Background

• Jaymie and Paxton Quigley sued Dr. Travis Kemp (orthopedic surgeon), Dr. Christopher Tobe, and Saint Alphonsus for alleged postoperative injury to Mrs. Quigley’s foot following ankle surgery and discharge with a restrictive splint.
• Plaintiffs disclosed an out-of-area liability expert, Dr. Aprajita Nakra (podiatrist), who stated she had familiarized herself with the local standard of care by consulting a Boise-based physician assistant; the assistant was not named.
• Kemp served interrogatories seeking the identity of any medical provider consulted to familiarize a plaintiff’s expert with the local standard of care; plaintiffs refused, invoking I.R.C.P. 26(b)(4)(B) protection for non-testifying experts.
• The district court granted plaintiffs’ motion for a protective order and denied Kemp’s motion to compel, concluding the physician assistant was a non-testifying retained expert shielded by Rule 26(b)(4)(B).
• The Supreme Court granted permissive interlocutory appeal to decide whether Rule 26(b)(4)(B) bars disclosure of the identity of a non-testifying medical provider consulted to familiarize a testifying expert with the local standard of care.
• The Idaho Supreme Court vacated the district court’s order and remanded, holding the assistant’s identity is discoverable under I.R.C.P. 26(b)(1) and that 26(b)(4)(B) does not protect such consultants called to provide the foundation for a testifying expert’s opinions.

Issues

Key Cases Cited

• Vaught v. Dairyland Ins. Co., 131 Idaho 357 (discovery rulings reviewed for abuse of discretion)
• Doe v. Shoshone-Bannock Tribes, 159 Idaho 741 (standards for reviewing trial court’s exercise of discretion)
• Kirk v. Ford Motor Co., 141 Idaho 697 (framework for abuse-of-discretion review)
• Bybee v. Gorman, 157 Idaho 169 (affidavit omitting identity of anonymous consultant does not per se fail § 6-1013 foundation)
• Dunlap v. Garner, 127 Idaho 599 (credibility issues may arise where testifying expert claims consultation with local practitioner)