Day on Torts

The Oklahoma Supreme Court has ruled that a plaintiff has a right to videotape a Rule 35 examination (often mistakenly referred to as an "independent medical exam"). 

The Court's conclusion:

"Our decision to allow an examinee to videotape a court-ordered independent examination was foreshadowed by our decision in McCullough v. Mathews, 1995 OK 90, ¶¶1-2, 918 P.2d 25. In McCullough we recognized that the broad language of 12 O.S. 2001 §32352allows the examinee to bring a third party representative to a court-ordered independent examination. We also determined that in addition to handwritten notes, audiotaping by the examinee, which was incorporated into the statute by the 2001 recodification of §3235,  would be allowed as a "condition" of the examination. While audio recording is capable of providing proof that the examination did not involve a malingering patient or a cursory examination, we now hold that a video recording may be a superior method of providing an impartial record of the examination. Accordingly, a party to a lawsuit who is required to submit to a medical examination pursuant to 12 O.S. 2001 §3235 is permitted to videotape the examination."  [Footnotes omitted.]

The case is Boswell v. Schultz, No 104840 (Ok. S.Ct. 12/12/07).  Read the opinion here.

In Tennessee, the Supreme Court has an advisory commission that recommends changes in the rules of civil procedure, evidence and appellate procedure.  Proposed changes are circulated for public comment and then the court sends them to the legislature for approval.  The legislature can only vote the rule changes up or down, it cannot modify them.

However, the legislature has persuaded the court to withdraw proposed changes to the rules on several occasions.  The most frequent subject of objection has been a proposed change to Rule 26 of the Tennessee Rules of Civil Procedure which would permit the discovery of the existence and amount of liability insurance coverage.  Insurance companies, primarily Tennessee Farmers Mutual Insurance Company, opposes disclosures of insurance information.

Now the Tennessee Supreme Court is going to get the opportunity to determine whether to permit the discovery of insurance information by way of case law.  In Thomas v. Oldfield, No. M2006-02767-COA-R9-CV, (Tenn. Ct. App. Nov. 7, 2007) the intermediate court rejected a plaintiff's effort to discover insurance information.   The court held as follows:

"Informed by the plain meaning of “subject matter of the pending action” and the spirit and purpose of the rule as originally enacted, we do not view the liability insurance coverage in this case as coming within its scope because the information bears no relation to the issues before  the trial court. When the party seeking discovery has failed to state a connection between the  liability insurance information and the preparation of its case for trial, and when none is  otherwise apparent, that information falls outside the scope of discovery. "

There is no reason, absent historical precedent, that the courts permit the legislature to have any say whatsoever on what rules of procedure are adopted for use in our courts. 

This case will put the court on the hot seat.  Will it follow the majority rule and permit discovery of this information?  Or will it yield to the legislature?  Time will tell.

Read the decision here.

Here is an interesting article written by Mark Berman that I found on Law.com.

The first few paragraphs:

"Electronic discovery, even more so than traditional paper discovery, offers the opportunity to burden unduly an opposing party with overbroad discovery requests, and three recent New York State court decisions have addressed over-reaching document requests seeking electronically stored information (ESI).

Responding to far-reaching requests for the production of e-mails and metadata, as well as electronic information contained on, among other things, hard drives, computer servers, backup tapes, voice mail and personal digital assistants (PDAs) can be very burdensome and extremely costly to the producing party.

Thus, as electronic discovery is becoming more prevalent in New York state practice, courts are taking note of these issues and are recognizing that certain situations do not justify the sometimes over-reaching requests that seek to obtain ESI, especially when requested from nonparties."

The Federal Court for the Middle District of Tennesse has a local rule on  expert witness that has been criticized for decades.   The rule provides as follows

"Expert witness disclosures shall be made timely in accordance with any order of the Court, or if none, in accordance with Fed. R. Civ. P. 26(a)(2). Expert witness disclosure statements shall not be supplemented after the applicable disclosure deadline, absent leave of Court. No expert witness shall testify beyond the scope of his or her expert witness disclosure statement. The Court may exclude the testimony of an expert witness, or order other sanctions provided by law, for violation of expert witness disclosure requirements or deadlines. ..."

Rule 39(c)(6)(d).  Not all of the judges enforced the Rule.

At trial, the Court permitted the expert to read his or her statement.  On cross, the expert had to stay within the scope of his or her statement.

