Mason v. Robinson

• Decision Date: 23 November 1983
• Docket Number: No. 69143,69143
• Citation: 340 N.W.2d 236
• Parties: Edward E. MASON, Plaintiff, v. The Honorable L. Vern ROBINSON, District Court Judge of the Sixth Judicial District, Defendant.
• Court: Iowa Supreme Court

Page 236

340 N.W.2d 236

50 A.L.R.4th 661

Edward E. MASON, Plaintiff, v. The Honorable L. Vern ROBINSON, District Court Judge of the Sixth Judicial District, Defendant.

No. 69143.

Supreme Court of Iowa.

Nov. 23, 1983.

Thomas J. Miller, Atty. Gen., Mark E. Schantz, Des Moines, and John R. Scott, Sp. Asst. Atty. Gen., for plaintiff.

H. Daniel Holm, Jr., and William C. Ball of Ball, Kirk & Holm, P.C., Waterloo, and Nick Critelli, Des Moines, for defendant.

F. Richard Lyford of Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for amicus curiae Iowa Medical Soc.

Considered en banc.

SCHULTZ, Justice.

The issue presented in this action is whether a trial court has discretion to relieve an unwilling expert witness, who is a stranger to the litigation, from providing opinion testimony during a pretrial discovery deposition. Since we determine a litigant does not have an absolute right to compel an unwilling expert to give an opinion on facts outside the expert's personal knowledge, we hold that a trial court has discretion to either relieve or compel such testimony depending on the circumstances presented in a particular case.

This original certiorari action arises from a district court order compelling the plaintiff, Edward E. Mason, M.D., to respond to deposition questions involving his expertise in the field of gastric by-pass surgery. Although the district court is the nominal defendant in this proceeding, Mitchell, a medical malpractice plaintiff, is the interested party and has assumed defense of this action.

Dr. Mason's involvement in the present dispute had its origin in a medical malpractice action currently pending in Davis County, Iowa. Plaintiff in that action, Vicki Mitchell (executor of her husband's estate) alleged that the decedent, Ronald Mitchell, died as a result of negligence by three doctors and three nurses in their performance of gastric by-pass surgery. During the deposition of one of the defendant doctors, (Dr. Schiebe), Mitchell learned that the doctor had provided factual information about the surgery and its subsequent complications to the National Bariatric Surgery Registry at the University of Iowa Hospitals and Clinics. Dr. Mason is the director of the registry and a professor of surgery at the University of Iowa College of Medicine.

After learning of this exchange between the two doctors, Mitchell subpoenaed Dr. Mason to take his deposition in Johnson County. Although Mason appeared at the deposition, he refused to answer any questions concerning the information he had received from Dr. Schiebe. He felt the information was confidential since it was acquired in his capacity as director of the registry. Subsequently, Mitchell sought an order from the district court in Johnson County compelling Dr. Mason to answer not only questions regarding the factual information Dr. Mason had acquired, but also to give his expert opinion on the medical care received by the decedent in malpractice action. The district court, Judge Paul J. Kilburg, ruled the information given to Dr. Mason as head of the registry was not privileged pursuant to Iowa Code sections 135.40-.42 and directed Dr. Mason to answer deposition questions concerning this information. The court refused to compel any discovery of Dr. Mason involving his expertise since he had not been consulted by either party as an actual or prospective witness.

After this ruling, Mitchell amended her answers to interrogatories in her Davis County action to indicate that she intended to call Dr. Mason as an expert witness. She again subpoenaed Dr. Mason and also sent him a check for the statutory expert witness fee pursuant to Iowa Code section 622.72. One day before the scheduled deposition Dr. Mason informed Mitchell that he was not willing to testify as an expert in the action. At the deposition, he answered all questions involving the factual information but repeatedly refused to answer any questions based on his expertise.

