A.G. v. Guitron

• Decision Date: 30 December 2011
• Docket Number: (CC 060909578; CA A137591; SC S059166).
• Parties: A.G., Plaintiff–Appellant, Petitioner on Review, v. Robert GUITRON, Defendant–Respondent,andAerobic and Dancewear Shoppe, LLC, dba Lake Oswego Academy of Dance, Defendant–Respondents, Respondent on Review.
• Court: Oregon Supreme Court

268 P.3d 589

351 Or. 465

A.G., Plaintiff–Appellant, Petitioner on Review,

v.Robert GUITRON, Defendant–Respondent,andAerobic and Dancewear Shoppe, LLC, dba Lake Oswego Academy of Dance, Defendant–Respondents, Respondent on Review.

(CC 060909578; CA A137591; SC S059166).

Supreme Court of Oregon, En Banc.

Argued and Submitted Sept. 20, 2011.Decided Dec. 30, 2011.

On review from the Court of Appeals.^*Jonathan A. Clark, PC, Stayton, argued the cause and filed the brief for petitioner on review.

Janet M. Schroer, Hoffman Hart & Wagner, Portland, argued the cause for respondent on review Aerobic and Dancewear Shoppe. Matthew J. Kalmanson, Hoffman Hart & Wagner, filed the brief. With him on the brief was Janet M. Schroer.

Charles S. Tauman, Corson & Johnson Law Firm, Eugene, filed a brief for amicus curiae Oregon Trial Lawyers Association. With him on the brief was Travis Eiva.WALTERS, J.

In this civil action, we decide that ORCP 44 C required plaintiff to deliver to defendants, at defendants' request, a copy of all written reports of examinations related to the psychological injuries for which plaintiff sought recovery, including, specifically, the report of an examination by a psychologist retained by plaintiff's counsel for the purpose of the litigation. Because defendants requested and plaintiff failed to deliver that report, the trial court entered an order, pursuant to ORCP 44 D, precluding the psychologist from testifying at trial, and defendants ultimately prevailed. The Court of Appeals affirmed the decision of the trial court. A.G. v. Guitron, 238 Or.App. 223, 241 P.3d 1188 (2010). We affirm the decision of the Court of Appeals and the judgment of the trial court.

The facts underlying plaintiff's claim for damages are not relevant to the issue of statutory interpretation that we decide, and we need not repeat them in detail here.¹ It is sufficient to explain that plaintiff sought damages for psychological injuries and, before trial, defendants requested that plaintiff produce the following:

“Copies of any and all detailed written narrative reports of all treatments and examinations of the Plaintiff which have been conducted by any healthcare professional setting forth the examiner's findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier treatments and examinations for the same condition which relate to the Plaintiff's claimed injuries. This is a continuing request.”Plaintiff produced the reports of her treating psychologist, Dr. Puma, but did not produce the reports of Dr. Green, a psychologist whom plaintiff's counsel had retained for purposes of the litigation.

At trial, plaintiff called Green to testify. Defendants objected on the grounds that Green had conducted an examination of plaintiff and that plaintiff had failed to provide the reports of that examination. As a result, defendants argued, plaintiff should not be permitted to call Green as a witness. Plaintiff responded that Green's report was not discoverable because he was an expert witness retained for the purpose of litigation, and the Oregon Rules of Civil Procedure do not require disclosure of the reports of such experts. Plaintiff argued that defendants could have retained their own expert to examine plaintiff, but had not done so.

The trial court agreed with defendants and excluded Green's testimony. ² The court then entered a directed verdict in favor of one of the defendants, and the jury returned a verdict in the other defendant's favor. ³ After entry of judgment for defendants, plaintiff appealed. ⁴ The Court of Appeals affirmed, and we allowed plaintiff's petition for review.

As noted, the question presented in this court is one of statutory interpretation—specifically, whether ORCP 44 C required plaintiff to produce the report of an expert who examined plaintiff for purposes of litigation and not for purposes of treatment. ORCP 44 C provides:

“In a civil action where a claim is made for damages for injuries to the party * * *, upon the request of the party against whom the claim is pending, the claimant shall deliver to the requesting party a copy of all written reports and existing notations of any examinations relating to injuries for which recovery is sought unless the claimant shows inability to comply.”