The Sixth Circuit Court of Appeals has reversed a judgment because the Court enforced the rule.  In Thompson v. Doane Pet Care Co.,  No. 05-5377 (Dec. 15, 2006) the Court said that the local rule was inconsistent with the Federal Rules of Civil Procedure, including Rule 89(a)(2),  which provides that "[a] local rule imposing a requirement of form shall not be enforced in a manner that causes a party  to lose rights because of a nonwillful failure to comply with the requirement."

Is the local rule dead?  It should be.  It is one thing to enforce the Rule 26 disclosure rule.  It is another to require everything to to be written out - including definitions of words, etc. - and then require the expert to read from the report which does little more than bore a jury to death.

Read the entire opinion here.

The Federal Rules of Civil Procedure are being changed to make them more readable.  This post from Trial Ad Notes discusses the change and gives an example on how Rule 6 would be re-written.

All 250 pages of the proposed revisions may be found here.  The rules are still in the rule-making process and will not go into effect before December 1, 2007.

Defendant Farmers Insurance Exchange convinced the trial court that it should enter a protective order limiting Plaintiff's counsel ability to distribute documents produced in the litigation by the defendant and limiting Plaintiff's counsel's use of  Defendant's documents that Plaintiff's counsel obtained from other sources.  The later documents had been produced by the Defendant without a protective order in litigation in South Dakota.

The documents at issue were described as follows:  "The documents apparently contain information regarding 'incentive performance compensation plans' and the Colossus claims-handling system used by Farmers. Farmers explains in its brief that 'Colossus'is a proprietary computer tool created by Computer Sciences Corporation ('CSC'), and that Farmers’use of Colossus and related materials is limited by a licensing agreement and nondisclosure agreement with CSC. Such agreements with CSC are at least one reason why Farmers sought a protective order in this case."

The Colorado Supreme Court reversed.  It stated that "that the protective order entered by the district court is not authorized by C.R.C.P. 26(c) to the extent that it purports to place limits on the use of documents not acquired solely as a result of discovery in this case."  The Court analyzed the law interpreting its version of Rule 26 and said "that C.R.C.P. 26(c) applies only to documents or information obtained solely as a result of discovery in a pending case. It does not authorize restrictions on documents acquired outside of the discovery process in the pending case. "

The case is Jesse v. Farmer's Insurance Exchange, Case No. 05SA370 (Co. S. Ct. November 20, 2006).  Read it here.

Plaintiffs in Indiana had a $39 Million verdict reversed because of the failure to disclose the name of a witness.

Plaintiffs were injured in a car wreck with a  driver who was operating his vehicle under the influence of alcohol.  They sued the restaurant where the driver had been drinking alleging inter alia  that it served a visibly intoxicated patron (the driver)

Plaintiffs knew that a waitress from the restaurant thought the driver was visibly intoxicated but did not disclose her in answers to interrogatories.  The specific interrogatory at issue was as follows:

"State specifically each and every fact upon which you rely to support your allegation under I.C. § 7.1-5-10-15.5 that these Defendants, and each of them, provided alcoholic beverages to William J. Whitaker with actual knowledge that he was visibly intoxicated, and the names and addresses of those persons possessing knowledge of such facts."

The restaurant obviously knew the waitress and deposed her but she denied knowing that the driver was intoxicated.  Plaintiffs knew that when defendants called her at trial she would change her testimony on the stand and would say that she lied earlier in her deposition.  Plaintiffs did not supplement the interrogatory and disclose the name of the waitress.

The Indiana Supreme Court reversed the jury's verdict, saying:

"[W]e conclude that the plaintiffs' failure to identify [the waitress] as a person with knowledge of the relevant facts was a negligent if not intentional breach of its discovery obligations," the court said. "Subsequently, plaintiffs failed to supplement their response with the substance of her change in testimony. As these events unfolded, these omissions cascaded into a closing argument that materially misled the jury. The cumulative effect was misconduct prejudicing [the restaurant's] defense. …

"[T]he … persuasive point is that counsel for [the restaurant], based on [the waitress'] … deposition testimony, told the jury in opening statement that no witness establishing [the man's] visible intoxication would be produced and that [the waitress] would testify that he was not intoxicated. [The plaintiff's attorney] in closing pounded on the claimed 'embarrassing' conduct by [the restaurant's] counsel. [The waitress's] undisclosed change of story thus simultaneously destroyed not only [the defendant's] theory of the case but also its credibility with the jury. [The defendant] therefore credibly contends that its handling of the case would have been substantially different, and the damages, if not the liability, would have been materially different if plaintiff's counsel had discharged their obligations."

