Mason v. Robinson

was at fault to one who unavailable Peters, 168 N.W.2d

causing litigation. previously explained

at 770. We shift to defendant bro-

the burden did not in- properly

ker and believe the trial court assignment on the issue. The

structed merit.

without was

V. An identical addition separate

made to the trial court’s instruc claim breach of fiduci plaintiffs’

tion on ele trial court listed the

ary duty. The made the recovery again

ments of that plaintiffs additions. more

same two Once litigation also to show the required

were conduct solely by

was caused defendants’ way plaintiffs

and that were not causing litigation.

fault the Wunschel explained the same reasons in the

For it was not

preceding division we conclude part to add the two elements as a

error fiduciary

the breach of claim. chal-

VI. We have considered other the instructions. To detail them

lenges to They unduly opinion. extend this rejected principles under the outlined for undue they

Division I in that would call instruction, call of an or would

repetition unsupported instruction on a matter

by substantial evidence.

AFFIRMED. MASON, Plaintiff, E.

Edward ROBINSON,

The Honorable L. Vern Judge

District Court of the Sixth District, Defendant.

Judicial 69143.

No. Court of Iowa.

Supreme

Nov. Miller, Gen.,

Thomas J. Atty. Mark E. Schantz, Moines, Scott, Des and John R. Sp. Gen., Atty. for plaintiff. Asst. Holm, Jr., Daniel H. and William Ball C. Ball, Holm, P.C., Waterloo, Kirk & Critelli, Moines, Nick Des for defendant. Dickinson, Richard Lyford F. Throck- morton, Parker, Raife, Mannheimer & Des Moines, for amicus curiae Iowa Medical Soc. SCHULTZ, Justice. issue this presented action court re-

whether trial has discretion to witness, unwilling is a lieve who stranger litigation, providing pretrial dis- during covery deposition. Since we determine litigant does not an absolute opin- unwilling expert compel expert’s personal ion on facts outside the knowledge, we that a trial court hold such or discretion to either relieve circumstances testimony depending presented case. since he had not been consulted expertise certiorari action arises from original This plain- a district court order prospective either as an actual Mason, M.D., tiff, respond Edward E. witness. expertise involving his deposition questions ruling, Mitchell amended her After Al- by-pass surgery. the field gastric Davis interrogatories answers to in her court the nominal though the district that County action to indicate she intended Mitchell, a proceeding, defendant in this Dr. as an witness. to call Mason She is the inter- plaintiff, medical malpractice subpoenaed Dr. Mason and also sent again of this party ested and has assumed defense statutory check wit- him a action. to Iowa Code 622.- pursuant ness fee section present Dr. Mason’s involvement in the day deposi- the scheduled 72. One before origin in mal- dispute had its a medical Mitchell that he tion Dr. Mason informed Davis practice currently pending action testify as an willing was not action, County, Plaintiff in that Iowa. deposition, At the he answered the action. (executor her husband’s Vicki Mitchell involving the factual informa- questions all decedent, Ronald estate) that alleged any refused answer repeatedly tion but Mitchell, by negligence died as a result of expertise. his questions based on per- three in their three doctors and nurses Dur- gastric by-pass surgery. formance of again application filed Mitchell deposition of one of the defendant ing County Specifical- District Court. Johnson doctors, (Dr. Schiebe), that Mitchell learned Dr. requested she an order ly, the doctor had factual information provided plaintiff’s “to and all of any Mason answer its surgery subsequent about the com- concerning questions general his counsel’s Surgery plications to the National Bariatric gastric knowledge by-pass the area University Hospi- at Iowa Registry . his surgery regarding general opin- and .. tals and Clinics. Dr. Mason is the director by received Mr. Mitch- ion as care ” surgery at registry professor of the and a Dr. filed a resistance to ell.... Mason Iowa of Medicine. University College by as- application supported affidavit this learning exchange After between case, not a serting he was doctors, Dr. subpoenaed the two Mitchell physician not a in the case treating he was deposition Mason to his in Johnson take concerning he did not have an at the County. Although appeared Mason case, provided in the the medical treatment any ques- deposition, he refused answer opin- he was able to formulate an not he had concerning tions information medical concerning the standards of ion Dr. He felt received from Schiebe. this case without an ex- applicable care it was information was confidential since review the medical literature and tensive capacity in his as director acquired records, that examination of the medical sought registry. Subsequently, Mitchell the research jeopardize his would in Johnson order from the district court Surgery Registry, Bariatric of the National Dr. Mason to answer County compelling in this his preparation infor- only regarding the factual questions with his responsibil- case would interfere acquired, Dr. had but also to mation Mason University Hospital, ities at and that care on the medical expert opinion opinions were available render experts ac- by malpractice received decedent provided of care concerning the standard court, Paul J. Kil- Judge tion. The district The matter was the decedent in this case. to Dr. burg, given ruled information court to the district apparently submitted Mason was registry as head of par- arguments of with the briefs and sections privileged to Iowa Code pursuant further hearing or any but without ties to an- 135.40-.42 Dr. Mason and directed record. concerning this swer deposition questions response application, Mitchell’s compel court refused information. The court, L. Vern involving Judge Mason defendant district of Dr. Robinson, Mason ordered Dr. to answer So.2d 594 (Fla.App.1967). Finally, while ar- deposition general guments about stan- questions could be made that these situa- of care in type surgery dard tions are factually legally distinct, fair- hypothetical questions about ness dictates that an not be required standard of care received decedent in to expend effort during time and the dis- underlying malpractice covery medical action. The process if he could not be compelled also parties negotiate court ordered the at trial. the amount of Dr. Mason compensation conclude, We in these limited cir receive testimony. for his It cumstances, right compulsory dis require did not Dr. to engage Mason in any covery should be no broader than

