Rickett v. Hayes, 5--5676

• Decision Date: 15 November 1971
• Docket Number: No. 5--5676,5--5676
• Citation: 251 Ark. 395,473 S.W.2d 446
• Parties: Richard W. RICKETT, Jr., Appellant, v. Harry HAYES, Appellee.
• Court: Arkansas Supreme Court

Page 446

473 S.W.2d 446

251 Ark. 395

Richard W. RICKETT, Jr., Appellant, v. Harry HAYES, Appellee.

No. 5--5676.

Supreme Court of Arkansas.

Nov. 15, 1971.

Rehearing Denied Dec. 13, 1971.

Gentry & Huckabay, Little Rock, for appellant.

Smith, Williams, Friday, Eldredge & Clark, and J. D. Watson, Little Rock, for appellee.

FOGLEMAN, Justice.

The critical point for review in this malpractice action is whether the circuit court abused its discretion in limiting the pretrial examination of an expert witness expected to be called by the appellee-defendant. The appellant-plaintiff filed his complaint alleging a cause of action for malpractice of Dr. Harry Hayes, a plastic surgeon in Little Rock, in the diagnosis and treatment of a fracture of appellant's lower jaw, sustained by him on July 1, 1966. Medical experts referred to appellant Rickett's injury as a bilateral compound displaced fracture of the mandible which was concededly later complicated by infection. Critical issues devolved around questions whether appellee had negligently failed to remove teeth in the fracture line, whether the surgery, reduction, fixation and treatment of the injured parts were properly performed and whether the services of an oral surgeon to whom appellant was ultimately referred should have been sought earlier.

Appellee directed pretrial interrogatories to appellant seeking to ascertain the identity of persons appellant expected to call as witnesses or who possessed information regarding matters alleged in the complaint and particularly inquired as to physicians or surgeons on whose testimony appellant would rely. Appellant included in the list of those who possessed information Dr. Wade Smith of Little Rock, to whom he was referred by appellee, Dr. Leigh K. Haynes, a plastic surgeon of Memphis, Tennessee, who treated appellant after the referral to Dr. Smith, Dr. Howard Misner and Dr. Joe Hall Morris, treating oral surgeons of Memphis, and Dr. Robert V. Walker, an oral surgeon of Dallas, along with Little Rock orthopedic surgeons and radiologists. Of these, Smith, Morris and Walker testified at the trial.

In answering pretrial interrogatories, appellee stated his reasons for failure to remove some of Rickett's teeth before undertaking to reduce and fix the fractured jaw. He said that the determination whether such teeth should be removed or retained was a matter of professional medical judgment of the plastic surgeon, governed by his judgment of the circumstances involved, and that he did not remove the teeth in Rickett's case because, in his judgment, they did not interfere with reduction of the fracture. He testified that, in his judgment, teeth should be removed where they were so loose or weakened that their instability might cause future complications. He also answered that, based upon medical judgment, the development of osteomyelitis during the period of some seven weeks between the reduction and fixation and the removal of the appliances placed in appellant's mouth would dictate either immediate surgery or an additional waiting period to allow nature to effect a healing of such a fracture. He chose the latter course of action which he called procrastination. Dr. Hayes admitted that oral surgeons treat a number of injuries about the mouth, teeth and facial bones.

Appellant caused a subpoena to be issued and served on Dr. James G. Stuckey, the only plastic surgeon other than appellee, practicing in the locality. Appellee filed a motion to quash this subpoena. The circuit judge entered a pretrial order denying the motion to quash but limiting the discovery deposition to inquiries about facts, and not about the doctor's opinion regarding appellee's alleged failure to meet the standard of his locality or a similar locality. Appellee also filed a motion questioning the admissibility of testimony of oral surgeons as to the standard of care of a plastic surgeon in Little Rock or a similar locality and appellee's failure to meet that standard. This motion was denied the day before the trial commenced.

Appellant's attorneys took the deposition of Dr. Stuckey under the limitations imposed by the court, but it is not in the record. Just before the trial began, one of appellant's attorneys stated an objection to the court's limitation on the Stuckey deposition, asserting inability to cross-examine this doctor when he testified and reminding the court that there were only two plastic surgeons in Little Rock during the period involved.

