Ranft v. Lyons

• Decision Date: 07 May 1991
• Docket Number: No. 90-2134,90-2134
• Citation: 163 Wis.2d 282,471 N.W.2d 254
• Parties: Valerie J. RANFT and Craig L. Ranft, husband and wife, Sarah Ranft, David Craig Ranft, Emily Ann Ranft and Jane Marie Ranft, their minor children, by the minor's Guardian ad Litem, Patrick O. Dunphy, Plaintiffs-Appellants, d v. Thomas P. LYONS, General Casualty Company of Wisconsin and Weait Insurance Corporation, a Wisconsin Corporation, Defendants-Respondents. dd
• Court: Wisconsin Court of Appeals

Page 254

471 N.W.2d 254

163 Wis.2d 282

Valerie J. RANFT and Craig L. Ranft, husband and wife, Sarah Ranft, David Craig Ranft, Emily Ann Ranft and Jane Marie Ranft, their minor children, by the minor's Guardian ad Litem, Patrick O. Dunphy, Plaintiffs-Appellants,^d v. Thomas P. LYONS, General Casualty Company of Wisconsin and Weait Insurance Corporation, a Wisconsin Corporation, Defendants-Respondents.^dd

No. 90-2134.

Court of Appeals of Wisconsin.

Argued April 3, 1991.

Opinion Released May 7, 1991.

Opinion Filed May 7, 1991.

Patrick O. Dunphy, argued, and Jeffrey R. Munson, on the briefs, Cannon & Dunphy, S.C., Milwaukee, for plaintiffs-appellants.

L. William Staudenmaier, on the briefs, and Laura E. Schuett, argued, Cook & Franke, S.C., Milwaukee, for defendants-respondents.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

This appeal from a non-final order raises three important issues relating to pretrial discovery in civil actions. The first issue concerns the scope of the physician/patient privilege and its applicability to medical records of a defendant sued for compensatory and punitive damages because of a drunk-driving accident when those records relate to the defendant's use or abuse of alcohol. The trial court held that the physician/patient privilege prevented the Ranfts from having access to the records. We disagree and reverse.

The second issue is related to the first and concerns whether a defendant sued for compensatory and punitive damages because of a drunk-driving accident may be compelled to submit to a physical examination under Rule 804.10, Stats. The trial court declined to order the examination. Here, too, we reverse.

The third issue presented by this appeal is whether a plaintiff who claims disabling injuries is entitled to pretrial discovery of whether or not he or she has been subject to post-accident photographic or video surveillance by the defendant. The trial court determined that post-accident surveillance was protected work-product and was not discoverable prior to trial. We agree and affirm.

I.

Shortly before midnight on July 19, 1986, Valerie J. Ranft, a pedestrian, was struck by an automobile driven by Thomas P. Lyons as she was crossing a street with her husband. When tested by police later that morning, Lyons, an attorney who had previously represented clients in drunk-driving matters, had a blood-alcohol concentration of .18% of alcohol per 210 liters of breath. He was subsequently convicted of causing injury by the intoxicated use of a motor vehicle in violation of section 346.63(2), Stats. This civil action seeks compensatory and punitive damages on behalf of Ranft, her husband, and their four minor children. ¹

In their answer to the Ranfts' complaint, Lyons and his insurer admitted that Lyons "was negligent in the operation of his automobile shortly before the accident," but asserted that Mr. and Mrs. Ranft were contributorily negligent. Lyons and his insurer also denied liability for punitive damages.

Lyons was deposed. He testified that from approximately noon to five or five-thirty p.m. on the day of the accident he had been at a picnic sponsored by his law firm, and that he drank four ten-ounce cups of beer at the picnic. After leaving the picnic, Lyons went to a tavern where, according to his testimony, he drank "a couple" of bottles of beer before leaving between seven and seven-thirty p.m. Lyons testified that he arrived home between eight and eight-thirty p.m. and drank three more cans of beer before he left between eleven-fifteen and eleven-thirty p.m. As noted, the car he was driving hit Mrs. Ranft shortly before midnight.