pre-testimonial preparation investiga- to the same tion. trial. a trial court Accordingly, has the

In its ruling compel, on the motion to same authority to determine the need for court trial relied on Iowa principally Rules and issue protective orders in the discovery Civil 122(a) 140(a). of Procedure and Taken context as it at trial. Having dis literally, the of language posed issue, these two rules of corollary we now turn to permits deposition discovery any from consideration of the central per- issue involved in this any son on case. relevant matter is not privileged. The court expert concluded tes- party Mitchell contends a right has a to timony was relevant issues in the opinion long testimony as as it does not underlying action malpractice require the expert engage any in prepa- any witnesses do not testimonial enjoy priv- Thus, ration. she reasons the district court in ilege parameters Iowa. Given the of our adequately order Dr. Mason protected since discovery rules as well as common law it did not him to do extra require work. “public’s right to every- Moreover, she claims order conforms to evidence,” man’s the trial court apparently our liberal construction of discovery rules to deny felt lacked discretion the motion and our strict construction testimonial compel. do not agree, Because we privileges. Finally, Mitchell insists writ of certiorari is sustained. plaintiff engraft is this court to a asking on privilege testimonial based status Initially, we are confronted with onto our discovery rules. the issue of whether a distinction should be made between unwilling ex The plaintiff characterizes the issue pert testify opposed at trial as to such Basically, argues somewhat he differently. compulsion in pretrial discovery con litigants right do not have absolute Normally scope text. is a discovery particular, of their choice. party malpractice not limited to evidence that would to a action be ad medical does missible at 122(a). compel previously trial. Iowa R.Civ.P. have the parties respective their briefs have a opinion testimony unformulated from upon authority involving relied case physician prior who had no connection with compulsion unwilling in both and trial pretrial patient situa and who is question tions. courts Additionally, considering to serve as an He insists the cre- expert. litigant whether to ation for compel expert testimony expert testimony dis a has covery proceedings generally always not re been a matter contractual rela- Consequently, lied on distinction between tions parties. between the resolving voluntary trial he nature of this testimony urges issue. Municipal by In re New Liti overridden relationship York Securities should not be (S.D.N.Y.1980) 30 has established gation, except F.R.S.2d 842 court where a is (magistrate’s subsequently alternative report adopted no other reasonable Jeep Corpora plaintiff, district v. the is- by court); Wright Finally, available. tion, (E.D.Mich.1982); privilege 547 871 sue is but F.Supp. not one of testimonial County, testify Dade 201 in this Young Metropolitan duty v. whether he has a how knowl- as to no matter facts case. Since from more than one he available them was obtained but cannot edge normally source, is whether Dr. Mason question unless all, should a witness whether become so); Pennsyl- voluntarily he to do contracts certain privileged disclosing rele- he Philadelphia, v. City vania Co. Insur. vant With these views information. 