425 P.3d 412
Or.2018Background
- Plaintiff sued Radiology Specialists alleging two radiologists misread her 2013 imaging, causing understaging of breast cancer; plaintiff deposed those radiologists in 2016.
- Plaintiff obtained the 2013 reports and imaging; at depositions the radiologists could not recall reviewing the images in 2013.
- Plaintiff asked the radiologists, while showing the same images, what they now saw; defense counsel instructed them not to answer, arguing the questions sought impermissible expert testimony and implicated attorney-client privilege.
- Trial court denied plaintiff’s motion to compel; plaintiff sought mandamus from the Oregon Supreme Court and obtained relief there.
- The Supreme Court held the questions were relevant under ORCP 36 B, did not constitute barred expert discovery, and did not invade the attorney-client privilege; a peremptory writ of mandamus issued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of discovery / whether plaintiff may depose radiologists about current readings of images they reviewed in 2013 | ORCP 36 B permits inquiry into any nonprivileged, relevant matter; plaintiff may ask what the radiologists now see because it bears on what they perceived and knew in 2013 | Oregon law generally bars expert discovery (per Stevens); allowing current readings effectively seeks expert testimony and is prohibited | Plaintiff may ask the radiologists about what they now see in the 2013 images; such questions are relevant and within ORCP 36 B when directed at participants in the events at issue |
| Distinction between "participating" experts and nonparticipating/retained experts | Questions about present observations of images are permissible from participating experts because those observations inform what they perceived and knew when they participated | Current readings are hindsight and would be informed by subsequent knowledge and litigation context, so they are irrelevant or inadmissible | The fact witnesses’ present perceptions of the same tangible images are reasonably calculated to lead to admissible evidence about their 2013 perceptions and actions; hindsight does not justify a deposition instruction not to answer |
| Attorney-client privilege / whether answers would disclose privileged communications | Plaintiff is not asking for lawyer-client communications; she seeks the witnesses’ present observations of images | Radiologists’ current answers would be "affected by" communications with defense counsel, so responses implicate privileged information | OEC 503 protects confidential communications, but does not bar testimonial answers about what a witness now sees in existing images when the questioning does not require disclosure of privileged communications |
| Application of Stevens and Gwin (Oregon precedent) | Gwin allows depositions of witnesses who participated in events; Stevens should not be read to bar discovery from participating experts about their observations | Stevens established a legislative choice to bar expert discovery; Gwin allows only factual questions about personal knowledge, not new expert opinion | Court harmonized the cases: participating experts may be deposed about matters relating to their direct involvement (including present observations of the same tangible items) but not about matters in which they did not participate or about nonparticipating experts' opinions |
Key Cases Cited
- Stevens v. Czerniak, 336 Or. 392 (explaining legislative history that led Oregon to limit expert discovery)
- Gwin v. Lynn, 344 Or. 65 (permitting deposition of a witness about factual matters within the witness's personal knowledge despite expert status)
- Foxton v. Woodmansee, 236 Or. 271 (standard that physicians are judged by facts existing when they acted)
- Anderson v. Florence, 288 Minn. 351 (holding treating physician may be questioned in discovery even if questions call for medical opinion)