Lyons denied feeling any effects of the alcohol he drank the day of the accident, either when he left his house or at the accident shortly thereafter. He also denied showing any signs of alcohol impairment at the accident scene. Although Lyons had represented approximately six persons in drunk-driving cases between 1983 and 1986, he testified at his deposition that he did not recall knowing in July of 1986 whether or not "a blood alcohol level of .10 would have an effect on a person's ability to react."

After the Ranft accident, Lyons, at the direction of his criminal-defense lawyer, went to the Milwaukee Psychiatric Hospital for "an evaluation." The evaluation was done on an outpatient basis and lasted, according to Lyons, "[a] couple of hours." Lyons was not able to recall at his deposition who did the evaluation, but characterized the man as an Hispanic physician.

II.

A. The Ranfts sought access to the records of Lyons' Milwaukee Psychiatric Hospital evaluation and sought an order compelling Lyons to submit to a physical examination under Rule 804.10, Stats., by "a physician experienced in the examination and treatment of alcoholics" if they thought such an examination was necessary after their review of the medical records--or if their access to the medical records was denied. The Ranfts contended they were entitled to this discovery because, according to the affidavit of the Ranfts' counsel filed with the motion, "Mr. Lyons' testimony denying impairment despite his blood alcohol level of .18 is inconsistent with the established literature," a statement that was supported by learned-treatise materials submitted with their motion. Additionally, the Ranfts represented to the trial court that they had retained what they described as "an expert toxicologist and chemist" who was prepared to testify that Lyons would have had to consume more alcohol than he admitted in his deposition testimony in order to reach a .18 blood-alcohol level, and that persons who abuse alcohol can be alcohol-impaired even though they do not outwardly appear to be intoxicated.

The trial court denied the Ranfts' motion for disclosure of the evaluation records, holding that they were protected by the physician/patient privilege and Lyons had not "put his physical condition in issue." The trial court also denied the Ranfts' motion for an order under Rule 804.10, Stats., directing Lyons to submit to a medical examination. The trial court pointed out that its decision concerning the examination under Rule 804.10 was "tied together" with the basis for its ruling that the evaluation records should not be produced. The trial court concluded that an examination under Rule 804.10 was not relevant to Lyons' condition at the time of the accident and would breach his physician/patient privilege. ²

B. Our analysis of the trial court's discovery orders must, as with all discovery disputes, begin with Rule 804.01(2)(a) Stats., which establishes the scope of permissible discovery:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

This is a broad charter, consistent with the underlying purpose of pretrial discovery, which, among other things, is "designed to formulate, define and narrow the issues to be tried." State ex rel. Dudek v. Circuit Court for Milwaukee County, 34 Wis.2d 559, 576, 150 N.W.2d 387, 397 (1967) (discussing discovery practice prior to the adoption of the current rules of civil procedure). A trial court's rulings on discovery are discretionary and will be upheld if they are "consistent with the facts of record and established legal principles." Lievrouw v. Roth, 157 Wis.2d 332, 358-359, 459 N.W.2d 850, 859-860 (Ct.App.1990).

1. In resisting discovery of the Milwaukee Psychiatric Hospital records, Lyons does not argue that the material is not within the expansive scope of Rule 804.01(2), Stats. Rather, he contends that the records are protected by the physician/patient privilege established by Rule 905.04(2), Stats., which provides:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor or psychologist.

There is no dispute but that the Milwaukee Psychiatric Hospital records are within the ambit of this provision. The Ranfts claim, however, that Lyons has put his physical condition in issue so that the privilege gives way pursuant to Rule 905.04(4)(c), Stats. Rule 905.04(4)(c) provides:

There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which he relies upon the condition as an element of his claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

Whether this rule strips the physician/patient privilege from the Milwaukee Psychiatric Hospital records is a question of law that we determine independently. See State v. Taylor, 142 Wis.2d 36, 39, 417 N.W.2d 192, 193 (Ct.App.1987).

Lyons' deposition testimony that, despite his .18 blood-alcohol level and his admission of negligence, he neither felt impaired nor exhibited any signs of impairment supports two elements of his defense: 1) his answer's denial of liability for punitive damages by contending that his actions in connection with the accident did not constitute "outrageous, wanton and reckless conduct" ; and 2) his claim that the Ranfts were contributorily negligent, which--if so--would necessarily require the jury to determine...