Polum v. North Dakota Dist. Court, Stark County, Southwest Judicial Dist.

• Decision Date: 18 January 1990
• Docket Number: No. 890149,890149
• Citation: 450 N.W.2d 761
• Parties: Jeffrey POLUM, Petitioner, v. NORTH DAKOTA DISTRICT COURT, STARK COUNTY, SOUTHWEST JUDICIAL DISTRICT, Judge Allan Schmalenberger, and Rod Wulff, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 761

450 N.W.2d 761

Jeffrey POLUM, Petitioner, v. NORTH DAKOTA DISTRICT COURT, STARK COUNTY, SOUTHWEST JUDICIAL DISTRICT, Judge Allan Schmalenberger, and Rod Wulff, Respondents.

Civ. No. 890149.

Supreme Court of North Dakota.

Jan. 18, 1990.

Dosland, Dosland, Nordhougen, Lillehaug & Johnson, P.A., Moorhead, Minn., for petitioner; argued by J.P. Dosland, Moorhead, Minn.

Lucas & Smith, Bismarck, for respondents; argued by A. William Lucas, Bismarck.

ERICKSTAD, Chief Justice.

Jeffrey Polum petitioned this court for a supervisory writ directing the District Court for Stark County to vacate its order compelling discovery. The petition is granted.

Polum was injured while water skiing behind a boat operated by Rod Wulff. Polum was treated for his injury by Dr. Adel F. Hassan and Dr. Willard R. Lilly.

Polum sued Hassan and Lilly for medical malpractice arising out of their treatment of his injuries. Polum retained a physician to render an expert opinion on malpractice, and designated him as an expert witness to be called at trial. The expert was deposed in the malpractice action. Ultimately, Polum settled his malpractice claims against Hassan and Lilly.

Polum then sued Wulff, alleging that Wulff's negligent operation of the boat caused his injuries. Wulff, through interrogatories, sought to discover the identity of, and obtain copies of reports of, experts retained by Polum in the prior malpractice action. Polum objected to these interrogatories, and the court issued its order compelling disclosure. Polum has now petitioned this court for a supervisory writ ordering the district court to vacate its order.

I. JURISDICTION

Initially we must determine whether this is an appropriate case in which to exercise our supervisory jurisdiction. Issuance of writs under our supervisory jurisdiction is entirely discretionary with this court, and will be done rarely and with caution. Lashkowitz v. Disciplinary Board, 410 N.W.2d 502, 503 (N.D.1987); Heartview Foundation v. Glaser, 361 N.W.2d 232, 234 (N.D.1985). Such jurisdiction will only be invoked to rectify errors and prevent injustice when no adequate alternative remedies exist. Odden v. O'Keefe, 450 N.W.2d 707, 708 (N.D.1990); Minot Daily News v. Holum, 380 N.W.2d 347, 349 (N.D.1986); Heartview Foundation v. Glaser, supra, 361 N.W.2d at 233.

In the context of a court order compelling answers to interrogatories, we have stated:

"In this instance the petitioners have no viable alternative remedy to a supervisory writ. The district court order compelling petitioners to answer the interrogatory is not appealable [see Sec. 28-27-02, N.D.C.C.; Northwest Airlines v. State, Through Bd. of Equal., 244 N.W.2d 708 (N.D.1976) ], and they have no recourse but to answer the interrogatory or be held in contempt [see Rule 37(d), N.D.R.Civ.P.]. Consequently, the only feasible remedy available to petitioners is to seek a supervisory writ." Heartview Foundation v. Glaser, supra, 361 N.W.2d at 234.

We conclude that this case is appropriate for exercise of our supervisory jurisdiction.

II. WORK PRODUCT

Polum has based his arguments on appeal upon his assertion that the expert's identity and report are within the scope of the work-product doctrine and not discoverable under Rule 26(b)(3), N.D.R.Civ.P.

Our Rule 26 is derived from the corresponding federal rule, and thus we will look to interpretive federal caselaw for guidance in construing our rule. E.g., Shark v. Thompson, 373 N.W.2d 859, 863 (N.D.1985). When the federal rule was amended in 1970, the accompanying Notes of the Advisory Committee made it clear that the "new provisions of subdivision (b)(4) ... reject as ill-considered the decisions which have sought to bring expert information within the work-product doctrine." Various federal courts have thus concluded that discovery of expert information is governed by Rule 26(b)(4), not the work-product provisions of Rule 26(b)(3). See, e.g., Toledo Edison Co. v. G A Technologies, Inc., 847 F.2d 335, 340-341 (6th Cir.1988); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 594 (3d Cir.1984); USM Corp. v. American Aerosols, Inc., 631 F.2d 420, 424 (6th Cir.1980). ¹ Numerous state courts, interpreting state rules derived from the federal rule, have also concluded that the work-product doctrine does not encompass expert information. See, e.g., Sea Colony West Phase I Condominium Association, Inc. v. Sea Colony, Inc., 438 A.2d 1233, 1235-1236 (Del.Super.Ct.1981); Mims v. Casademont, 464 So.2d 643, 644 (Fla.Dist.Ct.App.1985); American Buildings Co. v. Kokomo Grain Co., Inc., 506 N.E.2d 56, 59 (Ind.Ct.App.1987).