439, 442, (1918) (an 262 Pa. A. 630 mind, on turn to the authorities relied we unwilling cannot be parties. request private litigant at the of a bargaining that is a matter of because compulsion concerning The cases also private agreement). Agnew See expert testimony vary greatly depending Parks, P.2d Cal.App.2d le- presented situations factual (1959) (absent con- gal approach pre-existing taken. See collection cases Annot., 77 duty patient, contained in A.L.R.2d treat or tractual examine Testify: A (1961); Compelling Experts to agreement to enter an doctor no Proposal, 44 U.Chi.L.Rev. 854-55 n. 11 as expert). to render services a medical (1977) cases cited therein. Additional- heavily Mitchell relies on two federal about the ly, secondary disagree authorities her support compulsion. cases to claim instance, of this issue. For resolution cases, however, factually these Both of Comment to 77 A.L.R.2d 1182 states that presented for distinct from the situation that, while a weight authority holds our decision. require unwilling court cannot Edelstein, 539 F.2d 811 In Kaufman v. engage preparation out-of-court Cir.1976), that (2d the second circuit held investigation, power it does have the the its discretion in trial court did abuse opin- to state compel an whatever the in its allowing government antitrust ions he have formed. On may previously against compel testimony IBM action hand, the is indicated elsewhere two individuals with considerable ex- expert may compelled be that while an industry. in the pertise computer Specifi- personal to matters within his as government the wanted these wit- cally, he not be a knowledge, may compelled by “to the of duties explain nesses nature their as private litigant expert, computer systems espe- as consultants and of being bargain. a matter contract or 97 gave to recount advice to various cially they 16(b) (1957). C.J.S. Witnesses § potential computer sys- users and users of points jurisdictions Plaintiff out that four Id. 813. the Significantly, tems.” at experts have rule can- adopted broad that government asking was not give testimony not be based in the case of their evidence IBM evaluation ex rel. solely expertise. People on their testi- but instead stated the witness’s Co., Thorpe, Bros. Inc. v. 296 Kraushaar & which would be confined events mony 165, 223, 225, (Ct. N.Y. 72 N.E.2d Judge between 1960-72. Id. As occurred 1947) (an Appeals previously who concurrence, in his these ex- Gurfein noted \question had the appraised property perts ordinary differed from the testify to his observa- could be the relationship has no with personal who opinions); property tions of but not to his Indeed, subject litigation. matter of Vitello, 224, v. 367 Mass. Commonwealth as intimately were involved observers they 235, 819, (1975) (although N.E.2d 827 327 and devel- participants growth opinion about value voice- processing opment of the electronic data relevant, be print party .evidence even the au- Finally, market. Id. at 823. involuntary testimony indicated majority thor of expert solely expertise of an testimony sought part substantial knowledge any personal by the absence given by by government only could facts); Braverman v. at Un- 368, Id. 821. Braverman, 367, particular experts. 21 91 these N.J.Super. A.2d 226, (an case, (1952) required present 227 expert can be like the most

