The issue in this medical malpractice case is whether an erroneous discovery ruling by the trial court constituted prejudicial error, requiring reversal of a judgment in plaintiffs favor. For the reasons that follow, we conclude that the trial court’s ruling was not prejudicial and, hence, that reversal is not required.
Because a jury rendered a verdict in favor of Timothy Baker (plaintiff), we view the facts in the light most favorаble to him.
1
See Conway v. Pacific University,
On November 27,1990, in order to prevent the onset of pneumocystis pneumonia, which commonly infects AIDS patients, defendant prescribed Cotrim, a sulfa-based medication, for plaintiff. Defendant did not inform plaintiff that Cotrim contained sulfa and also did not inform him about the risks of taking Cotrim or about any alternative treatments, despite the fact that dеfendant’s chart indicated that plaintiff was allergic to sulfa.
Plaintiff had a severe allergic reaction to Cotrim and was hospitalized in early December 1990. On December 20, 1990, defendant advised plaintiff and members of plaintiffs family that plaintiff might have only a few weeks to live. Plaintiff then was transported to a hospital in California. After eight months of hospitalization and home nursing care, plaintiff recovered, for the most part, from his allergic reaction to Cotrim.
In November 1992, plaintiff filed this medical malpractice action against defendant, alleging that defendant negligently prescribed Cotrim when he knew or should have known about plaintiffs allergy to sulfa and also that defendant negligently failed to obtain plaintiffs informed consent before prescribing Cotrim. During pretrial discovery, defendant subpoenaed the reсords of Dr. Drucker, a psychologist who had conducted counseling sessions with plaintiff and his wife beginning in May 1990, and had continued to see plaintiff after the death of plaintiffs wife in August 1990. Plaintiff provided the records to defendant but deleted all references to Drucker’s counseling sessions with plaintiff before November 27, 1990. Defendant moved to compel production of that part of Drucker’s records, which the judge hearing pretrial motions denied. At the beginning of the trial in June 1993, the trial court judge 2 declined to revisit the discovery issue. After the close of evidence, the jury rendered a verdict for plaintiff and awarded him $104,109.65 in economic damages and $75,000 in noneconomic damages.
“[T]here is no basis for concluding one way or the other whether [the] denial [of discovery] might have affected [defendant’s] trial strategy or the result of the trial. Consequently, we cannot affirmativеly conclude that the error was unlikely to have affected the result and cannot hold that it was harmless.”Id. at 48.
The Court of Appeals then concluded that, upon remand, the case should be limited to the issue of nonecon-omic damages. Id. at 49. One judge dissented, arguing that, although the trial court had erred in denying defendant’s motion to compel production, the error was harmless and did not require reversal. Id. at 50-52 (De Muniz, J., dissenting).
Both partiеs petitioned this court for review. Plaintiff argued that the Court of Appeals erred in holding that the discovery ruling was prejudicial error. Defendant argued that the Court of Appeals erred in limiting the issues upon remand. We allowed both petitions and now reverse the decision of the Court of Appeals.
Upon review, plaintiff concedes that the trial court erred when it denied defendant’s motion to comрel production. 4 Consequently, the issues before us now are whether that error was prejudicial and, if so, whether the issues should be limited upon remand. As we shall explain, we conclude that the error was not prejudicial and, therefore, that the Court of Appeals erred when it reversed the judgment in plaintiffs favor. 5
At the outset, it is helpful to clarify the law governing our task in this case. ORS 19.125(2) provides:
“No judgment shall be reversed or modified except for error substantially affecting the rights of a party.” (Emphasis added.)
See Baden v. Sunset Fuel Co.,
A review of our case law illustrates that principle. In
U.S. National Bank v. Boge,
Similarly, this court has concluded that a trial court’s error is harmless when such error would not likely have affected the outcome of the case below. For example, in
Smith v. Fields Chevrolet,
“[W]e are satisfied that the error was not the kind of error that was likely tо affect the outcome of the litigation. See ORS 19.125. * * *
“We can find no reason for believing that this jury, which had spent the better part of two days listening to voluminous evidence * * *, was misled by the minor error in the instruction. The issue was clear. If the jury believed the plaintiffs evidence the defendants were liable.”239 Or at 237 .
See also Grover v. Sturgeon, 255
Or
578, 583,
In their arguments before this court, the parties disagree over how we should apply the test set forth in ORS 19.125(2) in this сase. Plaintiff contends that defendant already had possession before trial, through other sources, of essentially equivalent information as that contained in Drucker’s records and, consequently, that the denial of access to Drucker’s records could not substantially have affected defendant’s rights. Defendant, on the other hand, contends that the trial court’s ruling substantially affected his rights because he lоst the ability to review and analyze all discoverable evidence before making certain strategy decisions, which, in turn, affected his presentation of evidence at trial. As we shall explain, we agree with plaintiff.
In the context of this erroneous discovery ruling, the central issue is whether defendant, before trial, already knew or had possession of qualitatively the same information as that containеd in the denied discovery. If such information were known before trial through other sources, the denial of discovery could not substantially have affected defendant’s rights under ORS 19.125(2). That is so because, having already known or been in possession of qualitatively indistinguishable information, defendant could have chosen to pursue or utilize that information in formulating a theory of the case and a strategy of presenting evidence.