The text of ORCP 44 C supports the decision of the trial court. ORCP 44 C required plaintiff, the party making a claim for injuries, to deliver to defendants, the party against whom the claim was pending, at defendants' request, a copy of “all written reports” of “any examinations” relating to plaintiff's injuries.⁵ Defendants requested that plaintiff produce all reports of “examinations for the same condition which relate to the Plaintiff's claimed injuries.” Green had examined plaintiff, and that examination was related to her claimed injuries. Plaintiff failed to provide Green's written reports to defendants, and, under the plain terms of ORCP 44 D(2), the trial court had authority to exclude Green's testimony.⁶

Plaintiff argues, however, that ORCP 44 C cannot be read in isolation. Read in context, plaintiff argues, ORCP 44 C governs only the reports of experts who examine and treat a plaintiff (treating experts). It is ORCP 44 B, plaintiff asserts, that addresses production of the reports of experts who examine claimants for the purpose of litigation (litigation experts). ORCP 44 B provides:

“If requested by the party against whom an order is made under section A of this rule or the person examined, the party causing the examination to be made shall deliver to the requesting person or party a copy of a detailed report of the examining physician or psychologist setting out such physician's or psychologist's findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, * * *. This section applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise.”

Under ORCP 44 B, a defendant who has a plaintiff examined by a litigation expert must provide the plaintiff with a copy of that expert's report. After delivery, the defendant has the right to request and receive “like” reports from the plaintiff, i.e., reports of the plaintiff's litigation experts. ORCP 44 C, plaintiff contends, is intended to address a different subject—production of the reports of treating experts. According to plaintiff, ORCP 44 C requires a plaintiff to disclose the reports of his or her treating experts without regard to whether a defendant has had or will have the plaintiff examined by the defendant's own litigation experts. If ORCP 44 C were to also require a plaintiff to produce the reports of his or her litigation experts, plaintiff asserts, it would be redundant of ORCP 44 B and inconsistent with that section's more particular exchange requirements.

As further context for that interpretation of ORCP 44 C, amicus curiae Oregon Trial Lawyers Association points to the fact that, in the absence of specific authorization, the Oregon Rules of Civil Procedure do not permit expert discovery. See Stevens v. Czerniak, 336 Or. 392, 404, 84 P.3d 140 (2004) (so stating). In deciding whether such authority exists, amicus argues, this court should be cognizant that the physician-patient, psychologist-patient, and attorney-client privileges protect the confidentiality of expert communications. Amicus urges that we consult the legislative history of ORCP 44 and its predecessor, former ORS 44.620 (1974), repealed by Or Laws 1979, ch 284, § 199, contending that that history establishes that the legislature intended to limit the reach of ORCP 44 C to the reports of treating experts.

ORCP 44 C is a rule “to which we apply the usual method of statutory interpretation.” Pamplin v. Victoria, 319 Or. 429, 433, 877 P.2d 1196 (1994). Plaintiff and amicus are therefore correct that, to determine its meaning, we look to its context as well as its text, and that, to the extent we deem appropriate, we may also consider legislative history. See State v. Gaines, 346 Or. 160, 171–72, 206 P.3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (explaining statutory interpretation methodology). Existing case law forms a part of a statute's context, SAIF v. Walker, 330 Or. 102, 108–09, 996 P.2d 979 (2000), and we begin our analysis with a review of the law as it existed in 1973 when the legislature enacted the predecessors to ORCP 44, former ORS 44.610 through 44.640 (1974), repealed by Or Laws 1979, ch 284, § 199.

At that time, this court had decided that a defendant in a personal injury action could request, and a trial court had “inherent general power” to order, that the plaintiff submit to a physical examination by medical experts selected by the defendant or designated by the court. Carnine v. Tibbetts, 158 Or. 21, 27, 74 P.2d 974 (1937). In reaching that conclusion, the court rejected the minority view. Id. at 31, 74 P.2d 974. That view was described and rejected in a Washington case that this court cited with approval. Id. at 28–29, 74 P.2d 974. In Lane v. Spokane Falls & N. Ry. Co., 21 Wash. 119, 121, 57 P. 367, 367 (1899), the Washington court summarized the minority view that “it is abhorrent to the principles of liberty to compel a party to submit to such an examination; that it invades the inviolability of the person, is an indignity involving an assault and a trespass, and an impertinence to which a modest woman would not consent.”

Instead, this court agreed with the majority view identified by the Washington court. Carnine, 158 Or. at 29–31, 74 P.2d 974. In Lane, the Washington court explained...