Security Industries, Inc. v. Fickus

• Decision Date: 01 April 1968
• Docket Number: No. 928,928
• Citation: 439 P.2d 172
• Parties: SECURITY INDUSTRIES, INC., Petitioner, v. William Paul FICKUS et al., Respondents.
• Court: Alaska Supreme Court

Page 172

439 P.2d 172

SECURITY INDUSTRIES, INC., Petitioner, v. William Paul FICKUS et al., Respondents.

No. 928.

Supreme Court of Alaska.

April 1, 1968.

Robert C. Erwin and David H. Thorsness, of Hughes, Thorsness & Lowe, Anchorage, for petitioner.

Charles J. Clasby, of Collins & Clasby, Fairbanks, for respondent Robertshaw Controls Co.

Howard Staley, of Merdes, Schaible, Staley & DeLisio, Fairbanks, for respondents Jim Thompson Sales, Inc. and James A. Thompson, Jr.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

RABINOWITZ, Justice.

This case raises first-impression discovery questions concerning expert witnesses. In the complaint which was filed in the superior court, it was claimed that Harold G. Fickus, Jr., purchased from respondent Jim Thompson Sales, Inc. a 1963 Ford 3/4 Ton Pickup with a 1965 Security Industries traveller camper which, among other accessories, contained a furnace, oven, and gas lamp. It was further alleged that the camper unit was manufactured by petitioner Security Industries, Inc.; the furnace by respondent Utah Hydro Corporation; the oven by respondent Robertshaw Controls Company; and the gas lamp by respondent Springer Co., Inc. Through some defect in the camper unit itself, or in the abovementioned accessories, Harold Fickus, Jr. and Carol Ann Fickus died of asphyxiation and Dorothy Jean Fickus was injured by the same 'fumes or gases.' ¹ The subject causes of action for wrongful death, survival, and personal injuries were grounded upon theories of negligence (failure to warn of defects), breach of implied warranties (fitness for purposes intended), and breach of express warranties (in regard to materials and workmanship).

After issue was joined, petitioner Security Industries moved, pursuant to Civil Rule 34, for

production of all written reports furnished to and/or in the possession of all plaintiffs and defendants concerning any examination, testing, operation or observation of any of the foregoing of the camper unit in question or any part thereof including, but not limited to, the Springa-Lite L.P. light contained in the camper unit. ²

The superior court entered an order denying petitioner's discovery motion. ³ From the text of the superior court's order, it appears that the denial was based upon the court's belief that petitioner's showing of 'good cause' was insufficient and upon the additional ground that the reports were beyond the reach of discovery procedures because they were the work products of the attorneys involved. ⁴

Before discussing in detail the issues which appertain to the discoverability of reports of expert witnesses, we believe reference to two decisions of this court concerning our rules of discovery is necessary. In our view the discovery philosophy and principles we espoused in Miller v. Harpster ⁵ and Mathis v. Hilderbrand ⁶ control resolution of the questions raised in this review proceeding.

In Miller v. Harpster ⁷ we granted review of a Civil Rule 34 order which required a party and his attorney to produce for inspection all written statements of witnesses to the automobile collision there in question. At the superior court level, the motion to produce was opposed on the grounds that production of the written statements would violate the attorney work-product rule of Hickman v. Taylor; ⁸ would unfairly give opposing counsel the benefit of defense counsel's preparation; and was unwarranted since there was a lack of compliance by movant with Civil Rule 34's requirement of a showing of good cause.

In rejecting the unfairness contention which was advanced in the Miller case, we said in part that:

The question should not be decided on the basis of what is fair or unfair to petitioner's counsel, but rather on the basis of what is most likely to attain the objectives of the rule.

The broad policy of all of our rules permitting discovery is to eliminate surprise at the trial and to make it convenient for the parties to find and preserve all available evidence concerning the facts in issue, thereby encouraging the settlement or expeditious trial of litigation.

