Lead Opinion
The issue presented in this action is whether a trial court has discretion to relieve an unwilling expert witness, who is a stranger to the litigation, from providing opinion testimony during a pretrial discovery deposition. Since we determine a litigant does not have an absolute right to compel an unwilling expert to give an opinion on facts outside the expert’s personal knowledge, we hold that a trial court has discretion to either relieve or compel such testimony depending on the circumstances presented in a particular case.
Dr. Mason’s involvement in the present dispute had its origin in a medical malpractice action currently pending in Davis County, Iowa. Plaintiff in that action, Vicki Mitchell (executor of her husband’s estate) alleged that the decedent, Ronald Mitchell, died as a result of negligence by three doctors and three nurses in their performance of gastric by-pass surgery. During the deposition of one of the defendant doctors, (Dr. Schiebe), Mitchell learned that the doctor had provided factual information about the surgery and its subsequent complications to the National Bariatric Surgery Registry at the University of Iowa Hospitals and Clinics. Dr. Mason is the director of the registry and a professor of surgery at the University of Iowa College of Medicine.
After learning of this exchange between the two doctors, Mitchell subpoenaed Dr. Mason to take his deposition in Johnson County. Although Mason appeared at the deposition, he refused to answer any questions concerning the information he had received from Dr. Schiebe. He felt the information was confidential since it was acquired in his capacity as director of the registry. Subsequently, Mitchell sought an order from the district court in Johnson County compelling Dr. Mason to answer not only questions regarding the factual information Dr. Mason had acquired, but also to give his expert opinion on the medical care received by the decedent in malpractice action. The district court, Judge Paul J. Kil-burg, ruled the information given to Dr. Mason as head of the registry was not privileged pursuant to Iowa Code sections 135.40-.42 and directed Dr. Mason to answer deposition questions concerning this information. The court refused to compel any discovery of Dr. Mason involving his expertise since he had not been consulted by either party as an actual or prospective witness.
After this ruling, Mitchell amended her answers to interrogatories in her Davis County action to indicate that she intended to call Dr. Mason as an expert witness. She again subpoenaed Dr. Mason and also sent him a check for the statutory expert witness fee pursuant to Iowa Code section 622.-72. One day before the scheduled deposition Dr. Mason informed Mitchell that he was not willing to testify as an expert in the action. At the deposition, he answered all questions involving the factual information but repeatedly refused to answer any questions based on his expertise.
Mitchell again filed an application in Johnson County District Court. Specifically, she requested an order compelling Dr. Mason “to answer any and all of plaintiff’s counsel’s questions concerning his general knowledge of the area of gastric by-pass surgery and . .. regarding his general opinion as to the care received by Mr. Mitchell.... ” Dr. Mason filed a resistance to the application supported by affidavit asserting that he was not a party to the case, he was not a treating physician in the case and he did not have an opinion concerning the medical treatment provided in the case, that he was not able to formulate an opinion concerning the standards of medical care applicable to this case without an extensive review of the medical literature and an examination of the medical records, that his testimony would jeopardize the research of the National Bariatric Surgery Registry, that his preparation and testimony in this case would interfere with his responsibilities at University Hospital, and that other experts were available to render opinions concerning the standard of care provided the decedent in this case. The matter was apparently submitted to the district court with the briefs and arguments of the parties but without any hearing or further record.
In response to Mitchell’s application, the defendant district court, Judge L. Vern
In its ruling on the motion to compel, the trial court principally relied on Iowa Rules of Civil Procedure 122(a) and 140(a). Taken literally, the language of these two rules permits deposition discovery from any person on any relevant matter that is not privileged. The court concluded expert testimony was relevant to the issues in the underlying malpractice action and expert witnesses do not enjoy any testimonial privilege in Iowa. Given the parameters of our discovery rules as well as the common law principle of the “public’s right to everyman’s evidence,” the trial court apparently felt it lacked discretion to deny the motion to compel. Because we do not agree, the writ of certiorari is sustained.
