Bryant v. Cary (In re Cary)

167 B.R. 163, 1994 Bankr. LEXIS 618
CourtDistrict Court, W.D. Missouri
DecidedApril 29, 1994
DocketBankruptcy No. 93-20794-C; Adv. No. 94-2002-C
StatusPublished
Cited by1 cases

This text of 167 B.R. 163 (Bryant v. Cary (In re Cary)) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. Cary (In re Cary), 167 B.R. 163, 1994 Bankr. LEXIS 618 (W.D. Mo. 1994).

Opinion

ORDER DENYING MOTION TO QUASH SUBPOENA

FRANK W. KOGER, Chief Judge.

This matter comes before the Court on the motion of Richard N. Gowdy, Ph.D. (Dr. Gowdy) to Quash Subpoena. The Court held a hearing on shortened notice on March 30, 1994. The Court heard statements of counsel and legal arguments at that time. Having duly considered the positions of the parties, the Court makes the following Findings of Fact and Conclusions of Law as required by Fed.R.Bankr.P. 7052:

Facts

Roy Lee Cary (the Debtor) filed a Chapter 7 bankruptcy petition with the Court on October 29, 1993. The Circuit Court of Moni-teau County Missouri entered a default judgment against the Debtor on September 13, 1993 in the amount of $43,050.22 plus interest and costs in favor of Jim Bryant (Bryant). See Bryant v. Cary, Case No. CV793-43CC (Sept. 13, 1993). The judgment is allegedly based upon the Debtor’s obtaining money by false pretenses, false representation or fraud. Bryant filed an adversary action in bankruptcy to determine the dischargeability of the debt pursuant to 11 U.S.C. § 523(a)(2)(A).

The Debtor has denied all the allegations of fraud and misconduct alleged by Bryant. However, Debtor claims a loss of memory, and the Debtor cannot remember with any accuracy the events alleged to have occurred in the Bryant complaint.

Dr. Gowdy is an employee of the Missouri Dept, of Mental Health/Mid-Missouri Mental [166]*166Health Center. Judge Bryson of the Circuit Court of Boone County ordered Dr. Gowdy to conduct an involuntary mental examination of the Debtor as a part of a criminal proceeding. Dr. Gowdy did, in fact, examine the Debtor in August of 1992. The Court subpoenaed Dr. Gowdy on the Debtor’s behalf to testify as an expert witness as to certain opinions and facts gained from that examination. The Debtor has offered to pay Dr. Gowdy an expert witness fee as well as costs and expenses as authorized by Fed. R.Civ.P. 45(b).

Dr. Gowdy has moved to quash this subpoena. Dr. Gowdy’s arguments can be summarized as follows:

1. The Debtor has not demonstrated a substantial need for the testimony.
2. Testimony could be obtained from another expert who could be retained expressly for that purpose.
3. Missouri State policy prohibits the state’s employees from testifying in civil matters.
4. Compelling Dr. Gowdy to testify deprives him of his intellectual property rights and the right to compensation for his services.
5. Compelling a state employed expert deprives the State of Dr. Gowdy’s time and expertise to the State’s detriment.

For the reasons discussed below, the Court finds that Dr. Gowdy’s Motion to Quash Subpoena should be denied.

Discussion

The bankruptcy court derives its subpoena power from Fed.R.Civ.P. 30(b)(6) made applicable in adversary proceedings by Fed.R.Bankr.P. 7030. A trial court has broad discretion in handling discovery matters under the Federal Rules. Cook v. Kartridg Pak Co., 840 F.2d 602, 604 (8th Cir. 1988). Discovery rules are to be broadly and liberally construed in order to fulfill discovery’s purpose of providing both parties with information essential to the proper litigation of all relevant facts, to eliminate surprise and to promote settlement. Weiss v. Amoco Oil Co., 142 F.R.D. 311, 313 (S.D.Iowa 1992) citing United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). A court has the power to compel expert witness testimony. Kaufman v. Edelstein, 539 F.2d 811, 820-21 (2d Cir.1976); Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir.1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2753, 37 L.Ed.2d 156 (1973); Dean v. Veterans Admin., Reg. Office, 151 F.R.D. 83 (N.D.Ohio 1993); In re Snyder, 115 F.R.D. 211, 212 (D.Ariz.1987); Grumman Aerospace Corp. v. Titanium Metals Corp., 91 F.R.D. 84, 90 (E.D.N.Y. 1981) Tahoe Ins. Co. v. Morrison-Knudsen Co., 84 F.R.D. 362, 364 (D.Idaho 1979). In Otte, the Second Circuit stated:

[t]he weight of authority holds that, although it is not the usual practice, a court does have the power to subpoena an expert witness and, though it cannot require him to conduct any examinations or experiments to prepare himself for trial, it can require him to state whatever opinions he may have previously formed.

474 F.2d at 536 (citations omitted). The subpoenaing party need not show the “necessity” of the compelled testimony before the subpoena is issued. Kaufman, 539 F.2d at 821.

The power to compel an expert witness to testify is not absolute. The witness may claim a privilege or other good cause as to why the witness should not be compelled to testify. Id.; see also Dean v. Veterans Admin., 151 F.R.D. at 85. However, the federal courts do not recognize any general privilege for expert witnesses that exempts them from a bankruptcy court’s subpoena power. Id. at 819-20.

No privilege has been claimed. Therefore, Dr. Gowdy must show good cause why his testimony should not be given. The first reason offered by Dr. Gowdy is that the Debtor has not demonstrated a substantial need for Dr. Gowdy’s testimony. As discussed above, a demonstration of necessity is not required before a party may subpoena an expert. The expert witness must demonstrate good cause why he should not testify. Moreover, even if the Court wished to impose such additional requirement, the Debtor has met that requirement. The Debtor claims memory loss for the relevant time [167]*167periods involved in this dispute. Dr. Gow-dy’s contemporaneous psychological examination is perhaps the only objective testimony of the Debtor’s knowledge and state of mind during that time period. Compare Kaufman, 539 F.2d at 821 (“A substantial part of the testimony which the Government here seeks from petitioners is testimony no one else can give.”) Thus, the Debtor has demonstrated a substantial need for Dr. Gowdy’s testimony.

Dr. Gowdy asks the Court to excuse him from testifying on the grounds that another similarly qualified expert witness could be retained in his place. Because of the Debtor’s claimed memory loss, Dr. Gowdy is the only source of the information sought by the subpoena. Retention of another expert therefore is not feasible, nor does this Court view it as good cause.

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