We have never been faced with the particular question involved here. In Mallett v. Brannon, 246 Ark. 541, 439 S.W.2d 32, a personal injury action, we held that there was no abuse of discretion by the circuit court in denying a continuance to a defendant to permit the taking of the discovery deposition of a medical expert by whom the plaintiff had been examined on the eve of trial. We based our holding upon the adequacy of expert opinion which had already been obtained by the defendant from other sources together with that which was presented at the trial. Thus, we said, there was no urgent need for plaintiff's taking this discovery deposition. The question presented here appears in an entirely different frame, so the result we reached there is not controlling here. It is significant that we found that the defendant in Mallett was not caught empty-handed because he was able to present expert testimony contrary to that given by plaintiff's newly discovered expert. We recognized, however, that authorities support denial of discovery on an opposing party's expert witnesses only in the absence of extreme need by the examining party and his inability to obtain expert opinion on the same matter from other sources. These authorities indicate that an exception to the general rule exists under special circumstances deemed to constitute good cause for allowing such a pretrial examination. Appellant argues that the peculiar circumstances, absent in Mallett, prevail in his case, so that it comes within the exceptions noted. We agree.

One of the purposes of discovery procedures is to provide a device for ascertaining not only facts, but information as to the existence or whereabouts of facts relative to the basic issues between the parties. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). It is intended that these procedures make a trial more nearly a fair contest than a game of blindman's buff by requiring disclosure of basic issues and facts to the fullest practicable extent. United States v. Proctor & Gamble, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). The ascertainment of the sources from which evidence that may be used at trial might be obtained, such as the identity and location of persons having knowledge of relevant facts, is as much a purpose of discovery as any other. Ark.Stat.Ann. § 28--348(b) (Repl.1962); 8 Federal Practice and Procedure, Wright and Miller, 15, § 2001; Hickman v. Taylor, supra. This permits a litigant to secure the type of information which may lead to the production of other relevant evidence, or which will facilitate his preparation for trial. See Hickman v. Taylor, supra; 8 Federal Practice and Procedure 18, § 2001; Tumlison v. Harville, 237 Ark. 113, 372 S.W.2d 385; Allen v. Arkansas State Highway Commission, 247 Ark. 857, 448 S.W.2d 27.

We have recognized the importance of cross-examination of an adverse witness not only to test his credibility but also in an attempt to wring disclosures which might modify or explain his testimony on direct examination or bring it into a perspective which might present a view more favorable to the cross-examiner. Washington National Ins. Co. v. Meeks, 249 Ark. ---, 458 S.W.2d 135 (October 5, 1970). Planning effective cross-examination of adversary witnesses is one of a trial lawyer's most important responsibilities in preparation for trial, particularly when the witnesses are experts. See Allen v. Arkansas State Highway Commission, supra; United States v. 23.76 Acres, 32 F.R.D. 593, (D.C.Md.1963). Handicaps to attempting full cross-examination of an expert witness without pretrial discovery of his opinion with its supporting data and theoretical basis are discussed by Professor Friedenthal in 'Discovery and Use of an Adverse Party's Expert Information,' 14 Stanford Law Review 455, 485 et seq. The desirability of permitting discovery of adverse expert witnesses to enable advance preparation for effective cross-examination is well stated in the Advisory Committee's Notes to Proposed Amendments to Federal Rules of Civil Procedure Relating to Discovery at 48 F.R.D. 487. Depositions taken under the applicable statute may be used for the express purpose of contradicting or impeaching the testimony of the deponent at the trial of the case. Ark.Stat.Ann. § 28--348(d)(1).

The circuit court's limiting order was entered under the authority which is designed to prevent abuse of discovery processes by limiting the subject of inquiry and the scope of examination. Ark.Stat.Ann. § 28--352(b) (Repl.1962). In all matters pertaining to discovery the trial judge is necessarily vested with a wide latitude of discretion, and appellate courts will review orders in the exercise of this discretion only to determine whether there has been an abuse of discretion which is prejudicial to the party appealing. Under ordinary circumstances, any error in the exercise of this discretion will be harmless because of ultimate mootness or absence of prejudice. 8 Federal Practice and Procedure 29 et seq., § 2006. Yet, when there has been an undue limitation of pretrial discovery to the prejudice of substantial rights of appellant under the circumstances prevailing, a judgment will be reversed if subsequent developments have not rendered the question moot. Edgar v. Finley, 312 F.2d 533 (8th Cir. 1963); Roth v. Bird, 239 F.2d 257 (5th Cir. 1956); Goldman v. Checker Taxi Co., 325 F.2d 853 (7th Cir. 1963); Haney v. Woodward & Lothrop, Inc., 330 F.2d...