Initially, we are confronted with the issue of whether a distinction should be made between compelling an unwilling expert to testify at trial as opposed to such compulsion in the pretrial discovery context. Normally the scope of discovery is not limited to evidence that would be admissible at trial. Iowa R.Civ.P. 122(a). The parties in their respective briefs have relied upon case authority involving expert compulsion in both pretrial and trial situations. Additionally, courts considering whether to compel expert testimony in discovery proceedings generally have not relied on any distinction between discovery and trial testimony in resolving the issue. In re New York Municipal Securities Litigation, 30 F.R.S.2d 842 (S.D.N.Y.1980) (magistrate’s report subsequently adopted by district court); Wright v. Jeep Corporation,
We conclude, in these limited circumstances, the right to compulsory discovery should be no broader than the right to compel the same expert to testify at trial. Accordingly, a trial court has the same authority to determine the need for and issue protective orders in the discovery context as it would at trial. Having disposed of this corollary issue, we now turn to consideration of the central issue involved in this case.
Mitchell contends a party has a right to opinion testimony as long as it does not require the expert to engage in any preparation. Thus, she reasons the district court order adequately protected Dr. Mason since it did not require him to do any extra work. Moreover, she claims the order conforms to our liberal construction of discovery rules and our strict construction of testimonial privileges. Finally, Mitchell insists the plaintiff is asking this court to engraft a testimonial privilege based on expert status onto our discovery rules.
The plaintiff characterizes the issue somewhat differently. Basically, he argues litigants do not have an absolute right to the expert of their choice. In particular, a party to a medical malpractice action does not have the right to compel previously unformulated opinion testimony from a physician who had no prior connection with the patient in question and who is unwilling to serve as an expert. He insists the creation of expert testimony for a litigant has always been a matter of contractual relations between the parties. Consequently, he urges that the voluntary nature of this relationship should not be overridden by a court except where a party has established that no other reasonable alternative is available. Finally, to the plaintiff, the issue is not one of testimonial privilege but whether he has a duty to testify in this
The cases concerning the compulsion of expert testimony vary greatly depending on the factual situations presented and the legal approach taken. See collection of cases contained in Annot.,
Plaintiff points out that four jurisdictions have adopted a broad rule that experts cannot be compelled to give testimony based solely on their expertise. People ex rel. Kraushaar Bros. & Co., Inc. v. Thorpe,
Mitchell relies heavily on two federal cases to support her claim for compulsion. Both of these cases, however, are factually distinct from the situation presented for our decision.
In Kaufman v. Edelstein,
The other case relied on by Mitchell to support expert compulsion here is Wright v. Jeep Corporation,
As was the case in Kaufman, the particular information sought from the Wright expert was not readily available from other sources. Moreover, while the factual observations sought in discovery may have involved some expertise and experience, neither the court nor the litigant in Wright were seeking an expert opinion per se from the researcher.
Thus, although both the Wright and Kaufman cases affirm the general principle that an unwilling expert is not immune from compulsory process merely because he is an expert, they do not support Mitchell’s contention that a party has an unlimited right to compel the expert of his choice to provide opinion testimony. Quite the contrary, the decisions in these cases were based, in large part, on the peculiar need of the compelling party for the information sought and its unavailability from other sources.
Although we have not addressed the question of compulsory extraction of expert testimony from an unwilling witness not acquainted with the facts either in discovery or in trial situations, this court has repeatedly stated that our discovery rules should be liberally construed to effectuate disclosure of all relevant and material information to the parties. Pollock v. Deere and Co.,
Plaintiff claims that the absolute right to testimony rule should be rejected because: (1) the expert’s knowledge is a form of intellectual property with considerable economic value; (2) even with compensation it is unfair to take the expert’s opinion involuntarily since he should be allowed freedom of choice regarding the best use of his time
We do not choose to follow the approach of New York and other jurisdictions which totally excuse an unwilling expert without factual knowledge from testifying. The duty to testify or, alternatively, the “public’s right to everyman’s evidence” arises from the need of our judicial system to have access to all relevant information in ascertaining the truth. 8 J. Wigmore, Evidence § 2192 at 72-73 (McNaughten Rev. 1961). See also United States v. Nixon,
On the other hand, neither do we believe that a litigant, in this instance, should have an unlimited power to compel expert testimony. In contrast to factual witnesses who possess knowledge which is unique and many times irreplacable, expert testimony is not based on any singular personal knowledge of the disputed events. Rather, it depends upon specialized training or other acquired knowledge which allows the expert to draw inferences and form conclusions. Since in most areas of expertise, many individuals possess the necessary qualifications to render expert opinions, this kind of testimony is usually duplicable. Consequently, unlike factual testimony, expert testimony is not unique and a litigant will not be usually deprived of critical evidence if he cannot have the expert of his choice.
