906 N.W.2d 87
N.D.2018Background
- State petitioned to civilly commit Joshua Gomez as a Sexually Dangerous Individual (SDI); district court ordered evaluations and Gomez, indigent, was appointed Dr. Stacey Benson as an independent examiner for his benefit.
- Multiple evaluators testified at the commitment hearing: the State’s court-ordered evaluator, Dr. Benson (court-appointed for Gomez), two private evaluators retained by Gomez, and Gomez himself.
- The State served a document production request seeking “any and all reports and tests used by any independent examiner.” Gomez produced the privately retained reports but did not produce Dr. Benson’s report, did not disclose information about her, and made no discovery objection.
- The district court ordered Dr. Benson’s report produced; the State filed it and then called Dr. Benson to testify. Gomez objected, invoking N.D.R.Civ.P. 26(b)(4)(B) (trial-prep experts not discoverable) and statutory provisions allowing a respondent an option to call or not call an independent examiner.
- The court ordered Dr. Benson to testify; she diagnosed antisocial personality disorder and high risk to reoffend. The court found Gomez to be an SDI and committed him to DHS custody. Gomez appealed, arguing the court erred in permitting Dr. Benson to testify.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gomez) | Held |
|---|---|---|---|
| Whether the State may call an expert appointed on behalf of an indigent respondent to testify | Dr. Benson’s report was filed and § 25-03.3-13 makes expert testimony/reports admissible; court may order testimony | Dr. Benson was appointed to prepare for trial on Gomez’s behalf and is protected from testimony/disclosure under N.D.R.Civ.P. 26(b)(4)(B) and respondent’s statutory option not to call the expert | Court treated court-appointed independent examiner like a respondent’s retained expert but found Gomez waived protections by failing to timely object or comply with Rule 26(b)(5); testimony admissible |
Key Cases Cited
- Matter of Hehn, 868 N.W.2d 551 (N.D. 2015) (rules of civil procedure apply to SDI commitments)
- Rittenour v. Gibson, 656 N.W.2d 691 (N.D. 2003) (admission of expert testimony reviewed for abuse of discretion)
- Vorachek v. Citizens State Bank of Lankin, 421 N.W.2d 45 (N.D. 1988) (failure to timely object to discovery demand waives objection)
- Matter of Loy, 862 N.W.2d 500 (N.D. 2015) (indigent respondent lacks right to choose independent expert appointed under § 25-03.3-12)
- Matter of G.R.H., 793 N.W.2d 460 (N.D. 2011) (statutory interpretation reviewed de novo)