Wiggin v. Apple Valley Medical Clinic, Ltd.
| Decision Date | 31 August 1990 |
| Docket Number | C9-89-2101,Nos. C7-89-2100,s. C7-89-2100 |
| Citation | 459 N.W.2d 918 |
| Parties | Richard WIGGIN, as Trustee for the heirs and next-of-kin of Kelly M. Wiggin, deceased, Respondent, v. APPLE VALLEY MEDICAL CLINIC, LTD., Petitioner, Appellant, Stanley A. Leonard, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
The trial court correctly applied Minn.R.Civ.P. 26.02(c) in ordering a corporate defendant to produce a statement by an employee whose alleged negligence may be imputed to the defendant but who is not a named party in the action.
Gregory P. Bulinski, Bassford, Heckt, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for appellant.
Reed K. Mackenzie, Mackenzie & Hallberg, Minneapolis, for Richard Wiggin, et al.
John R. McBride, Felhaber, Larson, Fenlon & Vogt, St. Paul, for Stanley A. Leonard.
Heard, considered and decided by the court en banc.
This medical malpractice action is before this court on a petition for further review of a court of appeals' decision denying appellant Apple Valley Medical Clinic's petition for a writ of prohibition seeking relief from a district court order compelling disclosure of a statement of its employee, Eric Anderson, M.D. We affirm the court of appeals.
Plaintiff Richard Wiggin's claim arises in part out of an alleged negligent medical treatment provided by Dr. Anderson in failing to diagnose accurately and treat Kelly M. Wiggin's asthma/allergy attack on the day she died, May 2, 1987.
Plaintiff commenced an action against Apple Valley Medical Clinic and Stanley A. Leonard, M.D., but did not join Dr. Anderson as a party. It is alleged that he cannot do so now because the action would be barred by the statute of limitations contained in Minn.Stat. Sec. 541.07(1) (1988) ().
The issue thus raised is whether the trial court abused its discretion in ruling that a statement by an employee whose alleged negligence may be imputed to the employer was a nonparty statement and thus discoverable without a showing of substantial need and undue hardship under Minn.R.Civ.P. 26.02(c).
Kelly Marie Wiggin died of acute bronchial asthma within hours after being discharged from the emergency room operated by appellant, Apple Valley Medical Clinic, Ltd. The clinic is a professional association owned by a number of physician/shareholders engaged in family practice. In addition to its regular clinic offices, the clinic owns and operates a 24-hour emergency care facility. At night and on weekends, this emergency room is staffed by resident physicians or other physicians hired by the clinic for that purpose.
On the day Kelly Wiggin died, the physician on duty was Dr. Eric Anderson. Dr. Anderson was an occasional, part-time employee. On the infrequent occasions when he worked at the clinic emergency room, he was paid an hourly wage. He was not an owner, shareholder, or managing partner of the clinic. Dr. Anderson examined Kelly Wiggin on the morning of her death, treated her and sent her home. A few hours later, she died. She was 25 years old and was survived by her husband and a 2-year-old daughter.
A wrongful death action was commenced against the clinic and Dr. Stanley Leonard, a pediatrician in St. Paul. There are allegations of negligence on occasions other than the day of Kelly Wiggin's death. However, plaintiff's claims of negligence do include a claim that Dr. Anderson was negligent in his treatment and discharge of Kelly Wiggin on the day she died.
In response to a written interrogatory, the clinic disclosed the existence of a statement taken from Dr. Anderson. The clinic objected to production of the statement "[o]n the ground that (the request) calls for the production of statements of parties, which are protected from discovery by Rule 26 * * *." Plaintiff then moved for an order requiring production. At the district court, the clinic opposed production on the grounds that it was a party statement because Dr. Anderson was an agent of defendant and a "managerial-type" employee, not merely a witness.
The clinic presented no evidence to the district court concerning the circumstances under which the statement was obtained and provided no evidence that Dr. Anderson was a "managerial-type" employee. Similarly, no attorney-client or work product privilege was asserted. The clinic relied on the language of Rule 26 that this was the statement of a party and not subject to production. The district court ordered the statement produced.
The court of appeals, by written order, denied petitions for discretionary review and prohibition.
Because the trial court has considerable discretion in granting or denying discovery requests in civil actions, we will not disturb a trial court's decision regarding discovery absent a clear abuse of discretion. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn.1987). Prohibition is appropriate where the trial court has ordered the production of information clearly not discoverable. Thermorama, Inc. v. Shiller, 271 Minn. 79, 83-84, 135 N.W.2d 43, 46 (1965).
The applicable rule governing the issues raised in this case is Minn.R.Civ.P. 26.02(c), which states:
Subject to the provisions of Rule 26.02(d) a party may obtain discovery of documents and tangible things otherwise discoverable pursuant to Rule 26.02(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a party or other person may obtain without the required showing a statement concerning the action or its subject matter previously made by that person who is not a party.
(Emphasis added.) This rule permits, without a showing of need and hardship, (1) a party or nonparty to obtain a copy of his or her own previous statement and (2) a party to obtain previous statements made by nonparties. 2 D. Herr & R. Haydock, Minnesota Practice Sec. 26.15 (1985); Minn.R.Civ.P. 26.02(c) advisory committee's note (1975).
Plaintiff seeks to obtain a statement of Dr. Anderson, an employee of the clinic who is not a named party to this action. The clinic argues that Rule 26.02(c) bars plaintiff from discovering this statement absent a showing of "substantial need" because the clinic may be held vicariously liable for Dr. Anderson's conduct. Plaintiff argues that the courts below correctly applied Rule 26.02(c) and this court's decision in Leer v. Chicago, Milwaukee, St. Paul & Pac. Ry. Co., 308 N.W.2d 305 (Minn.1981), to compel production of Dr. Anderson's statement.
We believe that our decision in Leer dictates our decision here. In Leer, a plaintiff sued a railroad in part for negligence in executing a railroad car switching movement. The plaintiff did not bring action against the other members of the switching crew, but sought to discover their statements pursuant to the rule allowing discovery of nonparty statements. Id. at 306. The court concluded: "[I]n the factual setting presented here corporate employees who are not named parties in the litigation are not 'parties' within the meaning of Minn.R.Civ.P. 26.02(3)." Id. at 307.
The clinic distinguishes Leer on the grounds that there, unlike here, the employees were not direct participants in conduct for which the employer was vicariously liable. The railroad, however, did argue that the employees were "parties" within the meaning of Rule 26.02(3) since it was their negligence the plaintiff sought to impute to the railroad. The court rejected this argument as well as the argument that "the employees could be named as parties at any time." 1 Leer, 308 N.W.2d at 307. In support of this conclusion, the court reasoned:
The meaning of the word "party," when used in the legal sense, is clear: "party" means only the named plaintiff or defendant. See Black's Law Dictionary 1010 (5th ed.1979). It would seem self-evident that a statement by an employee who is neither a named plaintiff nor a defendant is a statement of "a person who is not a party," and is therefore discoverable.
Id. This definition corresponds with definitions of "party" in other contexts. For example, this court has described a "party" as:
An actor who participates * * * as an active contestant on the merits for the determination of issues of law or fact, and who by the outcome of the proceeding will be bound and affected either favorably or...
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