The distinctive character of opinion testimony and the ability to obtain it from other sources has important implications for the common law principle of “the public’s right to everyman’s.” Since necessity is the lodestar of this maxim, it may not be applicable to a particular expert, in the absence of some demonstrated need for his opinion.
Moreover, without judicial protection, numerous individuals would be subject to the demands of litigants. In a technical society, many individuals possess some expertise. Additionally, most claims would benefit from learned and expert illumination. Theoretically, parties, regardless of the size of their claim or its potential merit, could routinely issue subpoenas compelling expert discovery. Parties could engage in fishing expeditions, deposing several experts, in an effort to find one favorable to their cause. Although many of these concerns may be exaggerated, the potential for abuse if a party has an unlimited right to compel expert discovery is very real.
We prefer to take a middle ground between total excuse and unlimited compulsion of expert opinions from a stranger to the litigation. We deem that generally an expert witness, absent some other connection with litigation, is free to decide whether or not he wishes to provide opinion testimony for a party.
This is not to say compulsion is never proper. Rather, the distinction between previously formed opinions and those requiring preparation does not serve as a sufficient justification for the abrogation of an expert’s right to freely contract for his services. Conversely, the principle of necessity does provide a sound basis for compulsion of an unwilling expert’s testimony. Consequently, before the court compels an expert to testify solely on the basis of his expertise and in the absence of any other connection to the litigation, the compelling party should affirmatively demonstrate some compelling necessity for an expert’s testimony that overcomes the expert’s and the public’s need for protection. Additionally, an adequate plan of compensation must be presented. Finally, an expert only can be compelled to give previously formed
If, after balancing the relative rights of the expert and the needs of the litigants, necessity is established, then the fair and just administration of our judicial system would override any concerns about forcibly extracting a prior opinion from an expert. In cases of necessity, a duty would arise on the part of the expert to provide opinion testimony. Such a duty would run not to the compelling party but to society and its need for all relevant information in ascertaining the truth. 8 Wigmore § 2192 at 72-73. Conversely, in the absence of such showing, a particular expert has no duty to provide opinion testimony.
Thus, we conclude our trial courts have wide discretion to quash subpoenas or issue protective orders whenever a litigant’s demand for a particular expert constitutes an unnecessary or unwarranted intrusion. Conversely, the trial court has the power to compel an unwilling expert to provide pre-formulated opinion testimony whenever a litigant establishes a compelling need for the testimony.
At this time, we do not choose to establish specific standards for the trial bench to utilize when confronted with this issue. We not only cannot foresee all of the problems that may arise, but we are also aware of the ingenuity of litigants and counsel to adapt and use guidelines to their advantage in a manner that would result in a rigid rather than a flexible approach to the resolution of this problem. Our trial courts are in a better position to balance the rights of the witness and any unfairness that may result from expert compulsion against the need of the court and litigant for the testimony. We deem it better to grant them discretion to consider a variety of factors and their appropriateness to or importance in deciding each individual case.
Here, the trial court determined it could not excuse the witness from testifying but could restrict the scope of the inquiry. Consequently, the court did not exercise discretion in deciding whether Dr. Mason should be required to give expert opinion testimony. We hold this was error.
We find it unnecessary to remand this matter for a ruling, however. Mitchell did not present any evidence by affidavit or otherwise supporting her motion for compulsion of Dr. Mason’s expert opinion. Dr. Mason’s affidavit that other physicians in the state are qualified to render expert opinion in the medical malpractice action is unrefuted. Since Mitchell did not affirmatively demonstrate a compelling necessity for this particular witness’s expert testimony, the trial court erred in granting her application. Consequently, we remand for entry of an order denying Mitchell’s application.
In the limited circumstances of this case, we find sufficient grounds for sustaining the writ of certiorari.
WRIT SUSTAINED.
Dissenting Opinion
(dissenting).
The effect of this case, it seems to me, is to superimpose on our existing procedural and evidence rules a virtual veto power, in the hands of “expert” witnesses, over the. courts’ well-established claim to “every man’s evidence.” This result does not proceed from a recognition of an established “expert witness” privilege, because there is none. Rather it appears to proceed on the premise that such witnesses owe no duty to testify at all, at least in the absence of a showing of necessity by the litigant seeking to use it as evidence.