The case is  Outback Steakhouse v. Markley, No. 18S04-0602-CV-66. (Ind. S. Ct. Nov. 8, 2006.)  Read it here.

Recall that under Tennessee law the failure to supplement discovery results in a presumed sanction that the evidence will be excluded at trial, although lesser sanctions are available to the trial judge.  Rule 34A, T.R.C.P.

The United States Court of Appeals for the Sixth Circuit has ruled that all material given to testifying expert witnesses must be disclosed, including attorney opinion work product materials.

The circuits have been split on this issue.  In Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006),  the court clarified the law in the Sixth Circuit.

The precise holding:  "The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes. Therefore, we now join the "overwhelming majority" of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts." (Emphasis added.)  Don't try to argue that whatever information you gave to the expert wasn't considered by the expert and therefore is not discoverable; the word "given" was deliberately chosen by the court to void that argument.

Read the opinion here.  The discussion of the discovery issue begins on page 14.

 Thanks to the Sixth Circuit Blog for directing me to the decision.

The Supreme Court just issued its opinion in Alsip et al v. Johnson City Medical Center et al. More information on the opinion, holding that defense counsel may not participate in ex parte communications with a plaintiff's non--party treating physicians, is available over at our firm's medical malpractice blog. I am on the road right now, so commentary will follow later.

The Colorado Supreme Court has issued an opinion in Aloi v. Union Pacific R.R.

This is the opening paragraph of the opinion: "Petitioner Frank Aloi brought a personal injury action against Union Pacific Railroad (UP). Prior to trial, UP destroyed documents relevant to the litigation. As a sanction for spoliation of evidence, the trial court instructed the jury it could draw an inference that the evidence contained in the destroyed documents would have been unfavorable to UP. The trial court gave the adverse inference instruction three times, one time interrupting a crossexamination to provide the instruction. The jury returned a verdict for Aloi, and UP appealed. The court of appeals reversed the trial court's judgment. The Supreme Court granted certiorari."

The holding? "We hold that the trial court did not abuse its discretion by providing the jury with an adverse inference instruction as a sanction for the spoliation of evidence where it found that UP willfully destroyed relevant evidence, which otherwise naturally would have been introduced at trial. Second, we hold that the trial court did not abuse its discretion by repeating the adverse inference instruction because the trial court addressed appropriate objections and articulated the reasoning for its decision; nor did the trial court abuse its discretion by interrupting the crossexamination because it acted to remedy prejudice and as a result did not depart from the required impartiality so as to deny the defendant a fair trial."

The law in Tennessee on this issue is scarce; this opinion is a good place to start to convince a trial judge that an adverse inference instruction is warranted.

I was talking with some lawyers lately about an increasing problem of discovery abuse, particularly during depositions. Apparently some lawyers don't understand the rules or, if they do, they don't care about them.

Here is an interesting Order entered in a case that put the hammer down on a lawyer who the Court determined had not acted appropriately during depositions. Download file

Do you have any Orders you would like to share? Trial judges need to know that other trial judges have taken aggressive action to stop what they have determined to be inappropriate conduct and the best way to demonstrate that is a copy of an order. If you have such orders, fax or email them to me and I will post them so that other lawyers may utilize them.

The Supreme Court of Mississippi has granted summary judgment in favor of a physician when the plaintiff failed to timely respond to discovery seeking information about plaintiff's expert witnesses and did not timely file an expert affidavit opposing the summary judgment motion.

Plaintiff maintained that she was entitled to more time to get an affidavit from an expert.

From the opinion: "In his final judgment, the trial judge denied Stallworth's request for a continuance and granted the Doctors' summary judgment motion based on Stallworth's failure to substantiate the claims of medical negligence. The trial judge based his decision on the fact that in June of 2004, the Doctors served Stallworth with interrogatories to identify a medical expert, and Stallworth never filed sworn answers to those interrogatories. Instead, Stallworth served unsigned and unsworn interrogatory answers by facsimile and mail subsequent to the filings on summary judgment. The trial judge also based his decision on the fact that Stallworth acquired records of her condition and had notice of a possible claim as early as March of 2002, and retained counsel in April of 2002. The trial court also stated Stallworth's attorney's affidavit filed on October 22, 2004, was not compliant with the rules requesting the supplementation of the answers to the interrogatories and did not excuse Stallworth from having an expert to support her claim. Based on these facts, we cannot say the trial judge abused his discretion when he denied Stallworth's request for an additional thirty days to obtain a medical expert's affidavit. Rule 56(f) is not designed to protect litigants who are lazy or dilatory. We find Stallworth had ample time to locate a medical expert to assist with her claim. Therefore, we find the trial court's grant of summary judgment to the Doctors was proper." [Citations omitted.]

