Nielsen v. Brown

• Decision Date: 26 September 1962
• Parties: Lynne Dixon NIELSEN, Respondent, v. Beverly Elizabeth BROWN, Appellant, Charles Eugene Brown and R. M. Brown Defendants.
• Court: Oregon Supreme Court

Page 896

374 P.2d 896

232 Or. 426

Lynne Dixon NIELSEN, Respondent, v. Beverly Elizabeth BROWN, Appellant, Charles Eugene Brown and R. M. Brown Defendants.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 7, 1962.

Decided Sept. 26, 1962.

H. H. Phillips, Portland, argued the cause for appellant. On the briefs were Phillips, Coughlin, Buell & Phillips, Portland.

Lewis Hoffman, Eugene and James J. Duryea, San Francisco, Cal., argued the cause for respondent. With them on the brief were Bailey, Hoffman & Spencer, Eugene.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

LUSK, Justice.

This is a personal injury action based on charges of gross negligence in the operation of an automobile by the defendant Beverly Elizabeth Brown. Two other defendants, sued as owners of the automobile, were exonerated on the trial. The jury returned a verdict for the plaintiff against Beverly Elizabeth Brown (hereinafter referred to as the defendant) for $32,255 and from the consequent judgment she has appealed.

Plaintiff and defendant were high school students at the time of the accident out of which the action arose. Plaintiff was a passenger in the car driven by the defendant. The evidence shows that the defendant attempted to make a left hand turn while driving at an excessive rate of speed--90 miles per hour according to some of the testimony--and that the car overturned. Plaintiff sustained serious injuries. She was badly burned by gasoline from the car and keloid scars on her breasts and other parts of her body remain which probably cannot successfully be treated by plastic surgery.

For error in the reception of evidence, to be later considered, we have concluded that the judgment must be reversed. In view, however, of a new trial, it is necessary to pass upon other assignments of error. One of these, involving an important question of evidence, is directed to the ruling of the trial judge which permitted Dr. Reinhold Kanzler, a plastic surgeon, to testify concerning the plaintiff's injuries as a witness for the plaintiff. Defendant objected on the ground that Dr. Kanzler had been retained by her to examine the plaintiff in preparation for the trial.

The record shows that during the presentation of plaintiff's case in chief counsel for the defendant, Mr. James K. Buell, in chambers stated to the court that he assumed that Dr. Kanzler would be called as a witness by the plaintiff because he had been served with a subpoena by her, and moved 'that any attempt on the part of the plaintiff or her attorney to call Dr. Kanzler as a witness be suppressed and that the Court instruct counsel not to do so.' The ground of the motion was 'that the examination of the doctor at my request and the findings and conclusions that he made is part of the work of the lawyer in the preparation of a case for the trial and is confidential and they are not entitled to go into it, and I detect in the proposed procedure, a manner of pettifogging around the edges of this case to attempt to smear me and smear my clients and smear the doctor and an attempt on the part of the plaintiff to bolster up or distract the attention of the jury from the testimony of their own attending physician yesterday.'

The judge ruled that he would allow the plaintiff to call Dr. Kanzler 'as a witness concerning his examination made of the plaintiff.' The ruling is assigned as error.

Dr. Kanzler thereafter took the stand as a witness for the plaintiff and testified at length as to his findings based upon his examination of the plaintiff and gave his opinion that it would be hazardous to attempt to remove the scars. In general, he confirmed the opinion expressed by a physician previously called as a witness by the plaintiff and no doubt brought added weight to that opinion because plastic surgery is Dr. Kanzler's specialty.

It is to be observed at the outset that the procedure of attempting to 'suppress' the testimony of a witness in advance of his being called to the stand is not one to be commended. The judge is not required to make a ruling until objection is interposed to a question asked. Inasmuch, however, as the judge did rule, albeit on what was at the time a hypothetical rather than an actual state of affairs, and everyone concerned seems to have treated the matter as though the question sought to be raised is properly here on its merits, we shall so consider it.

The specific grounds of objection stated by counsel were that the evidence expected to be elicited was 'part of the work of the lawyer in preparation of a case for the trial' and was 'confidential' and that the proposed procedure was an attempt to 'smear' the attorney for the defendant and his clients and the doctor, etc.