The majority holds that an expert may be compelled to testify but only upon certain threshold showings. This hybrid procedure, which appears to be unique among all the states, rejects both the majority rule, which is that expert witnesses may be compelled to testify the same as any other witnesses, as well as the minority view, which is that expert testimony cannot be compelled at all. In striking this middle ground, the majority thus rejects the benefit of the majority rule, which is the advancement of the prin
The majority would concede, I assume, that if inquiry of this witness were limited to observed facts, as opposed to those based upon education, training or experience, he could be compelled to testify without the necessity of the preliminary showing which it requires here. Yet there is no rational basis for applying different rules to witnesses furnishing “scientific” as opposed to “observed” facts. One is the product of learning and experience, the other of direct perception but, if the whole purpose of witness evidence is to assist the fact trier, what is the difference? As will be discussed later, the arguments raised by Dr. Mason as to why he should not be compelled to testify as an expert can be made as well by the nonexpert. This brings me to what I believe is the first major defect in the majority’s analysis, the legal basis of the specialized treatment of expert witnesses.
I. The Legal Principles.
It is universally recognized that the courts are entitled to “every man’s evidence,” and the majority opinion recognizes this. The only exceptions to the general rule arise under rules of exclusion or privilege. In contrast to other witnesses who may be compelled to testify without any foundation showing of necessity for it and unavailability of other witnesses, the expert witness such as Dr. Mason cannot be compelled to come forward until that threshold showing is made, according to the majority. This disparate treatment must surely be considered a privilege, at least a qualified one.
The duty to give testimony is not owed to the litigants or the lawyers, or even the courts, but to the community, or to society as a whole. 8 J. Wigmore, Evidence § 2192, at 73 (McNaughton rev. 1961).
The whole life of the community, the regularity and continuity of its relations, depends upon the coming of the witness. Whether the achievements of the past shall be preserved, the energy of the present kept alive and the ambitions of the future be realized depends upon whether the daily business of regulating rights and redressing wrongs shall continue without a moment’s abatement, or shall suffer a fatal cessation. The business of the particular cause is petty and personal, but the results that hang upon it are universal. All society, potentially, is involved in each individual case. The vital process of justice must continue unceasingly. A single cessation typifies the prostration of society. A series would involve its dissolution. The pettiness and personality of the individual trial disappear when we reflect that our duty to bear testimony runs not to the parties in that present cause, but to the community at large and forever.
Id.
Because the interest in obtaining testimony of witnesses is, in essence, that of the community, it seems reasonable that grounds for a witness privilege or exclusion must be of comparable stature, that is a societal interest rather than the interest of a person, or even a group of persons.
That the principle of witness privilege is not based upon concern for the individual is illustrated by the fact we have a statute, Iowa Code section 622.13, which provides that a witness may not be excused from testifying on the ground it will result in personal liability. We held in Gibb v. Hansen,
The societal, as opposed to personal, interest in witness privileges is apparent from examination of their rationale. The qualified reporter privilege, recognized by the Supreme Court in Branzburg v. Hayes,
In Trammel v. United States,
must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”
Id. (quoting Frankfurter dissent in Elkins v. United States,
Consistent with this view, one authority has observed that “[t]he investigation of truth and the enforcement of testimonial duty demand restriction, not the expansion of these [testimonial] privileges. They should be recognized only within the narrowest limits required by principle.” 8 J. Wigmore § 2192, at 73 (McNaughton rev. 1961).
With these principles in mind, consider Dr. Mason’s objections in this case: (1) He was not the treating physician; (2) he was not a party to the suit; (3) he had no opinion concerning the medical treatment provided; (4) he was not able to form an opinion without preparation; (5) his testimony would “jeopardize” the research of the National Bariatric Surgery Registry; (6) his testimony would interfere with his duties at University Hospital; and (7) other experts were available, who presumably would not object to testifying.
Most of these objections would be as applicable to the nonexpert as well as the expert witness. Moreover, none of these objections rises to the level of a significant societal interest.
As to Dr. Mason’s objection based upon the time it would take, it would have taken less of his time if he had simply answered the questions. He was not required to spend time outside of the depositions preparing to testify; Judge Robinson’s order specifically provided that. Anyway, the time of the litigants, lawyers and courts should count for something in this matter. Here the doctor’s refusal to answer these questions began a series of legal proceedings which have now extended over a period of almost two years and have consumed considerable time on the part of all the principals.