Counsel have been retained by their clients to bring about an early favorable end to the litigation. They do not acquire property rights in the contents of the written statements they obtain. Experience has proved that the ends of justice are more likely to be served by liberal rules of discovery requiring full disclosure of all unprivileged relevant matter. No purpose of the rule is to reward diligent counsel in a manner that could result in the suppression of knowledge of relevant facts. ⁹

Concerning the insufficiency of the showing of good cause in Miller, we said:

The formal showing of good cause may have left something to be desired. However, respondent's reasons for desiring to inspect the written statements of all witnesses to the collision, the subject of the suit, are so obvious that no extended showing of relevancy is required.

The requirement of a showing of good cause should not be given a strict or technical interpretation. At least where the request for production pertains only to written statements. * * * The sooner both parties are aware of the observations of the witnesses, the sooner the litigation can proceed along the usual lines toward settlement or trial. ¹⁰

Mathis v. Hilderbrand ¹¹ is also of significance to the resolution of the discovery questions raised in the case at bar. There the issue presented for review was whether an attending physician of the plaintiff in a personal injury action could be deposed prior to trial. From an analysis of the historical antecedents of the physicianpatient privilege, the precedents, and legal commentary regarding the privilege, it was concluded that the commencement of a personal injury action constituted a waiver of the physician-patient privilege and that it was therefore permissible to take the deposition of plaintiff's attending physician prior to trial. In reaching this conclusion, we said:

Courts commonly hold that the plaintiff waives the privilege when he voluntarily testifies concerning the injuries being sued upon. Increasingly it is being held that common sense dictates against enforcing the privilege until it has actually been waived during trial, as it almost invariably must be, and then in fairness being required to grant the defendant's request for a continuance to meet the new matter disclosed.

We are convinced that a rigid enforcement of the privilege under the facts of this case would serve no useful purpose and might result in injustice. We accordingly hold that the plaintiffs in this personal injury action waived the physician-patient privilege by the commencement of the action to the extent that attending physicians may be required to testify on pretrial deposition with respect to the injuries sued upon. ¹²

Tested against the criteria and discovery philosophy pronounced in the Mathis v. Hilderbrand and Miller v. Harpster cases, the trial court's denial of petitioner's discovery motion is erroneous.

Courts have developed three separate rationales for precluding discovery of reports of experts or the taking of their depositions prior to trial. We are not persuaded that any of the reasons advanced in the decisions thus far, either in and of themselves, or collectively, warrant holding discovery procedures inapplicable to experts or their reports. Upholding of the lower court's denial of discovery in the case at bar would be tantamount to repudiation of the Mathis and Miller decisions, and would negate what appears to us to be a logical extension of the rationale of these cases.

Miller v. Harpster ¹³ anticipated our present rejection of the work-product explanation which has been employed to deny discovery of expert witnesses' reports. In Hickman v. Taylor, ¹⁴ the Supreme Court of the United States first enunciated the 'work product' doctrine. The rationale for the work-product rule was formulated in the following manner:

In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. * * * This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-aptly though roughly termed by the Circuit Court of Appeals in this case as the 'work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. * * * The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. (Emphasis supplied.)

Several lower federal court decisions have extended the Hickman work-product doctrine to bar discovery of the contents of experts' reports which have been furnished to the party or to his attorney. ¹⁵ According to one authority, the reasoning underlying these decisions is that:

At the root of the more protective attitude evinced in this situation has been a long-standing inclination to consider an expert practically an assistant counsel and, therefore, to treat him for purposes of discovery similarly to an attorney. ¹⁶

On the other hand, extension of the work-product doctrine to experts has been criticized by commentators. One writer states:

Although most of the cases which have considered the application of the work product doctrine to experts have rejected such an extension, it has been applied to preclude discovery in a number of cases. Extension of this doctrine to experts without qualification appears to be unsound. Unlike an attorney's, client's or investigator's recollection of potential witnesses' conversations or even the statements obtained from potential witnesses, expert information in the form of opinions and conclusions and the...