Jones v. Bordman

• Decision Date: 08 July 1988
• Docket Number: No. 60914,60914
• Citation: 243 Kan. 444,759 P.2d 953
• Parties: Vincent JONES and Cynthia Jones, Appellees, v. Ted J. BORDMAN, and Barbara J. Flakus, and Dr. Joseph Lichtor, Appellants.
• Court: Kansas Supreme Court

Page 953

759 P.2d 953

243 Kan. 444

Vincent JONES and Cynthia Jones, Appellees, v. Ted J. BORDMAN, and Barbara J. Flakus, and Dr. Joseph Lichtor, Appellants.

No. 60914.

Supreme Court of Kansas.

July 8, 1988.

Syllabus by the Court

In an interlocutory appeal from an order of the district court excluding Dr. Joseph Lichtor from testifying as an expert witness, the record is examined and it is held: (1) the district court erred in denying the motion to quash the subpoena duces tecum for Dr. Lichtor's records; (2) the district court erred in excluding Dr. Lichtor as an expert witness on the grounds he was incompetent to testify; (3) the district court erred in taking judicial notice of the memorandum decision in Barnett v. Drees, Case No. 85-C-4694, and adopting the findings of fact in that decision as the findings of fact of the court in the present case; and (4) Dr. Joseph Lichtor does not have standing as an intervening party in this case.

Elizabeth A. Kaplan, of James R. Shetlar Law Offices, Overland Park, argued the cause, and James R. Shetlar, of the same firm, was with her on the brief for appellees Vincent Jones and Cynthia Jones.

Paul Hasty, Jr., of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, argued the cause, and John P. Gilman, of the same firm, was with him on the brief for appellant Bordman.

Margie J. Phelps, of Phelps-Chartered, Topeka, argued the cause and was on the briefs for appellant Lichtor.

ALLEGRUCCI, Justice:

The present case arises from a personal injury action in which the plaintiffs sought to exclude the testimony of defendant Bordman's proposed expert witness, Dr. Joseph Lichtor. The trial court granted the motion to exclude Dr. Lichtor's testimony, and the case is now before this court as an interlocutory appeal.

The plaintiffs, Vincent and Cynthia Jones, filed their petition on September 10, 1984, alleging that they had received personal injuries due to the negligent operation of the motor vehicles driven by the defendants, Ted J. Bordman and Barbara J. Flakus. During the course of the pretrial proceedings in the case, defendant Bordman named Dr. Joseph Lichtor as his expert witness. The plaintiffs sought, by subpoena duces tecum, to obtain extensive documentary materials from Dr. Lichtor. The materials sought by the plaintiffs included all medical reports made by Dr. Lichtor for the past six years, Dr. Lichtor's income tax returns, and a list of all cases in which Dr. Lichtor served as an expert witness for the defendant's attorneys, the firm of Wallace, Saunders, Austin, Brown and Enochs, Chartered, of Overland Park, Kansas. Both the defendant and Dr. Lichtor moved to quash the subpoena. A hearing was held on the motions to quash on March 24, 1987.

On March 25, 1987, the district judge found that the subpoena was proper and denied the motion to quash. The district court authorized the subpoena of materials previously produced by Dr. Lichtor in Case No. 85-C-4694, Barnett v. Drees, which was also pending in the Johnson County District Court. The district court also took judicial notice of the decision of Judge Marion Chipman in the Barnett v. Drees case and, in so doing, adopted the findings of that decision as the findings of the court in the present case. The district court further found that the "burden of proof has shifted to the defendant calling Dr. Joseph Lichtor as a witness to establish his competency to testify as a truthful witness." At the defendant's request, the district court certified an interlocutory appeal pursuant to K.S.A.1987 Supp. 60-2102(b).

The findings and conclusions made by Judge Chipman in Barnett v. Drees, and as adopted by the trial judge in this case, are:

"1. Dr. Lichtor is a board-certified, licensed orthopedic surgeon.

"2. Dr. Lichtor spends approximately 75 to 90 percent of his professional time on medicolegal matters. The balance of his professional time is spent on medical research, medical writing, seeing private patients and related matters.

"3. Dr. Lichtor testifies in court on the average of two times per month. Approximately 90 percent of the time he testifies for the defendant.

"4. Approximately 75 percent of the medicolegal work performed by Dr. Lichtor is performed for the defendant.

"5. Dr. Lichtor also performs examinations in workers' compensation cases. Most of this work is for the plaintiff. However, he has also examined for certain employers or their insurance companies, including the United States Postal Service, various police departments and the Henry Wurst Company.

"6. The Court ordered Dr. Lichtor to produce all medicolegal reports in his possession for the years 1980 through October 1986. Dr. Lichtor produced 245 reports. He failed to produce an undetermined number of reports contained in the subject matter files he maintains."