The case is Stallworth v. Sanford; read the opinion here.

To what extent may a party discover communications between an oppsoing party and its expert witness? The Supreme Court of Rhode Island recently addressed this issue in Crowe Countryside Realty Associates Co., LLC v. Novare Engineering Co. (For some reason I cannot get a good link to the opinion so you will have to track it down on the Rhode Island Supreme Court website, Westlaw or Lexis.)

Here is a handy summary of the 19-page opinion: "Without the ability to protect their own conclusions and theories from discovery, attorneys may not be able to fully and confidently prepare expert witnesses for their clients' trials. Permitting full disclosure
of everything revealed to expert witnesses might hamper the trial preparation process because attorneys would be reluctant to reveal their mental impressions, legal theories, trial tactics, and strategies to testifying experts. In our opinion, it is the disclosure of just such information that Rule 26(b)(3)'s dictation of the work-product privilege was intended to prevent. ... We therefore hold that the clear language in the second sentence of subdivision (b)(3) requires that a court protect all core or opinion work product of an attorney, whether or not shared with an expert. We believe that this command to courts, that they "shall protect" opinion work product, was intended to apply to all discovery requests of materials prepared in anticipation of litigation because of the admonition's location in the general portion of Rule 26 applying to all discovery. See Rule 26(b)(3)."

The opinion was released February 2, 2006.

One of the plaintiffs in this case (Kelly) was injured in a car wreck and had "soft tissue" injuries. The defense sought and was granted a Rule 35 examination by a doctor of its chosing. The doctor opined that the plaintiff "was magnifying her symptoms and neuropsychological testing/MMPI should be considered to assist in determining the level of symptom magnification."

The defense asked for a neuropsych evaluation and the court granted it over plaintiff's objection. Plaintiffs were permitted an interlocutory appeal.

Rule 35 examinations may be ordered for good cause shown when physical or mental condition has been put in controvery. The plaintiffs argued that the defendant "failed to affirmatively show that [the subject plaintiff] has put her mental condition in controversy and that [the defendant] has good cause for requesting her to undergo neuropsychological testing."

The Court of Appeals noted that "plaintiffs can be ordered to undergo mental examinations where the cases involve, in addition to a claim of emotional distress, one or more of the following: (1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff's offer of expert testimony to support a claim of emotional distress; and/or (5) plaintiff's concession that his or her mental condition is in controversy in the meaning of Rule 35."

The defendant argued that plaintiff's claim of emotional injury and the Rule 35 examiner's suggestion that she was a malinger was sufficient to trigger the "in controversy" requirement.

The Court said this: "We fail to see how the [plaintiffs'] Amended Complaint comprising the standard request for pain and suffering and emotional distress in a personal injury claim without more would put Kelly's mental condition in controversy, warranting a compelled neuropsychological examination under T.R. 35. The evidence indicates that the Stuffs do not allege a specific cause of action for emotional distress, nor do they intend to offer expert psychological testimony to address the general emotional component of Kelly's injury. Dr. Nukes' broad conclusion that Kelly is magnifying her symptoms because of the minimal physical and neurologic exam findings was reached after a one-hour exam. We do not find that Dr. Nukes' general conclusion without any specificity or other indications that Kelly has a severe mental disorder raises to a level that puts Kelly's mental condition in controversy."

And this: "Based on the evidence before us, we conclude that a mere routine allegation of damages for emotional distress does not place the party's mental condition in controversy. The plaintiff must assert or defendant must show a mental injury that exceeds the common emotional reaction to an injury or loss. To permit Simmons to compel a mental examination in the instant case because the Stuffs make a garden-variety claim of damages for emotional distress would open the door to involuntary mental examinations in virtually every soft tissue injury case. We do not believe T.R. 35 was intended to authorize sweeping probes into a plaintiff's psychological past merely because she has been injured and makes a claim for emotional distress damages without more. Accordingly, we find that the trial court's decision ordering Kelly to submit to neuropsychological testing to be against the facts and circumstances of the case."

Read the entire opinion here.

Here is an interesting article tilted "Understanding U.S. Electronic Discovery and "Best Practices" Therefore" written by Michael Kaminski. It will give you a good idea of the way major law firms are advising their clients on discovery and retention of electronic evidence.