Such a focus upоn existing knowledge or possession of the information at issue is consistent with our case law. In
Woolsey v. Dunning,
Having established an analytical framework, we now turn to the specific facts of this case. Defendant makes two contentions supporting his conclusion that the denial of access to Drucker’s records substantially affected his rights, resulting in prejudicial error. First, he contends that Drucker’s records would have enabled him to mitigate the award of noneconomic damages in plaintiffs favor because the records demonstrаte that plaintiff already was in a fragile emotional state before defendant prescribed Cotrim on November 27, 1990, and, consequently, that defendant’s conduct could not have caused all plaintiffs emotional damages. Second, defendant contends that he also would have used Drucker’s records to challenge plaintiffs credibility.
We have reviewed Drucker’s records and agree with defendant that they indicate that plaintiff had emotional problems and was coping with several stressful issues before defendant prescribed Cotrim on November 27, 1990. The records therefore would have been helpful, as defendant contends, to mitigate plaintiffs claim of noneconomic damages.
However, after reviewing the entire trial record, which includes some information that was available to the parties before trial but that was not submitted to the jury in this case, we conclude that defendant already was aware of qualitatively the same information as that contained in Drucker’s records, which would have allowed him to pursue the theory of mitigation that he now advances upon review. That information either was possessed by or provided to defendant before trial through many sources, including plaintiffs hosрital records, plaintiffs deposition, and defendant’s own chart notes and deposition. Consequently, the denial of access to Drucker’s records did not substantially affect defendant’s right to prove all the facts necessary to support his theory of mitigation of noneconomic damages.
As to defendant’s contention concerning plaintiffs credibility, we agree that plaintiffs credibility was a central issue in the case, particularly plaintiffs recollection of his November 27, 1990, visit with defendant, when defendant prescribed Cotrim. We disagree with defendant, however, that the trial court’s discovery ruling substantially affected his rights in that regard.
Defendant first argues that, according to Drucker’s records, plaintiff was undergoing certain emotional stressors that may have affected his memory in late November 1990. In defendant’s view, had he seen Drucker’s records before trial, he would have challenged plaintiffs credibility by cross-examining plaintiff at his deposition “about the emotional issues that might have affected his memory of events on the date of that discussion” and also by presenting testimony at trial “that directly impacted the central liability issue in the case.” We reject defendant’s argument because, as discussed above, defendant already had possession of information concerning plaintiffs emotional problems and other similar issues before trial, despite his lack of access to Drucker’s records.
Defendant finally argues that he could have used some of the information contained in Drucker’s records to impeach plaintiffs credibility because the information demonstrated that plaintiff had or may have provided conflicting information to different people about various issues. We again conclude that, through sources including plaintiffs hospital records, plaintiffs deposition, and defendant’s own deposition, defendant already knew, before trial, of qualitatively the same information that he now contends could have been used to challenge plaintiff’s credibility. Consequently, we reject defendant’s impeаchment argument.
The decision of the Court of Appeals is reversed in part and affirmed in part. The judgment of the circuit courtis affirmed.
Notes
Timothy Baker died after trial, while this appeal was pending. His personal representative, Navajo Baker, has been substituted as a party.
In this opinion, we refer to the judge who presided over the trial as the “trial court judge.” The trial court judge was not the same judge who initially denied defendant’s pretrial motion to compel production of Drucker’s records. We refer to both judges collectively as the “trial court.”
ORCP 36 B(l) provides:
“For all forms of discovery, parties may inquire regarding any matter, not privileged, which is relevant to thе claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the informаtion sought appears reasonably calculated to lead to the discovery of admissible evidence.”
That issue is not before us upon review and, accordingly, we do not consider it.
Our disposition of the first issue makes it unnecessary to consider defendant’s petition for review, which concerns the second issue, that is, whether the issues should be limited upon remand in the light of
Maxwell v. Port. Terminal RR. Co.,
We note, however, that this court has developed a narrow exception to the general principle that a party’s rights ordinarily are not substantially аffected by an error that likely did not affect the outcome of the case. In
Highway Commission v. Walker et ux,
“There is no great likelihood that [excusal of the juror] would affect the result, given the assumption that jurors act reasonably ***[.] [B]ut since thеre is no way for a party deprived of his peremptory challenge to show prejudice, there is no sanction to enforce his right unless violation thereof is adjudged automatically prejudicial.”232 Or at 485 (emphasis added; internal quotation marks omitted).
As is clear from that text, this court established a prophylactic, per se rule specifically for the purpose of analyzing error pertaining to peremptory challenges. The holding of Highway Commission should not be interpreted to reach beyond that context.
Indeed, in many cаses, this court has focused upon only that wording and the issue of prejudice in making a determination under the statute.
See, e.g., McBee v. Knight,
We note that ORS 19.125(2) contemplates that an error below has affected the rights of a party. To rise to the level of prejudicial error, howеver, the error must have affected the rights of a party substantially.
The court in
Woolsey
also noted that the defendant could have subpoenaed either the pathologist who performed the autopsy or other physicians who had knowledge of the information contained in the slides, and also could have gained access to the slides by subpoenaing them for production at trial.