Findings No. 7 through No. 12 consist of an analysis by the court of the medical findings made by Dr. Lichtor as evidenced in the 245 reports subpoenaed by the plaintiffs. The court compared Dr. Lichtor's findings based upon who requested him to do so, the type of case, and the diagnosis.

"13. Exhibits '17' and '18' are medicolegal reports prepared for the plaintiff by Dr. Lichtor. They are the only reports that Dr. Lichtor acknowledges to have been prepared for the plaintiff. Exhibits '21,' '22' and '23' are acknowledged by Dr. Lichtor to have probably been prepared for the defendant. There are material differences in the tone, content and format between the reports prepared for the plaintiff and those prepared for the defendant. Examples of these differences include the failure of Dr. Lichtor to note anything about the physical agility of a plaintiff whom he is examining for the plaintiff. Dr. Lichtor notes the 'normal' agility of plaintiffs whom he examines for a defendant. Dr. Lichtor also refers to age and degenerative changes of the spine as normal when examining for the defendant. When examining for the plaintiff, he either omits references to x-ray findings or describes them as abnormal. These differences are best explained by the fact that one type of report was prepared for the plaintiff and the other for the defendant. The reports referred to herein are typical examples of the reports prepared by Dr. Lichtor.

"14. The deposition of Dr. Lichtor in this case was begun on Monday, August 25, 1986, and was continued after two hours. Plaintiff's counsel issued a subpoena for Dr. Lichtor for the completion of his deposition. Plaintiff retained the services of a process server, O.W. Boggess, to serve the subpoena. Mr. Boggess attempted to serve the subpoena on Tuesday, August 26, 1986, at approximately 6:30 p.m. at Dr. Lichtor's residence. Mr. Boggess rang the door bell. No one opened the door. Someone from inside the house, a man, asked who was at the door. Mr. Boggess identified himself and asked for Dr. Lichtor. The individual responded that Dr. Lichtor was not there and would not be back until late that night. The individual identified himself as Dr. Lichtor's father. Mr. Boggess recorded notes of this conversation upon returning to his car. He also recorded the license plate and description of an automobile in Dr. Lichtor's driveway. The automobile was owned by Dr. Lichtor and was the car he regularly drove to and from work. Dr. Lichtor testified that he had no knowledge of these events; that he did not identify himself as his father who is deceased; and that he knew of no one else who could have been at his house on the date and time in question. Dr. Lichtor's testimony concerning this incident is not credible. The testimony of Mr. Boggess is credible. The only reasonable conclusion which the Court, as the finder of fact, may draw from this testimony is that Dr. Lichtor was the person responding to the questions of Mr. Boggess and that Dr. Lichtor did not testify truthfully concerning this incident. Dr. Lichtor denied any knowledge of this incident at the hearing on his qualifications on February 17, 1987, and at the conclusion of his deposition on August 28, 1986. Dr. Lichtor's testimony cannot be attributed to a failure of memory or a simple lack of knowledge. Dr. Lichtor's testimony is the result of his intent to deceive the finder of fact.

"15. Dr. Lichtor testified, as he has in prior cases, that he is unaware of the amount of his income or the amount attributable to his medicolegal work. The Schedule 'C's' of Dr. Lichtor's tax returns for the years 1980 through 1985 were introduced into evidence. Dr. Lichtor assisted in the preparation of these schedules and reviewed them prior to filing them. Notwithstanding that Dr. Lichtor had been cross-examined on this subject on repeated prior occasions, and in the deposition in this case, and at the hearing on his qualifications, Dr. Lichtor persisted in his denial of knowledge concerning his income and concerning the amount attributable to his medicolegal activities. His persistent denial of knowledge of these facts can only be attributed to his intent to deceive the finder of fact.

"16. Dr. Lichtor has written a book entitled, 'Understanding Personal Injuries in Tort Litigation.' This book sets forth Dr. Lichtor's opinions concerning the proper method of evaluation, diagnosis and treatment of injuries sustained in accidents. Dr. Lichtor sets forth standards for keeping medical records, for proper wording of diagnoses and for necessary elements of a diagnosis. Dr. Lichtor testified that these are standards he applies in his private practice and in his medicolegal work. However, Dr. Lichtor does not apply these standards in his private practice. Dr. Lichtor fails to keep records on certain patients and he regularly uses diagnostic terminology condemned in his book. A review of over 900 private patient charts kept by Dr. Lichtor fails to establish any effort by him to adhere to the diagnostic standards he requires in medicolegal matters."

Findings Nos. 17 and 18 deal with Dr. Lichtor's...