ruling does not exist here.

Discovery proceedings frequently involve the attorney's work-product. See: State ex rel. Dudek v. Circuit Court (1967), 34 Wis.2d 559, 150 N.W.2d 387. Restrictions are placed upon the discovery of an attorney's work-product to enable him to fully prepare his client's case without intrusion from an opponent who should have the incentive to prepare his own case without having to delve into the confidential material amassed by the other party. In a pretrial conference, however, the emphasis is placed upon stipulation, revelation and compromise. Sec. 269.65, Stats. It has been stated that '(i)n order to accomplish the purpose of pretrial procedure * * * in the process of adjudication, there must be a spirit of cooperation between the court and the lawyers representing litigants. * * *' Klitzke v. Herm (1943), 242 Wis. 456, 8 N.W.2d 400.

In the instant case, it does not appear that defense counsel was completely frank or candid with the trial court or opposing counsel. On July 7, he hired Dr. Cutler as a consultant to conduct tests on the scaffold plank, and he received a favorable preliminary report on July 19. On that day there must have existed in defense counsel's mind at least a faint inkling that it might be wise to call that expert as a witness at trial. Rather than flatly stating, 'we have no expert,' he could have alerted the court and opposing counsel at the pretrial conference on July 22 that he was considering a witness and could have offered to reveal the expert's name as soon as he had finished reading the expert's final report. There would have been no need to divulge the name of a 'mere consultant' if Dr. Cutler's report was unfavorable to defendants. To allow an attorney to postpone 'designating' his 'consultants' as expert witnesses until immediately before trial would be to countenance deception on the trial court and opposing counsel. This court rejected any such possibility in State ex rel. Dudek v. Circuit Court, supra, 34 Wis.2d at page 577, 150 N.W.2d at page 397:

'* * * (W)e shun any rule which would tend to encourage indolence or lying back in pretrial investigation or which would tempt an attorney to unfairly conceal the results of investigations (he) ha(s) made.'

App...