We conclude that, under the circumstances presented in this case, the work-product doctrine is inapplicable to the determination whether the expert information sought is properly discoverable.

III. RULE 26(b)(4)

The applicable provisions governing discovery of expert information are contained in Rule 26(b)(4), N.D.R.Civ.P. Because the expert in this case has not been designated as a witness to be called at trial, the relevant provision is Rule 26(b)(4)(B):

"A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."

The primary question presented here is whether an expert retained in prior litigation, which arose out of the same factual occurrences and involved essentially identical legal issues, should be considered an expert retained in anticipation of litigation or preparation for trial for the purposes of this case. The question is a novel one, with very limited caselaw discussing the issue.

The case which perhaps presents the most similar factual scenario is In re Agent Orange Product Liability Litigation, 105 F.R.D. 577 (E.D.N.Y.1985). In Agent Orange, supra, three doctors had been retained as experts by the defendants in connection with a class action lawsuit. That action settled, and plaintiffs who had "opted-out" of the class action sought to depose the three doctors. In a well-reasoned and thoughtful opinion, Chief Judge Weinstein concluded that discovery of the three experts was governed by Rule 26(b)(4)(B), F.R.Civ.P.:

"None of the doctors has been involved in pretrial preparation in the Lilley and Hogan cases. It does not necessarily follow, however, that Rule 26(b)(4) does not control discovery of these experts. These three experts were retained by defendants 'in anticipation of litigation or [preparation] for trial' in Ryan, a companion case in this multidistrict litigation that raised nearly identical legal and factual issues. See In re 'Agent Orange' Product Liability Litigation, 597 F.Supp. 740 (E.D.N.Y.1984). The defendants in the Lilley and Hogan actions are also defendants in the Ryan class action; the plaintiff in Lilley is a Ryan class member who opted out of the class.

* * * * * *

"Given the legal and factual similarities, the involvement of many of the same parties, and the procedural realities of the [multidistrict litigation] process, it is reasonable to interpret Rule 26(b)(4) to reach experts retained by a party for trial preparation in a closely related case that is before the court as part of the same multidistrict litigation." In re Agent Orange Product Liability Litigation, supra, 105 F.R.D. at 580.

Similarly, in Hermsdorfer v. American Motors Corp., 96 F.R.D. 13 (W.D.N.Y.1982), the plaintiffs sought to depose experts who had been hired by the defendant to conduct experiments in connection with numerous pending and future lawsuits. In concluding that Rule 26(b)(4)(B), F.R.Civ.P. applied, the court stated:

"Plaintiffs rely heavily upon language in Grinnell Corp. v. Hackett, 70 F.R.D. 326, 333 (D.R.I.1976), stating that in order for rule 26(b)(4)(B) to apply 'the information sought [must have been] obtained for the very purpose of preparing for the litigation in question.' This language is not inconsistent with applying rule 26(b)(4)(B) to expert information obtained for the purpose of preparing for numerous lawsuits, some perhaps already filed and others yet anticipated merely as a matter of statistical or logical probability. The information sought here was indeed obtained for the very purpose of preparing for this litigation--and all other similar litigations against defendants." Hermsdorfer v. American Motors Corp., supra, 96 F.R.D. at 15.

See also In re Sinking of Barge Ranger I, 92 F.R.D. 486, 489 (S.D.Tex.1981) ("The test to be applied is whether, in light of the nature of the documents and factual situation in a particular case, the experts and their information can fairly be said to have been obtained or acquired because of the prospect of litigation.").

A somewhat different situation was presented in American Buildings Co. v. Kokomo Grain Co., Inc., 506 N.E.2d 56 (Ind.Ct.App.1987). The plaintiff sued to recover damages for collapse of a building provided by the defendant, and sought to discover the report of an expert retained by the defendant in prior litigation involving collapse of another building. The court held that Rule 26(B)(4)(b) of the Indiana Trial Rules did not apply to an expert retained or specifically hired in anticipation of prior litigation. American Buildings, supra, 506 N.E.2d at 59-61. The court attempted to distinguish Agent Orange, supra. American Buildings, supra, 506 N.E.2d at 60-61 n. 1.

We believe these cases, read together, support the conclusion that an expert retained in anticipation of prior litigation which is closely related legally and factually to the present litigation is covered by Rule 26(b)(4)(B), N.D.R.Civ.P. In this case, the expert was retained to provide an expert opinion on malpractice in Polum's action...