241 sought in the Kaufman case was factual for the information opinion. Moreover, rather par- than these sought unavailability and its from other possessed unique ticular experts informa- sources.

tion unavailable from other source. Although we have not addressed the on by The other case relied Mitchell to question of compulsory extraction support here is expert compulsion Wright v. testimony from an unwilling witness not Jeep F.Supp. (E.D. 547 871 Corporation, acquainted with the facts either dis Mich.1982). Wright In in a defendant situations, or in trial covery this court has personal injury action, Jeep Corporation, repeatedly stated that our discovery rules sought discovery of a crash vehicle re should liberally construed to effectuate published searcher who had re adverse disclosure all relevant and material infor port safety on the of certain vehicles manu mation to the parties. Pollock Deere and v. factured by defendant. informa Co., 735, (Iowa 282 N.W.2d 738 1979); tion all data sought Jeep was research Wheatley Heideman, 695, v. 702, 251 Iowa pertaining study memoranda to a 343, (1960); 102 N.W.2d Spot 348 Hot De highway safety par in which the researcher tector, Inc. v. Corp., Rolfes Electronics 251 ticipated grew and out of adverse 647, 651, 354, Iowa 359 (1960). N.W.2d report. Id. was interested in Jeep Additionally, we been reluctant to cre learning the underlying factual basis ate new in this In re privileges past, Mar researcher’s conclusion about its vehicle be Gaumer, 136, 138 riage (Iowa 303 N.W.2d might cause it felt used study 1981) or to expansively existing read ones. against it at trial. re Although Id. Farber, v. (Iowa State 314 N.W.2d objected searcher on the basis 1982). recognized We have that, alia, inter he was an could public every man’s testify, compelled to court held evidence, Winegard Oxberger, ruling, otherwise. so the court noted (Iowa 1977), denied, N.W.2d cert. was not being required researcher to assist 56 L.Ed.2d 402 U.S. S.Ct. in explaining technical matters but rather (1978). We have also our afforded trial being required underly was to disclose the wide over course judges discretion the and ing factual basis for the his conclusions so including conduct of a trial such issues as parties and the court judge could the validi witness, a v. competency the Whit State ty of these Id. at conclusions. 753, field, (Iowa 1982); 315 755 N.W.2d the Kaufman, on a point,

As was the case in the number witnesses certain particu- lar v. Paul Wright Ruby Chicago, Ry. information from Milwaukee & sought the St. 133, 817, Co., not Iowa 129 expert was available from other 150 N.W. 819 readily Moreover, (1911); the the attendance of witnesses at sources. while factual obser- sought discovery expense, vations in in- v. 170 may Mayhew, State State (Iowa 1969); volved nei- and the wit expertise experience, some and N.W.2d attendance, State, ther the nor court Hahn v. litigant Wright court in nesses’ 1981). seeking (Iowa were Whether this expert opinion per se from N.W.2d excusing experts, extends to who researcher. discretion strangers litigation, to the is the issue Thus, although Wright both we must decide. general Kaufman cases affirm the principle right to unwilling that an is not immune Plaintiff claims that absolute rejected from because: process because he rule should compulsory merely a (1) is an form of expert, they support expert’s knowledge do not Mitchell’s is contention that a with considerable eco- party property has unlimited intellectual value; it right compel (2) compensation to with his choice nomic even provide con- invol- Quite expert’s opinion is unfair to testimony. take the freedom untarily were be allowed trary, decisions in these cases since he should based, large of his time part, in need of of choice the best use peculiar regarding on the right “the public’s law further, right common and, to select service; the lode- everyman’s.” necessity if labor and is recipient, any, Since requires he devote (3) public maxim, may applicable interest of this star to his teach- surgical talent energy the absence particular expert, to a duties at Uni- ing and administrative opinion. need for his demonstrated some than liti- Hospital private versity rather Moreover, nu- judicial protection, without these We that none of gation. conclude subject would be merous individuals testi- necessarily preclude his reasons would a socie- In technical litigants. demands may legitimate con- mony, although they possess expertise. some ty, many individuals ruling trial is on siderations when a court Additionally, claims benefit most expert compulsion. motion for The- learned and illumination. choose follow We do not parties, regardless of the size oretically, jurisdic York and other approach New merit, could rou- potential claim its their ex unwilling which excuse an totally tions subpoenas compelling issue tinely knowledge without from testi pert factual fishing discovery. engage Parties could testify or, alternatively, fying. duty several in an deposing experts, expeditions, everyman’s evidence” “public’s right to find favorable their cause. effort one system of our judicial arises from the need may be Although many of these concerns all relevant information to have access to abuse if exaggerated, potential for Evi ascertaining Wigmore, 8 J. the truth. ex- compel has an unlimited Rev. dence (McNaughten very is real. pert Nixon, 418 See also United States 1961). 683, 709, 3090, 3108, 41 L.Ed.2d 94 S.Ct. U.S. ground prefer We to take middle (1974). Although compul total excuse and unlimited between citizen, the requires from a sacrifices stranger from a expert opinions sion be over inconvenience to the witness litigation. generally We deem that litigant borne need of court and witness, connec absent some other testimony. for the litigation, with is free decide wheth tion hand, we neither do testi provide opinion not he wishes to er or On instance, litigant, believe that a mony party. power should have an unlimited nev say compulsion This is is to factual testimony. contrast Rather, the distinction between knowledge proper.