In support of the second ground it is argued that communications between Dr. Kanzler and the attorney for the defendant were privileged because of the existence of an attorney-client relationship. Our statute upon that subject reads:

'An attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon, in the course of professional employment.' ORS 44.040(b).

But no attorney-client relationship existed here. The plaintiff was not Mr. Buell's client and Dr. Kanzler was not a client, but an agent, of the defendant. The cases relied on by the defendant are not in point. In Brink et ux. v. Multnomah County, 224 Or. 507, 356 P.2d 536, we held that a report made by an appraiser employed by the county as part of the preparation for the trial of a condemnation action was privileged and properly excluded when offered in evidence by the property owner. The deputy district attorney in objecting to admission of the report stated that Kolberg, the appraiser, had been employed by the county 'to observe this property in question and to act as a consultant and advisor to me as Deputy District Attorney representing Multnomah County and in that respect has communicated with me in regard to certain data relative to this problem.' The court said:

'A communication made under the circumstances described by defendant's counsel would fall within the privilege extended to a client for communications with his lawyer. A communication 'by any form of agency employed or set in motion by the client is within the privilege.' 8 Wigmore, Evidence § 2317, p. 616 (3d ed. 1940); City and County of San Francisco v. Superior Court, 1951, 37 Cal.2d 227, 231 P.2d 26, 31, 25 A.L.R.2d 1418. * * *' 224 Or. at 516-517, 356 P.2d at 540.

City and County of San Francisco v. Superior Court, supra, cited by the court in the Brink case and relied on by the defendant, held that a physician employed by the plaintiff in a personal injury case to examine the plaintiff in order to aid the latter's attorneys in the preparation of the case for trial could not be compelled to answer questions as a witness for the defendant regarding his examination of the plaintiff. To admit the testimony, it was held, would be to violate the rule against disclosing communications between attorney and client. The privilege, it was said, 'embraces not only oral or written statements but actions, signs, or other means of communicating information by a client to his attorney.' It will be noticed that the communications in this case were between the attorney and his client through the intermediary, the physician, not, as here, between the attorney and his adversary's client. The distinction is pointed out in Grand Lake Drive In v. Superior Court, 179 Cal.App.2d 122, 125, 3 Cal.Rptr. 621, 625, and in Jorgensen v. Superior Court, 163 Cal.App.2d 513, 329 P.2d 550, where it was held that the plaintiff in a personal injury action who had voluntarily submitted to a physical examination at the request of the defendant, was entitled to a copy of the doctor's report. Similar cases relied on by the defendant are distinguishable for the same reason: Wilson v. Superior Court, 148 Cal.App.2d 433, 307 P.2d 37 ¹ (expert employed by the defendant in an action for damage to plaintiff's land to investigate the cause of a slide and to make a report); State v. Hunt, 25 N.J. 514, 138 A.2d 1; State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (the last two cited cases were first degree murder cases in which attorneys for the defendants had their clients examined by a psychiatrist). In all these cases the courts turned back the efforts of opposing parties to call the experts as witnesses and to compel them to disclose the results of their investigation and examinations.

Whatever communications there may have been between Dr. Kanzler and the attorney for the defendant as the result of the former's examination of the plaintiff and concerning which he was permitted to testify, they did not originate with a client of the attorney but with the plaintiff, and the facts, therefore, do not bring the case within the attorney-client privilege.

The defendant's main contention is that admission of the testimony violated the rule protecting the so-called 'work product of the lawyer,' a phrase which appears to have first gained currency through the opinion of Judge Goodrich in Hickman v. Taylor, 153 F.2d 212, 223 (3d Cir. 1945), aff. 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. This court has never heretofore had occasion to consider the question of the existence of the boundaries of this rule except in the Brink case, where it was said that the plaintiffs' demand for the information contained in the expert's report might possibly have been resisted by defendant's counsel on the ground that it was a part of his 'work-product' arising out of his preparation for trial, but as there were other adequate grounds for decision, it was deemed unnecessary to determine whether the rule was applicable.

The Hickman case (the leading case on this question) arose under the discovery provisions of the Federal Rules of Civil Procedure, Rules 26, 33, 34, 28 U.S.C.A. following section 723c...