Kissel v. Nelson Packing Co.

87 Mich. App. 1 (1978) 273 N.W.2d 102

KISSEL
v.
NELSON PACKING CO.

Docket No. 78-101.

Michigan Court of Appeals.

Decided November 7, 1978.

Warner, Norcross & Judd (by Ernest M. Sharpe and Jeffrey O. Birkhold), for plaintiff.

White, Spaniola, Knudsen, Stariha & Potuznik, P.C. (by Darrel G. Brown), for defendants.

Before: DANHOF, C.J., and V.J. BRENNAN and R.H. CAMPBELL,^[*] JJ.

V.J. BRENNAN, J.

This is an interlocutory appeal by plaintiff, Ervan K. Kissel, from the lower court's order denying plaintiff's motion to allow further discovery by way of deposition of defendants' expert medical witness who had examined plaintiff, but was not to be called by defendants at trial.

The present appeal arose out of a negligence action brought by plaintiff for alleged injuries sustained on defendants' premises. On November 22, 1977, the plaintiff submitted to an independent medical examination by Dr. Douglas H. Giese as arranged by the defendants pursuant to GCR 1963, 311. Defendants then scheduled Dr. Giese's deposition for December 13, 1977, and on that day plaintiff was provided with a copy of the examination report. At the scheduled time for the deposition, the defendants' attorney met with Dr. Giese privately and then advised plaintiff that the doctor's deposition would not be taken.

Plaintiff then moved for an order allowing the deposition of Dr. Giese. The trial court on January 10, 1978, ruled that the doctor was the defendants' witness, and since the defendants did not intend to use the doctor's testimony, the plaintiff could neither depose nor subpoena him for trial. The plaintiff appeals the lower court's order.

Our inquiry focuses upon the following question: Whether a medical doctor employed by a party to examine the opposite party, but who is not to be called to testify by his employer, may be deposed or called as a witness by the opposite party?

It must be noted that Michigan has a strong historical commitment to a far-reaching open and effective discovery practice, and to that end the Court has repeatedly emphasized that discovery rules are to be liberally construed. Daniels v Allen Industries, Inc, 391 Mich. 398, 403; 216 NW2d 762 (1974); Hallett v Michigan Consolidated Gas Co, 298 Mich. 582; 299 N.W. 723 (1941).

GCR 1963, 302 provides in pertinent part:

".1 When depositions may be taken. After commencement of an action in any court, any party may take the testimony of any person, including a party, by deposition on oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes.

".2 Scope of examination.

"(1) Persons taking depositions unless for good cause otherwise shown as provided by sub-rules 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 * * *." (Emphasis added.)

The thrust of the defendants' argument on appeal is that the testimony of Dr. Giese represents privileged information, and the use of the testimony by the plaintiff is foreclosed by the work-product doctrine. We note that an attorney's impressions, mental reflections, conclusions and opinions are protected by the work-product restriction. Furthermore, the situation may arise where an attorney's consultation with an expert contributes to the attorney's conclusions and legal theories so as to encompass the consultation within the work-product restriction. However, the employment of Dr. Giese in the case at bar does not present this situation.

Normally, an expert is not a person "having knowledge of relevant facts" within the meaning of GCR 1963, 302.2. Klabunde v Stanley, 384 Mich. 276, 282; 181 NW2d 918 (1970). However, upon examining the plaintiff, Dr. Giese became a witness to the nature and extent of the plaintiff's injuries. Having first-hand knowledge, Dr. Giese could then describe what he had seen and give expert inferences therefrom. Such testimony does not fall within any work-product restriction, and therefore the trial court should have granted the plaintiff's motion.

Defendant cites Lindsay v Lipson, 367 Mich. 1; 116 NW2d 60 (1962), as suggestive of a different result. On its facts Lindsay is distinguishable from the case at bar. There the Court held that a physician's examination of the plaintiff as communicated to the plaintiff's attorney in preparation of the plaintiff's case was in essence a communication by the plaintiff to his attorney and was, therefore, protected by the attorney-client privilege. In the present case the medical interpretation of the plaintiff's injuries was communicated to the defendants' attorney in the preparation of the defendants' case and, therefore, no attorney-client privilege attached.

We feel that our decision allowing plaintiff to depose or subpoena Dr. Giese for trial comports with the enunciated purpose behind liberal discovery as follows:

"Properly employed, discovery conserves judicial resources — by facilitating settlement and by shortening the time it takes to try a case properly prepared for trial. Much of what is laboriously brought out during a trial could be covered by stipulation based on the results of pretrial discovery; by narrowing the disputed issues, this would increase the impact of the competing presentations on the points in dispute.

"It seems to us, having in mind the clogged dockets of our trial courts, that the interest in shortening the interval between the commencement of an action and adjudication requires not only that we allow litigants to require disclosure of the other side's case in advance of trial, but further that in some cases it is the duty of the trial court to insist that the parties employ these and ancillary techniques in an effort to expedite the trial process and to reduce the backlog." Roe v Cherry-Burrell Corp, 28 Mich. App. 42, 53; 184 NW2d 350 (1970).

The plaintiff has raised a collateral question as to whether the testimony of Dr. Giese may be bolstered by the fact that he was originally employed by the defendant. We answer in the negative.

Testimony as to the expert's original employment is not pertinent to any issue presented, and neither party should be bound by the rejected opinions of experts employed by him to assist in evaluating his case. Furthermore, the credibility of a witness generally may not be bolstered until attacked, McCormick, Evidence (2d ed), § 49, p 102, and we see no reason to deviate from the general rule.

Reversed and remanded with directions to the lower court to enter an order allowing the plaintiff to depose or subpoena Dr. Giese for trial.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.