I believe the prevailing rule is that expert witnesses may be compelled to testify the same as any other. 4 J. Moore, Federal Practice ¶ 26.66[1], at 26-469 (1983) (states this to be prevailing rule; expert, however, cannot be compelled to prepare for testimony); Carter-Wallace, Inc. v. Otte,
At common law there was no privilege for expert witnesses, although there are arguments that might support at least a qualified privilege. A few federal courts invoked privilege as a ground for denying discovery of expert information, but this view was repudiated by a majority of the decisions and by the Advisory Committee on Civil Rules. Courts have declined to create a privilege for expert witnesses under Rule 501. There are, however, some restrictions on discovery from expert witnesses under the Civil Rules; it is to be hoped that these restrictions will not be converted into a privilege.
(Footnotes omitted). 23 C. Wright and K. Graham, Federal Practice and Procedure § 5431, at 825-26 (1980).
II. The Practical Considerations.
Completely aside from the legal considerations, I believe the procedure adopted in this case will create uncertainty and confusion in the area of expert testimony. The majority expressly rejects the adoption of any specific standards for application of its expert-witness rule; the only thing which is certain is that the established rules and procedures applicable to witnesses in general will now be inapplicable, and a new procedure without any standards or rules will be substituted.
At the outset, it will be difficult in many instances to determine whether this appeal rule is applicable. Under Iowa Rule of Evidence 702, defining “expert” witnesses, almost any witness could be included, at least as to some of his testimony. So we could have two rules applicable to the same witness. This is exactly what happened in Dr. Mason’s case; the court concluded that, because some of his testimony was “expert” and some “nonexpert,” he could be compelled to answer some questions but not others. What is an expert is an inexact determination at best. Looking to the nature of the evidence to determine whether the witness is an expert must necessarily entail a consideration of whether the evidence is “opinion” or “fact,” labels which themselves are subject to considerable uncertainty. Dr. Mason’s case again furnishes an example: When he was asked who, among other doctors, was an expert in this area, he refused to respond, saying that evaluation of the doctor was itself expert testimony. Some, however, might rationally argue this was “fact” testimony. The point is there could be a valid argument as to what rule is applicable, because of disagreement as to the type of witness or evidence involved.
Reliance on whether the proposed evidence is “fact” or “opinion” is not realistic, as these terms themselves escape workable definition. As Wigmore has observed,
there is no virtue in any test based on the mere verbal or logical distinction between “opinion” and “fact.” There is perhaps, in all the law of Evidence, no instance in which the use of a mere catch-word has caused so much of error of principle and vice of policy; — error of principle, because the distinction between “opinion” and “fact” has consistantly [sic] and wrongly been treated as an aim in itself and a self-justifying dogma; vice of policy, because if this specious catch-word had not been so handily provided for ignorant objectors, the principle involved would not have received at the hands of the Bar and the Bench the extensive and vicious development which it has had in this country.
It is necessary now to notice why, so far as the principle or the reason of the thing is concerned, the law takes no more special account of a logical difference between “opinion”-testimony and “fact”testimony than between testimony by a short witness and testimony by a tall witness.
[t]his classic formula [for distinguishing fact and opinion], based as it is on the assumption that “fact” and “opinion” stand in contrast and hence are readily distinguishable, has proven the clumsiest of all the tools furnished the judge for regulating the examination of witnesses.
C. McCormick, Evidence § 11, at 23 (1972).
Further confusion will result because the litigant seeking to compel expert testimony must show that other “qualified” witnesses are “unavailable.” Yet, who is qualified and what makes a witness available? There are no guidelines provided by this new rule. Is a willing expert “available” if he lives in Denver? Or Los Angeles? And, is a doctor with half Dr. Mason’s experience “qualified”?
Objections based on distance required to be traveled have no more bearing as to expert than any other witnesses. Under Iowa Code section 622.66, no witness may be compelled to attend at a distance over 100 miles.
In summary, I think an expert witness should be treated like any other. I do not think he can be compelled to prepare for his testimony because this smacks of involuntary servitude. Other objections, such as raised by Dr. Mason, should be considered like those of any other witness and should be considered by the trial court in an application for a protective order.
The prophylactic rule adopted by the majority, simply excluding the evidence in the absence of the threshold showing, is not only contrary to the prevailing view; it will cast the district court adrift without specific rules or guidelines and will therefore be virtually unworkable.
Judge Joiner, in the Wright case summarized my feelings about this issue. Recognizing that some experts would likely be busy in court, he observed that
[t]he solution is not to cover-up the information or its data base because disclosure is too burdensome but to use the tools available to lessen the burden and to permit the information to become available.
Wright v. Jeep Corp.,
I would annul the writ.
McGIVERIN, J., joins this dissent.