Klabunde v. Stanley

¶1(dissenting). Defendants seek the name of plaintiff’s expert witness and a deposition revealing his investigations, theories and medical treatises relied upon and his conclusions.

¶2Directing attention to discovery of the expert’s determinations, GCR 1963, 302.2 provides that:

“Persons taking depositions unless for good cause otherwise shown as provided by subrules 306.2 and 306.4, shall be permitted to examine the deponent regarding any matter not privileged.”

¶3GCR 1963, 306.2 provides that:

“The court shall not order the production or inspection of any writing prepared by the adverse party, his attorney, … or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice.”

¶4Thus, GCR 1963, 306.2 precludes discovery of writings which are properly characterized as “work product,” Although the subrule is phrased in terms *496of a “writing,” its language can properly be extended to interrogation of the expert. Otherwise the purpose of the subrule is easily circumvented by merely inquiring as to the writings’ contents.

¶5Are the various determinations of a non-attending physician, who is retained by the plaintiff’s attorney to prepare the technical aspects of a medical malpractice suit and testify as an expert, within the qualified privilege of “work product”? This question has not been decided in Michigan. The Michigan Supreme Court has, however, set forth, by way of dictum, the guideline that documentary statements and reports of a physician retained by an attorney for purposes of litigation constitute the “work product” of the attorney and therefore are not generally subject to discovery. J. A. Utley Company v. Saginaw Circuit Judge (1964), 372 Mich 367, 373.1 The federal decisions generally treat the reports and statements of experts as “work product” in effect if not always in name. See 2A Barron and Holtzoff, Federal Practice and Procedure (Wright Ed, 1961), § 652.5, and cases cited therein.

“The very general import of the federal cases is that although pretrial deposition discovery of the expert opinion is not per se prohibited by the federal rules, and may, in a proper case, be authorized, such discovery ordinarily will not be permitted except in instances of extreme need thereof by the examining party and inability on his part to obtain expert opinion on the same matter from other sources.” 23 Am Jur 2d, Depositions and Discovery, § 199, p 556.

¶6*497This treatment of expert determination is proper.

“Considering the practical difficulty of disclosing the potential evidentiary parts of the report without impinging upon legitimate ‘work product,’ … the entire report of the expert, in this particular context, should he treated as covered by the ‘work product’ restriction.

“Such a construction of subrule 306.2 will not unduly hamper the right of discovery, since the ‘work product’ restriction, unlike the attorney-client privilege, is only a qualified restriction and the materials can be obtained upon a showing of unfair prejudice, undue hardship or injustice. These terms provide the flexibility needed to balance the need for discovery against the need for protection. To the extent that the request seeks material unavailable or not readily obtainable elsewhere, which is so crucial that justice requires its production, discovery can be ordered.” 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), 1967 Supp, pp 30, 31.

¶7Are defendants suffering a hardship which compels discovery despite the qualified privilege of “work product”? As suggested above such hardship exists where the factual subject matter is inaccessible to the party seeking discovery. Defendants here were the decedent’s physicians; the circumstances giving rise to the claim of malpractice are, consequently, more within their knowledge than plaintiff’s. Defendants’ contention that without discovery they cannot ascertain the standard of care which plaintiff would have imposed is not persuasive. The parties share the same position in urging the standard of care required by the medical and surgical practices in question. As defendants are not exposed to undue hardship by virtue of the privileged status of the information sought, it is not open to discovery.

¶8*498Defendants also seek the name of plaintiff’s expert witness to permit thorough investigation of his qualifications for impeachment purposes. G-CB 1963, 302 is qualified, as stated above, by subrule 306.2, which authorizes the trial court to prohibit deposition for good cause shown. The understandable reluctance of a physician to testify against a fellow'practitioner may assume the form of silence should publication of his name pending trial result in informal censure by those colleagues whose everyday cooperation is vital. As noted by Judge Hughes in his opinion below, “the obtaining of an expert witness to testify against a fellow practitioner is a matter of great difficulty and of considerable delicacy.”2 It must be remembered that it is incumbent upon the plaintiff to qualify his witness as an expert. See 2 Wigmore on Evidence (1940), § 560. Modern court procedure allows defendants ample time during trial to inquire into the expert’s background. The trial judge did not abuse his discretion in ruling that good cause had been established.

¶9The order denying the motion should be affirmed.