A. G. v. Guitron
268 P.3d 589
Or.2011Background
- Plaintiff sought damages for psychological injuries; the action involved defendants Guitron and Lake Oswego Academy of Dance (dba Lake Oswego Academy).
- Defendants requested all written reports or notations of examinations related to injuries, including those from litigation-expert Green retained for the suit.
- Plaintiff produced treating-psychologist Puma’s reports but not Green’s reports.
- Green examined plaintiff for litigation purposes; plaintiff did not produce Green’s reports, triggering ORCP 44 D(2) exclusion consequences.
- Trial court excluded Green’s testimony under ORCP 44 D; verdicts favored defendants; Court of Appeals affirmed; this court granted review to interpret ORCP 44 C.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORCP 44 C require disclosure of litigation-expert reports? | ORCP 44 C covers treating-expert reports; ORCP 44 B handles litigation-expert reports; producing Green’s report would be duplicative. | ORCP 44 C governs all examinations relating to injuries; Green’s report is within ORCP 44 C. | Yes; ORCP 44 C encompasses all written reports of examinations relating to injuries, including litigation-experts. |
| Is ORCP 44 C ambiguous or limited by historical context to treating experts? | Context and legislative history suggest limiting ORCP 44 C to treating experts. | Textual language is unambiguous; broad interpretation is consistent with history showing an exchange of reports. | Unambiguous; words require production of all reports of examinations, including litigation-experts. |
| Does legislative history support narrowing ORCP 44 C to treating experts only? | The 1973 HB 2101 and later commentary indicated treating-expert focus. | Council history shows ORCP 44 C was designed to create broader disclosure beyond treating physicians. | Contextual and legislative history do not override the plain text; ORCP 44 C is broad. |
| What is the effect of ORCP 44 C on privileges (physician-patient, psychotherapist-patient, attorney-client)? | Disclosure under ORCP 44 C should be limited by privileges. | Legislature created and limited these privileges; ORCP 44 permits disclosure as an exception. | ORCP 44 C requires production despite privileges, as an exception created by the statute. |
Key Cases Cited
- Carnine v. Tibbets, 158 Or 21 (Or. 1937) (state court upheld examination power in personal injury actions)
- Nielson v. Brown, 232 Or 426 (Or. 1962) (predecessor on reports from examining defense physicians; work-product considerations)
- Stevens v. Czerniak, 336 Or 392 (Or. 2004) (statutory interpretation and discovery limits for expert testimony)
- Pamplin v. Victoria, 319 Or 429 (Or. 1994) (statutory interpretation methodology; context matters)
- PGE v. Bureau of Labor and Industries, 317 Or 606 (Or. 1993) (statutory interpretation methodology; contextual analysis aids text)
- Lake Oswego Review v. Steinkamp, 298 Or 607 (Or. 1985) (Council's legislative history used to interpret ORCP rules)
- Oregon v. Cahill, 208 Or 538 (Or. 1957) (precedent on evaluating truth in discovery and evidence)