Polum v. North Dakota Dist. Court

Citations: 450 N.W.2d 761; 1990 N.D. LEXIS 7; 1990 WL 3005Docket: Civ. No. 890149

Court: North Dakota Supreme Court; January 18, 1990; North Dakota; State Supreme Court

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Jeffrey Polum petitioned the North Dakota Supreme Court for a supervisory writ to vacate a District Court order compelling him to disclose the identity and reports of expert witnesses retained in a prior medical malpractice case against doctors Hassan and Lilly. Polum had settled that case and subsequently sued Rod Wulff for negligence related to injuries sustained while water skiing. Wulff sought to discover expert information from the malpractice action, which Polum objected to. The court's order to compel disclosure prompted Polum's petition.

The Supreme Court first assessed its jurisdiction to issue a supervisory writ, noting such jurisdiction is discretionary and typically employed to correct errors when no alternative remedies exist. The court determined that Polum had no viable options other than seeking the writ, as the order compelling answers was not appealable and failure to comply could result in contempt.

Polum's arguments rested on the assertion that the expert's identity and report fell under the work-product doctrine, thus being non-discoverable per Rule 26(b)(3), N.D.R.Civ.P. The court indicated that its Rule 26 mirrors the federal rule and referenced federal case law, noting that amendments to the federal rule made it clear that expert information is governed by Rule 26(b)(4), rather than being shielded by the work-product doctrine.

The work-product doctrine does not apply to expert information as established by several federal and state court cases. Specifically, under Rule 26(b)(4) of the North Dakota Rules of Civil Procedure, a party may discover facts or opinions from an expert retained for litigation only if the expert is not expected to testify at trial, and under exceptional circumstances where obtaining such information through other means is impracticable. The key issue arises regarding whether an expert retained in prior litigation, sharing the same factual background and legal issues, qualifies as retained in anticipation of litigation for the current case. Limited case law addresses this, with the In re Agent Orange Product Liability Litigation case being the most relevant. In that case, experts retained for a class action settlement were sought for deposition by plaintiffs who opted out, and it was determined that Rule 26(b)(4)(B) governed their discovery. The involvement of similar parties and issues in the current multidistrict litigation suggests that Rule 26(b)(4) could extend to experts retained for trial preparation in related cases. Comparably, in Hermsdorfer v. American Motors Corp., the court reaffirmed that Rule 26(b)(4)(B) applies if the information sought was specifically obtained for preparing for the litigation in question.

The application of Rule 26(b)(4)(B) allows for discovery of expert information obtained in preparation for multiple lawsuits, whether filed or anticipated. This rule recognizes the necessity of accessing expert opinions that are directly related to the litigation at hand, particularly when the expert was retained for cases of similar legal and factual nature. In Hermsdorfer v. American Motors Corp. and In re Sinking of Barge Ranger I, it was established that the relevant test is whether the expert and their information were acquired due to the prospect of litigation. However, a different outcome was observed in American Buildings Co. v. Kokomo Grain Co. Inc., where the court ruled that the rule does not apply to experts retained for prior litigation unrelated to the current case.

In the present scenario, an expert was engaged to provide an opinion on malpractice in a case involving Polum, who subsequently sued Wulff for negligence, asserting that Wulff's injuries stemmed from the prior malpractice. The court concluded that the discovery of this expert falls under Rule 26(b)(4)(B) due to the close relationship of the cases. The historical context of Rule 26 emphasizes addressing concerns of "unfairness," which arises when one party benefits from another's expert preparation without incurring the associated costs. The advisory committee notes and cases such as Ager v. Jane C. Stormont Hospital outline that the rule aims to prevent one party from exploiting another's resources, ensuring that access to an adversary's expert does not allow for unfair advantages or avoidance of compensation for expert services.

Rule 26(b)(4)(B) aims to ensure fairness by limiting access to an opposing party's trial preparation efforts. Allowing discovery of Polum's expert by Wulff without such restrictions would unfairly leverage Polum's resources and preparation. The rule governs the discovery of Polum's expert, and although Wulff argues for discovery based on exceptional circumstances, he fails to provide evidence supporting this claim. There is no indication that Polum's expert is unique or possesses extraordinary qualifications that would preclude Wulff from obtaining similar opinions from other experts. Therefore, under the circumstances, Rule 26(b)(4)(B) prevents such discovery.

Wulff also contends that he should be able to discover the identity of the expert without proving exceptional circumstances. However, there is a division of opinion on whether the identity of a retained expert must meet this standard. The Tenth Circuit has determined that exceptional circumstances are necessary to discover a retained expert's identity, emphasizing that Rule 26(b)(4)(B) applies solely to experts specifically retained for trial preparation, excluding informal consultations. A proper showing to compel the disclosure of such experts aligns with the requirement for exceptional circumstances, as revealing their identities could undermine the protective intent of the rule and lead to the disclosure of otherwise non-discoverable information. Additionally, there is a risk that a party might improperly suggest to a jury that the opposing party is hiding facts by not calling certain retained experts.

Disclosure of the identities of medical consultative experts in medical malpractice cases is likely to reduce the number of honest opinions and deter consultants from engaging with plaintiff's counsel. Due to the scarcity of consultative experts and healthcare providers' reluctance to assist plaintiffs, discovery of such identities should generally be denied, except under special circumstances. To support valid claims and dismiss baseless ones, practices that hinder access to informed opinions should not be allowed. The identity of an expert retained for litigation preparation but not expected to testify is not discoverable unless exceptional circumstances are demonstrated, as per Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure. The burden of proof for exceptional circumstances lies with the party seeking disclosure. The court concurs with the rationale from the case Ager and orders the district court to vacate its previous order compelling the disclosure of Polum's medical expert and related reports. Additionally, references to Rule 35 clarify the process for discovering reports from court-ordered examinations, emphasizing the necessity for good cause and proper notifications.

A court may order a party to deliver a report, and if a physician fails to comply, their testimony may be excluded at trial. By obtaining the ordered report or the examiner's deposition, the examined party waives any privilege regarding testimony from other individuals who have examined them concerning the same condition. This applies to examinations agreed upon by the parties unless stated otherwise in the agreement. The subdivision does not prevent the discovery of reports or depositions of examining physicians per other rules. In this case, it was noted that other experts were consulted regarding the malpractice action, but the trial court did not address their discoverability, and this issue will not be considered.