Klabunde v. Stanley

• Decision Date: 30 December 1970
• Docket Number: No. 4,4
• Citation: 384 Mich. 276,181 N.W.2d 918
• Parties: Bettie L. KLABUNDE, Individually and Bettie L. Klabunde, Administratrix of the Estate of Donovan E. Klabunde, Deceased, Plaintiff-Appellee, v. Arthur L. STANLEY, M.D., and C. J. Stringer, M.D., Defendants-Appellants, and Ingham Medical Hospital, Defendant.
• Court: Michigan Supreme Court

Page 918

181 N.W.2d 918

384 Mich. 276

Bettie L. KLABUNDE, Individually and Bettie L. Klabunde Administratrix of the Estate of Donovan E Klabunde, Deceased, Plaintiff-Appellee, v. Arthur L. STANLEY, M.D., and C. J. Stringer, M.D. Defendants-Appellants and Ingham Medical Hospital, Defendant.

No. 4.

Supreme Court of Michigan.

Dec. 30, 1970.

John P. O'Brien and Raymond Joseph, Lansing, by John P. O'Brien, Lansing, for plaintiff-appellee.

Foster, Campbell, Lindemer & McGurrin, Lansing, by John L. Collins, Lansing, of counsel, for defendants-appellants.

Before the Entire Bench, except KELLY, J.

BRENNAN, Chief Justice.

THE CASE

Plaintiff commenced this action in March of 1962, seeking recovery of damages for alleged medical malpractice in treatment of her husband. In January of 1963, interrogatories were filed by defendants which requested plaintiff to:

'III. State the name and address of every member of the medical profession that you have consulted or had conferences with, or your attorneys have had conferences with or consulted with as proposed expert witnesses to testify on your behalf as to the alleged negligence or malpractice of Defendants.

'IV. List each medical treatise or article that you or your attorneys have used in connection with the preparation of the Declaration in this cause or upon which you rely as a basis for the alleged negligence or malpractice of Defendants.

'V. State whether you or your attorneys have any written reports received from so-called expert witnesses that you have consulted or intend to use at a trial of this cause and attach copies of said reports hereto.'

Plaintiff's answer to the interrogatories was filed on August 2, 1963:

'3. I do not have sufficient knowledge to answer interritory (sic) III with reference to my attorneys, but as to myself, the answer is 'none';

'4. I do not have sufficient knowledge to answer interrogatory IV with reference to my attorneys, but as to myself, the answer is 'none';

'5. I do not have sufficient knowledge to answer interrogatory V with reference to my attorneys, but as to myself, the answer is I have 'none'.'

At a pretrial conference held on February 27, 1964, defendants again requested the names and addresses of those experts who 'will be relied upon to establish the grounds of negligence, malpractice and so forth set forth in the declaration.' Plaintiff resisted the pretrial request; a motion to compel answer to interrogatories or to furnish identity of expert witnesses was filed on July 2, 1964, pursuant to GCR 1963, 313.1, 313.2 and 302.2(1), and a hearing was scheduled for November 27, 1964. The hearing on the motion was adjourned at the request of defendants and was never rescheduled. On March 7, 1967, defendants filed a motion for discovery supported by affidavit which prayed for the following:

'(1) For an order requiring Plaintiffs to divulge and disclose the names of all expert witnesses that they intend to call at trial.

'(2) For an order limiting Plaintiffs in their right to call expert witnesses to those names listed and disclosed pursuant to Order of this Court.

'(3) That this Court set the day of March 18, 1967 for the taking of the deposition of the expert witness or witnesses that Plaintiffs intend to call at the time of trial.'

Plaintiff filed no answer to the motion but filed a post-hearing affidavit in opposition to the motion.

The trial court denied defendants' motion on July 3, 1967, reasoning that the applicable court rules granted discretion to grant or deny the motion, and rejecting defendants' contention that the motion should have been granted as a matter of right. An interlocutory appeal from the order denying discovery was taken; the Court of Appeals, ¹ while affirming the trial court's right of discretion, held that the order denying the requested discovery constituted an abuse of discretion. Pursuant to GCR 1963, 820.1(7), it entered an order requiring plaintiff to divulge the names and addresses of the proposed expert witnesses, restricting plaintiff to the use at trial of those experts divulged, and authorizing defendants to depose such experts at defendants' expense with respect to the qualifications and experience of the experts in the field of their testimony and whether such experts considered any facts not available to defendants in formulating their opinions.

DISCUSSION

The issue presented is, very simply, whether the trial court abused its discretion by denying the defendants' motion to depose plaintiff's expert witnesses. We hold that the trial judge did not abuse his discretion for two reasons.

