Workman v. Public Service Co. of New Hampshire, 6642

• Decision Date: 31 July 1973
• Docket Number: No. 6642,6642
• Citation: 113 N.H. 422,308 A.2d 540
• Parties: Dorothy WORKMAN, Administratrix of the Estate of Gary Workman, Sr. v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE. Frank J. LAFOND v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE. Eddella LAFOND v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE. Dorothy WORKMAN v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE. Dorothy WORKMAN v. WM. T. DONOVAN CO.
• Court: New Hampshire Supreme Court

Page 540

308 A.2d 540

113 N.H. 422

Dorothy WORKMAN, Administratrix of the Estate of Gary Workman, Sr. v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE.

Frank J. LAFOND v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE.

Eddella LAFOND v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE.

Dorothy WORKMAN v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE.

Dorothy WORKMAN v. WM. T. DONOVAN CO.

No. 6642.

Supreme Court of New Hampshire.

July 31, 1973.

Upton, Sanders & Upton and Robert Upton, II, Concord, for Dorothy Workman and Frank J. Lafond.

Wiggin, Nourie, Sundeen, Pingree & Bigg and Kurt M. Swenson, Manchester, for Wm. T. Donovan Co.

Sulloway, Hollis, Godfrey & Soden and Martin L. Gross, Concord, for Public Service Co. of New Hampshire.

KENISON, Chief Justice.

The issue in this discovery case is whether petitioners may discover defendant's expert reports. The reports pertain to expert investigations of the conditions at defendant's generating plant at Bow, New Hampshire where an explosion or fire occurred on June 1, 1970 injuring one of the plaintiffs and killing plaintiff's decedent, Gary Workman. In September 1972 plaintiffs Workman and Lafond filed a motion for discovery in superior court seeking to require the defendant and its counsel to file with the clerk of court all reports of any third parties prepared for either the defendant or its counsel covering any investigation of the incident. Shortly thereafter, third-party defendant Wm. T. Donovan Co. filed a similar motion. Public Service Company entered timely objections to the motions with a request for hearing. After hearing, the Trial Court (Perkins, J.) granted the motions, subject to Public Service Company's exception. The superior court allowed and transferred defendant's bill of exceptions to this court.

Plaintiff's case rests substantially upon their claim that the explosion or conflagration causing the death and injuries was caused by an accumulation of coal gas or other explosive or combustible material in one or more silos located beneath the tripper room where Workman and Lafond were working at the time of the fire or explosion. Within several days after the incident, an engineer retained by Public Service Company began an extensive investigation of the occurrence. In support of their discovery motions, petitioners claim that the engineer's reports are vital to their case because the conditions in the silos and tripper room obtaining shortly after the explosion bear directly on the cause of the fire or explosion and are impossible of duplication. Public Service Company claims that the reports are not discoverable because they contain the work product of their attorney.

We recently set forth the principles governing the discoverability of expert information in Willett v. General Electric Co., 113 N.H. --, 306 A.2d 789 (1973). That case held that expert information and opinions are discoverable as a matter of course if the expert is expected to testify at trial. Id. If he is not expected to testify, his information and opinions are still discoverable so long as a showing is made that 'relevant facts are unobtainable by other means, or are obtainable only under such conditions of hardship as would tend unfairly to prejudice the party seeking discovery . . ..' Id.; Riddle Spring Realty Co. v. State, 107 N.H. 271, 275, 220 A.2d 751, 756 (1966); Muder v. Bentley, 109 N.H. 71, 72, 242 A.2d 396 (1968).

While the parties in this case did not have the opportunity of considering the Willett decision at the time the instant case was argued in this court, we think the principles therein set forth should control the discovery of the actual expert reports as well as the information contained therein. Security Industries, Inc. v. Fickus, 439 P.2d 172 (Alaska 1968); see Md. Rule of Civ.Proc. 410 c 2. Whatever increase in work product disclosure will result from allowing discovery of the report itself in...