witnesses er possess who irreplacable, those re unique opinions times formed many previously per any singular not based as a suf preparation does serve quiring events. knowledge disputed sonal of an justification abrogation ficient Rather, training upon specialized it depends for his freely to contract expert’s acquired knowledge or other which allows neces Conversely, the services. form draw inferences and to compul provide does a sound basis for sity exper in most areas of conclusions. Since testimony. unwilling expert’s an sion of necessary tise, many possess the individuals compels an the court Consequently, before expert opinions, render qualifications to of his solely to on the basis duplicable. is usually kind any other and in the absence of expertise ex testimony, factual Consequently, unlike compelling litigation, connection unique litigant not and a pert testimony is affirmatively demonstrate party should evi usually deprived of critical will necessity expert’s for an some of his if he have the dence cannot expert’s that overcomes choice. Addition public’s protection. need for compensation plan ally, adequate testi- opinion The distinctive character of only presented. Finally, other be mony and it from must ability to obtain formed previously give for the can be to implications sources has important opinions required and can to engage Mason should required out-of-court any preparation. opinion testimony. We hold this was error. find it unnecessary If, to remand after balancing the relative We this matter for a ruling, however. Mitchell rights of the and the needs of the did not present any evidence affidavit or established, litigants, necessity then the supporting otherwise her motion for com just fair and administration of our judicial pulsion of Dr. Mason’s expert opinion. Dr. system would override concerns about Mason’s affidavit physicians forcibly prior extracting opinion from an the state are qualified to render expert expert. In cases of necessity, duty opinion in the medical malpractice action is arise part on the of the expert provide unrefuted. Since Mitchell did not affirma opinion testimony. a duty Such would run tively demonstrate a compelling necessity the compelling society but to particular for this witness’s testimo and its need for all relevant information in ny, trial court erred in her granting ascertaining the truth. 8 Wigmore application. Consequently, we remand for at 72-73. Conversely, the absence of entry of an order denying Mitchell’s appli showing, such a particular expert has no cation. duty provide opinion testimony. In the case, limited circumstances of this Thus, we conclude our trial courts we find sufficient grounds for sustaining quash wide discretion to subpoenas or the writ of certiorari. protective issue litigant’s orders whenever a WRIT

demand for a expert constitutes SUSTAINED.

an unnecessary or unwarranted intrusion. All Justices concur except LARSON and Conversely, the power trial court has the McGIVERIN, JJ., who dissent.