Mitchell again filed an application in Johnson County District Court. Specifically, she requested an order compelling Dr. Mason "to answer any and all of plaintiff's counsel's questions concerning his general knowledge of the area of gastric by-pass surgery and ... regarding his general opinion as to the care received by Mr. Mitchell...." Dr. Mason filed a resistance to the application supported by affidavit asserting that he was not a party to the case, he was not a treating physician in the case and he did not have an opinion concerning the medical treatment provided in the case, that he was not able to formulate an opinion concerning the standards of medical care applicable to this case without an extensive review of the medical literature and an examination of the medical records, that his testimony would jeopardize the research of the National Bariatric Surgery Registry, that his preparation and testimony in this case would interfere with his responsibilities at University Hospital, and that other experts were available to render opinions concerning the standard of care provided the decedent in this case. The matter was apparently submitted to the district court with the briefs and arguments of the parties but without any hearing or further record.

In response to Mitchell's application, the defendant district court, Judge L. Vern Robinson, ordered Dr. Mason to answer deposition questions about the general standard of care in this type of surgery and any hypothetical questions about the particular standard of care received by decedent in the underlying medical malpractice action. The court also ordered the parties to negotiate the amount of compensation Dr. Mason would receive for his expert testimony. It did not require Dr. Mason to engage in any pre-testimonial preparation or investigation.

In its ruling on the motion to compel, the trial court principally relied on Iowa Rules of Civil Procedure 122(a) and 140(a). Taken literally, the language of these two rules permits deposition discovery from any person on any relevant matter that is not privileged. The court concluded expert testimony was relevant to the issues in the underlying malpractice action and expert witnesses do not enjoy any testimonial privilege in Iowa. Given the parameters of our discovery rules as well as the common law principle of the "public's right to everyman's evidence," the trial court apparently felt it lacked discretion to deny the motion to compel. Because we do not agree, the writ of certiorari is sustained.

Initially, we are confronted with the issue of whether a distinction should be made between compelling an unwilling expert to testify at trial as opposed to such compulsion in the pretrial discovery context. Normally the scope of discovery is not limited to evidence that would be admissible at trial. Iowa R.Civ.P. 122(a). The parties in their respective briefs have relied upon case authority involving expert compulsion in both pretrial and trial situations. Additionally, courts considering whether to compel expert testimony in discovery proceedings generally have not relied on any distinction between discovery and trial testimony in resolving the issue. In re New York Municipal Securities Litigation, 30 F.R.S.2d 842 (S.D.N.Y.1980) (magistrate's report subsequently adopted by district court); Wright v. Jeep Corporation, 547 F.Supp. 871 (E.D.Mich.1982); Young v. Metropolitan Dade County, 201 So.2d 594 (Fla.App.1967). Finally, while arguments could be made that these situations are factually and legally distinct, fairness dictates that an expert not be required to expend time and effort during the discovery process if he could not be compelled to testify at trial.

We conclude, in these limited circumstances, the right to compulsory discovery should be no broader than the right to compel the same expert to testify at trial. Accordingly, a trial court has the same authority to determine the need for and issue protective orders in the discovery context as it would at trial. Having disposed of this corollary issue, we now turn to consideration of the central issue involved in this case.

Mitchell contends a party has a right to opinion testimony as long as it does not require the expert to engage in any preparation. Thus, she reasons the district court order adequately protected Dr. Mason since it did not require him to do any extra work. Moreover, she claims the order conforms to our liberal construction of discovery rules and our strict construction of testimonial privileges. Finally, Mitchell insists the plaintiff is asking this court to engraft a testimonial privilege based on expert status onto our discovery rules.

The plaintiff characterizes the issue somewhat differently. Basically, he argues litigants do not have an absolute right to the expert of their choice. In particular, a party to a medical malpractice action does not have the right to compel previously unformulated opinion testimony from a physician who had no prior connection with the patient in question and who is unwilling to serve as an expert. He insists the creation of expert testimony for a litigant has always been a matter of contractual relations between the parties. Consequently, he urges that the voluntary nature of this relationship should not be overridden by a court except where a party has established that no other reasonable alternative is available. Finally, to the plaintiff, the issue is not one of testimonial privilege but whether he has a duty to testify in this particular case. Since opinion testimony normally is available from more than one source, the question is whether Dr. Mason should become a witness at all, not whether he is privileged from disclosing certain relevant information. With these views in mind, we turn to the authorities relied on by the parties.

The cases concerning the compulsion of expert testimony vary greatly depending on the factual situations presented and the legal approach taken. See collection...