First, because the request came too late. Whatever rights any party may have to obtain Pretrial discovery, such rights are always subject to the trial judge's right and duty to control the flow of litigation. Standing alone, the fact that the lawsuit was then five years old when the trial judge denied discovery satisfies us that there was not an abuse of discretion in its denial. GCR 1963, 301.7 ² providing that discovery may not be had after the pretrial conference without special motion for good cause shown, was not in effect when this case went through pretrial conferences in February of 1964 and again in 1965. ³ None the less, the principle that a judge is responsible for moving his docket is not a new one, and discretion was always lodged in trial judges to deny discovery when that process interfered with expeditious disposition of civil litigation. ⁴

Second, there was no showing made before the trial judge as to any special need for discovery deposition to be taken for plaintiff's experts. An expert is not a person 'having knowledge of relevant facts' within the meaning of GCR 1963, 302.2. ⁵ Neither is an expert a person whose opinion testimony can be secured by means of a subpoena under GCR 1963, 305. ⁶ By definition, an expert is one who gives opinion testimony, and not testimony concerning 'relevant facts.' ⁷ He has a property right in his opinion and cannot be made to divulge it in answer to a subpoena.

We do not decide whether in a proper case the testimony of an expert may not be compelled in a pretrial discovery order, under penalty of prohibiting use of his testimony at trial; all we say here is that, under the circumstances of this case, denial of the requested discovery, sought as a matter of right, was not an abuse of the trial court's discretion. Thus, any discussion of the work product privilege is not necessary to this decision.

The cause is reversed and remanded to circuit court with direction to schedule the case for trial within 30 days. Costs to plaintiff.

T. M. KAVANAGH, ADAMS and T. G. KAVANAGH, JJ., concurred with BRENNAN, C.J.

BLACK, Justice (concurring).

I agree with the result reached by the Brethren but cannot accept their premise that a question of judicial discretion is involved. I hold instead that the plaintiff in both cases at bar is possessed of a substantively valuable right to keep inviolate the entire product of preparatory work done and to be done by her counsel, and that the defendants and their counsel, this 'one court of justice' as well, are possessed of no license or privilege to pry or nose into that product.

The difference between one's substantive right and his right to invoke judicial discretion was marked precisely, with ample supporting authority, in recent Moyses v. Spartan Asphalt Paving Co. (1970), 383 Mich. 314, 325, 326, 174 N.W.2d 797, 801:

'A substantive right is like the presence or absence of pregnancy. It exists or does not exist, and cannot be made to depend on any good or dismaying turn of judicial discretion. Hence one's right of appeal to judicial discretion differs from his substantive rights in that the former is simply the 'Power or privilege of the court to act unhampered by legal rule."

We are referred to no Michigan Rule of Court, and to no procedural statute which might be deemed effective under GCR 1963, 16, and to no decision of this Court, holding that a motion for discovery of an opponent lawyer's ever-provisional witness list, lay or expert, is a proper invocation of judicial discretion. No decision of this Court says that such motions are grantable as a matter of right. And the Gilmore record of our GCR indoctrination meetings of 1962 (as to which see Moyses, supra, at 323, 324, 174 N.W.2d 797) discloses no hint of intention of the drafters or doctrinary discussants, or of any then Justice of this Court, that any part of the new Rules would authorize--even in the name of judicial discretion--a motion as here for compulsive opening up of one's witness-swearing intentions.

When and if this Court decides to open up a lawyer's work product that way, doubtless it will do so by some constitutionally debated Rule of Court, the wording of which may easily make clear a judicial intention of reversing the policy which, for Wilson v. Saginaw Circuit Judge (1963), 370 Mich. 404, 413, 414, 122 N.W.2d 57, 61, was purposefully written:

'Discovery in the text of today's issue has become an uncertain variable of provincial discretion, differing according to views of judges among the federal circuits and federal districts, and differing undeniably in the respective circuits of our State. The reason, as I see it, is that no court of ultimate authority has as yet defined with precision the 'work product of the lawyer,' and has then declared the extent to which--if at all--the traditional privacy of that product may be invaded by discovery proceedings.'

To that portion of the text we added, by footnote 2:

'Consider, as a related aside, the Topsy-grown practice by which disclosure of the identity of witnesses the lawyer and his client may or may not call to the stand is--by some judges--penalty-compelled at pretrial. This indeed, unless resisted, pries into the attorney's strategy as well as his 'mental impressions' and 'legal theories."

Apropos the instant demand for discovery of the identity of some expert this...