State ex rel. Washington University v. Gallagher

797 S.W.2d 726, 1990 Mo. App. LEXIS 1272, 1990 WL 120868
CourtMissouri Court of Appeals
DecidedAugust 21, 1990
DocketNo. 58139
StatusPublished

This text of 797 S.W.2d 726 (State ex rel. Washington University v. Gallagher) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Washington University v. Gallagher, 797 S.W.2d 726, 1990 Mo. App. LEXIS 1272, 1990 WL 120868 (Mo. Ct. App. 1990).

Opinion

GRIMM, Presiding Judge.

Relator Washington University seeks a writ of mandamus. The issue involves Rule 60, Physical and Mental Examination of Persons, as it relates to Rule 56, General Provisions Governing Discovery. We issued a preliminary writ, which we now make permanent.

I. Underlying Action

Plaintiff in the underlying action was a female student at Washington University. Her petition alleges she was sexually assaulted in a dormitory laundry room in February, 1986. The three defendants are the University, the owner of the dormitory who leased it to the University, and a janitorial company.

Pursuant to Rule 60.01(a), University sought an examination of plaintiff by a psychiatrist. The examination occurred March 2, 1990. Plaintiff promptly filed a motion to compel, seeking an order directing University to produce a copy of the psychiatrist’s report. Her motion also sought an order that “by requesting and receiving the report, or by taking the experts’ deposition, plaintiff does not waive her right to non-disclosure of consulting witnesses.”

On March 13, 1990, the motions were taken up. The court ordered the University to produce the report by March 15. The court further “ordered that by requesting and receiving the report, Plaintiff does not waive and is not required to reveal consult[728]*728ing experts who may have examined Plaintiff for mental/emotional conditions but are not intended to be called as a testifying expert.”

In compliance with respondent’s order, University furnished a copy of the psychiatrist’s report to plaintiff. University then sought this writ of mandamus. It asks that we order respondent to order plaintiff to divulge the identities and reports of all examiners who saw plaintiff for the same condition.

II. Rules 56 and 60

Mandamus “is appropriate to review a trial court’s sustention of discovery objections.” State ex rel. Southwestern Bell Publications v. Ryan, 754 S.W.2d 30, 32 (Mo.App.E.D.1988). And, disputes arising under Rule 60.01 may be resolved by extraordinary writs. See e.g., Brooks v. Brown, 744 S.W.2d 881 (Mo.App.E.D.1988).

Plaintiff in the underlying action, on respondent’s behalf, contends that Rule 56.01 “defines what may be obtained under all methods of discovery.” In support, she cites State ex rel. State Farm Mutual Auto. Ins. Co. v. Keet, 601 S.W.2d 669, 672 (Mo.App.S.D.1980). She argues that Rule 56.01(b)(4) permits only discovery of expert witnesses expected to be called at trial. Thus, she contends, she need not furnish reports from experts she does not intend to call as witnesses.

University, on the other hand, contends that respondent abused his discretion in granting the protective order. It argues that Rule 60.01 requires a plaintiff to produce reports of prior examinations when plaintiff requests a copy of a Rule 60.01 report and the report is delivered.

Rule 60.01(b)(1) provides:

If requested by the party against whom an order is made under Rule 60.-01(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition....

Rule 60.01(b)(2) provides:

By requesting and obtaining a report of the examination so ordered ..., the person examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.

We first observe that Rule 56.01 sets forth the general provisions governing discovery. Rule 56.01(b)(4) concerns experts and provides discovery of facts known and opinions of experts may be obtained in only two ways. First, through interrogatories, identification of the expert may be obtained. Second, through deposition, the facts and opinions of the expert may be obtained.

Plaintiff contends the “exclusive method of discovery of expert witnesses is found in Rule 56.01(b)(4).” She relies on State ex rel. Missouri Highway and Transportation Comm’n v. Anderson, 735 S.W.2d 350, 356 (Mo. banc 1987). In Anderson, our supreme court considered whether subpoenas duces tecum could be issued to two real estate appraisers. There, the court said: “if the matter sought to be discovered constitutes ‘facts known and opinions held by experts,’ Rule 56.01(b)(3) does not come into play at all and the exclusive methods of discovery of that matter are set forth in and limited by Rule 56.01(b)(4).” Id.

The holding in Anderson is correct in its context. There, the experts were not physicians, but real estate appraisers. Rule 56.01(b)(4) is the exclusive method for discovery of experts, except when Rule 60.01 is applicable. Since Anderson did not involve physical or mental examinations, Rule 60.01 was not applicable.

[729]*729Here, however, the discovery involves medical experts. Thus, the holding of Anderson is not applicable to the facts before us.

Rule 60.01 applies only to physical and mental examinations. The rule provides that those examinations are conducted by a physician. In situations where a party has a Rule 60.01 examination, Rule 60.01(b)(4) establishes a method for obtaining a report of that examination. The rule also imposes duties if a party requests such a report.

If we were to read Rule 60.01(b) as plaintiff suggests, Rule 60.01(b) would be meaningless. Under plaintiffs position that Rule 56.01 is the sole rule controlling disclosure of experts, University could obtain information from plaintiffs experts only by way of (1) interrogatories and (2) deposition. Yet, the very wording of Rule 60.-01(b) provides that the parties may request, and shall be furnished “a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition.” (emphasis added).

Here, plaintiff filed a “Motion to Compel Production” of the psychiatrist’s report. Although she did not identify that her motion was filed under Rule 60.01, that rule was the basis for her motion. We reach this conclusion on two bases. First, plaintiff filed a “Motion to Compel Production.” Such a motion would be inappropriate under Rule 56.01(b)(4). Under that rule, a party can proceed only by way of (1) interrogatories and (2) deposition.

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Related

State Ex Rel. State Farm Mutual Automobile Insurance Co. v. Keet
601 S.W.2d 669 (Missouri Court of Appeals, 1980)
Weir v. Simmons
233 F. Supp. 657 (D. Nebraska, 1964)
State Ex Rel. Missouri Highway & Transportation Commission v. Anderson
735 S.W.2d 350 (Supreme Court of Missouri, 1987)
Givan v. Adolf
723 S.W.2d 942 (Missouri Court of Appeals, 1987)
Brooks v. Brown
744 S.W.2d 881 (Missouri Court of Appeals, 1988)
State ex rel. Southwestern Bell Publications v. Ryan
754 S.W.2d 30 (Missouri Court of Appeals, 1988)

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Bluebook (online)
797 S.W.2d 726, 1990 Mo. App. LEXIS 1272, 1990 WL 120868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-washington-university-v-gallagher-moctapp-1990.