compel an unwilling expert provide pre- formulated testimony whenever a LARSON, Justice (dissenting). litigant establishes a compelling need for case, The effect of this me, it seems to the testimony. superimpose on our existing procedural time, At this we do not choose to estab- and evidence rules a virtual power, veto lish specific standards for the trial bench to witnesses, “expert” hands of over the. utilize when confronted with this issue. We courts’ well-established claim to “every not only cannot foresee all of the problems man’s evidence.” This pro- result does not arise, that may but we are also aware of recognition ceed from a of an established the ingenuity litigants and counsel to “expert privilege, witness” because there is adapt guidelines and use to their advantage appears none. Rather it proceed on in a manner that would result in a rigid premise such witnesses owe no rather than a approach flexible to the reso- all, testify at at least in the absence aof problem. lution of this Our trial courts are showing necessity by litigant seeking in a better position to balance the rights of it as evidence. use the witness unfairness that majority holds that expert may result from expert compulsion against only upon but certain of the court litigant need for the testi- showings. procedure, threshold This hybrid We deem mony. grant it better them appears unique among which to be all the discretion to consider a variety factors states, rule, rejects majority both the and their appropriateness to or importance is that witnesses be may compelled in deciding each individual case. witnesses, the as testify to same Here, view, the trial it as minority court determined as well the which is that could not excuse the testify expert testimony compelled witness from cannot be at all. ing striking but could restrict in the scope ground, majority the of the this middle quiry. rejects majority the thus the of the Consequently, court did not ex benefit rule, ercise prin- discretion in Dr. which is the of the deciding whether advancement energy the of preserved, the as well as shall be man’s evidence” ciple “every and the kept The rule alive ambitions of minority the of the rule. certainty present depends upon the search future realized adopted majority the restricts the by daily regulating the business injects and new uncertainties. whether evidence redressing wrongs and shall contin- rights concede, assume, I majority would The abatement, a ue without moment’s or were limited that if witness inquiry a The suffer fatal cessation. busi- shall facts, opposed to as to those based observed the is petty ness of cause and he education, training upon experience, or hang upon but the results that personal, testify to without the compelled could be society, potentially, are universal. All it showing which preliminary necessity case. is involved each individual The it Yet is no rational requires here. there process justice vital must continue un- to wit- different rules applying basis A ceasingly. typifies cessation single to furnishing opposed “scientific” as nesses A series would prostration society. product “observed” facts. One is pettiness involve its dissolution. The experience, the other of direct learning disap- individual trial personality but, if the of wit- perception purpose whole we when reflect that our pear duty trier, assist what ness evidence is to the fact parties to the bear runs not la- is the As will be discussed difference? cause, present community that but to the ter, Mason as arguments by raised Dr. large and forever. not be why he should Id. by the as an can be made as well I brings This me to what be-

nonexpert. obtaining Because interest in testimo- major majori- lieve first in the is the defect essence, is, witnesses that of the ny of specializ- ty’s analysis, legal basis of community, seems reasonable that ed treatment of witnesses. for a or grounds privilege witness exclusion stature, comparable a must be of is Legal Principles. I. The interest rather than the interest of societal persons. or person, group even universally It recognized is entitled to man’s evi- “every courts are privilege of witness is That dence,” majority recognizes upon for the individual is not based concern general this. only exceptions The statute, have a by illustrated fact we privi- rule under rules of exclusion or arise 622.13, provides Iowa Code section lege. who In contrast other witnesses excused may that a witness from without on the it will result testifying ground showing of for it and necessity foundation v. liability. We held in Gibb Han- personal witnesses, unavailability of other sen, 180, (Iowa 1979), 286 N.W.2d as Dr. cannot be com- witness such Mason personal safety fear for of a witness pelled threshold to come forward until that Supreme to no and the gives privilege, rise made, majority. showing according Court, States, in Piemonte v. United surely This must disparate treatment 1720, (n. 2), (n. 81 S.Ct. U.S. privilege, qualified considered at least (1961) held that 2), 6 L.Ed.2d one. even a fear for the life of the witness and abrogate was not family sufficient is not owed duty The testify. or the or even litigants lawyers, courts, society community, but to societal, in- opposed personal, as as 8 J. Evidence Wigmore, a whole. privileges apparent terest in witness 1961). (McNaughton at 73 rev. The quali- examination their rationale. recognized reporter privilege, by fied community,

