Klabunde v. Stanley

181 N.W.2d 918, 384 Mich. 276

• Court: Michigan Supreme Court
• Decided: December 30, 1970
• Docket: 4 October Term 1970, Docket Nos. 52,441, 52,442
• Status: Published

Opinions

T. E. Brennan, C. J.

The Case

Plaintiff commenced this action in March of 1962, seeking recovery of damages for alleged medical malpractice in treatment of her husband. In January of 1963, interrogatories were filed by defendants. which requested plaintiff to:

“III. State the name and address of every member of the medical profession that you have consulted or had conferences with, or your attorneys have had conferences with or consulted with as proposed expert witnesses to testify on your behalf as to the alleged negligence or malpractice of Defendants.

“IV. List each medical treatise or article that you or your attorneys have used in connection with the preparation of the Declaration in this cause or upon which you rely as a basis for the alleged negligence or malpractice of Defendants.

“V. State whether you or your attorneys have any written reports received from so-called expert witnesses that you have consulted or intend to use at a trial of this cause and attach copies of said reports hereto.”

Plaintiff’s answer to the interrogatories was filed on August 2, 1963:

“3. I do not have sufficient knowledge to answer interritory [sic] III with reference to my attorneys, hut as to myself, the answer is ‘none’;

“4. I do not have sufficient knowledge to answer interrogatory IV with reference to my attorneys, hut as to myself, the answer is none;

“5. I do not have sufficient knowledge to answer interrogatory V with reference to my attorneys, hut as to myself, the answer is I have ‘none’,”

At a pretrial conference held on February 27, 1964, defendants again requested the names and addresses of those experts who “will be relied upon to establish the grounds of negligence, malpractice and so forth set forth in the declaration.” Plaintiff resisted the pretrial request; a motion to compel answer to interrogatories or to furnish identity of expert witnesses was filed on July 2, 1964, pursuant to OCR 1963, 313.1, 313.2 and 302.2(1), and a hearing was scheduled for November 27, 1964. The hearing on the motion was adjourned at the request of defendants and was never rescheduled. On March 7, 1967, defendants filed a motion for discovery supported by affidavit which prayed for the following:

“(1) For an order requiring Plaintiffs to divulge and disclose the names of all expert witnesses that they intend to call at trial.

“(2) For an order limiting Plaintiffs in their right to call expert witnesses to those names listed and disclosed pursuant to Order of this Court.

“(3) That this Court set the day of March 18, 1967 for the taking of the deposition of the expert witness or witnesses that Plaintiffs intend to call at the time of trial.”

Plaintiff filed no answer to the motion but filed a post-hearing affidavit in opposition to the motion.

The trial court denied defendants’ motion on July 3, 1967, reasoning that the applicable court rules granted discretion to grant or deny the motion, and rejecting defendants’ contention that the motion should have been granted as a matter of right. An interlocutory appeal from the order denying discovery was taken; the Court of Appeals,¹ while affirming the trial court’s right of discretion, held that the order denying the requested discovery constituted an abuse of discretion. Pursuant to GCR 1963, 820.1(7), it entered an order requiring plaintiff to divulge the names and addrésses of the proposed expert witnesses, restricting plaintiff to the use at trial of those experts divulged, and authorizing defendants to depose such experts at defendants’ expense with respect to the qualifications and experience of the experts in the field of their testimony and whether such experts considered any facts not available to defendants in formulating their opinions.

Discussion

The issue presented is, very simply, whether the trial court abused its discretion by denying the defendants’ motion to depose plaintiff’s expert witnesses. We hold that the trial judge did not abuse his discretion for two reasons.

First, because the request came too late. Whatever rights any party may have to obtain the pretrial discovery, such rights are always subject to the trial judge’s right and duty to control the flow of litigation. Standing alone, the fact that the lawsuit was then five years old when the trial judge denied discovery satisfies us that there was not an abuse of discretion in its denial. GCR 1963, 301.7² providing that discovery may not be had after the pretrial conference without special motion for good cause shown, was not in effect when this case went through pretrial conferences in February of 1964 and again in 1965.³ Nonetheless, the principle that a judge is responsible for moving his docket is not a new one, and discretion was always lodged in trial judges to deny discovery when that process interfered with expeditious disposition of civil litigation.⁴

Second, there was no showing made before the trial judge as to any special need for discovery deposition to be taken for plaintiff’s experts. An expert is not a person “having knowledge of relevant facts” within the meaning of GCR 1963, 302.2.⁵ Neither is an expert a person whose opinion testimony can be secured by means of a subpoena under GCR 1963, 305.⁶ By definition, an expert is one who gives opinion testimony, and not testimony concerning “relevant facts.”⁷ He has a property right in his opinion and cannot be made to divulge it in answer to a subpoena.

We do not decide whether in a proper case the testimony of an expert may not be compelled in a pretrial discovery order, under penalty of prohibiting use of his testimony at trial; all we say here is that, under the circumstances of this case, denial of the requested discovery, sought as a matter of right, was not an abuse of the trial court’s discretion. Thus, any discussion of the work product privilege is not necessary to this decision.

The cause is reversed and remanded to circuit court with direction to schedule the case for trial within 30 days. Costs to plaintiff.

T. M. Kavanagh, Adams, and T. Gr. Kavanagh, JJ., concurred with T. E. Brennan, C. J.

1 16 Mich App 490 (1969).

2 GCR 1963, 301.7. “Time Limit for Discovery. No diseovery proceedings shall be conducted after completion of the pretrial conference provided by this rule or after waiver of pretrial in accordance with subrule 301.8 unless subsequently ordered by the court on written motion for good cause shown; provided, however, that physical examination of a party before trial may be ordered in the pretrial conference summary statement or in the order approving waiver of pretrial.”

3 Subrule 301.7 was added by amendment of July 19, 1966, to become effective January 1, 1967.

4 Significantly, former subrule 301.1(8), in effect at the time the pretrial conferences in the instant ease were held, required the court to make arrangements for completion of discovery proceedings at the pretrial conference. The motions for discovery under consideration here were made some two years after the second pretrial conference had been held.

5 GCB 1963, 302.2, provides in pertinent part: “(1) 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 which is admissible under the rules of evidence governing trials and relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of relevant facts.”

6 GCB 1963, 305.1, permits issuance of a subpoena to produce evidence “* * * related to any of the matters within the scope of the examination permitted by subrule 302.2, * * * .»

7 We have noted that expert opinion testimony is an exception carved out of the general rule which confines a witness to a relation of facts. DeGroot v. Winter (1933), 261 Mich 660.