The whole life of the relations, Hayes, v. Branzburg regularity continuity Supreme of its Court in 2646, 33 L.Ed.2d 626 upon the the witness. 92 S.Ct. depends coming of U.S. (1972), in Lamberto past Whether our court achievements 245 Bown, (Iowa 305 1982) University 326 N.W.2d is based duties at Hospital; (7) which, upon principles available, the first experts amendment were who presumably said, it is “are not for the benefit of the object would not to testifying.

press so much as for the all benefit of objections Most of these would be as ap- Time, Hill, 374, 389, us.” Inc. v. 385 87 U.S. plicable to the nonexpert as well as the 534, 543, 456, (1967). S.Ct. 17 L.Ed.2d 468 Moreover, expert witness. none of these States, 40,

In Trammel v. 445 objections United U.S. rises to the level of a significant 50, 906, 912, 186, 100 S.Ct. 63 L.Ed.2d 195 societal interest. (1980), the Supreme Court discussed the objection As to Dr. Mason’s upon based rationale of priest-penitent, physician- take, the time it would it would have taken patient attorney-client privileges, less of his time if he had simply answered which is a societal maintaining interest questions. He was not required to confidence and trust in their communica- spend time outside of the depositions pre- tion. The Supreme Court in Trammel not- paring testify; Judge Robinson’s order public’s ed the “right every man’s evi- specifically provided that. Anyway, that, dence” and because testimonial exclu- time of the litigants, lawyers and courts rules sionary privileges contravene that should count for something this matter. principle, they Here the doctor’s refusal to answer these must be strictly accepted construed and questions began a series of legal proceed- “only to the very per- limited extent that ings which have now period extended over a mitting a refusal excluding years almost two and have consumed relevant evidence public good has a tran- considerable time on part of all the scending normally predominant prin- principals. ciple utilizing all rational means for I believe prevailing rule is that expert ascertaining truth.” witnesses Id. Frankfurter (quoting dissent in Elkins v. Moore, same as 4 any other. J. Federal States, 206, 234, United 364 80 U.S. S.Ct. 26.66[1], ¶ Practice (1983) (states at 26-469 1437, 1454, 1669, 1695 (1960) (em 4 L.Ed.2d rule; this to prevailing however, expert, Accord,

phasis added.)) United States v. testimony); cannot prepare Nixon, 683, 418 (n. 18), U.S. 94 S.Ct. ter-Wallace, Otte, Inc. v. 474 F.2d Car 3090, (n. 1039, 18), 3108 41 L.Ed.2d 1065 529, (2d Cir.1972), denied, cert. 412 U.S. (1974). 929, 2753, (1973) S.Ct. 37 L.Ed.2d 156 view, Consistent with this authority one (the “weight authority that], although [is has observed that investigation “[t]he it is not the practice, usual a court does truth and the enforcement of testimonial have the power subpoena wit restriction, demand expansion not the and, ness it cannot him though require these privileges. They [testimonial] trial, ... prepare require himself for it can recognized should be only within the nar- him to state whatever he opinions may rowest required by principle.” limits 8 J. formed, previously (citations omitted)”); Wigmore (McNaughton at 73 rev. 191-92, Dixon v. People, 168 Ill. 1961). (1897) N.E. (“[W]hen expert] is [an mind, required hypothetical question, these to answer a principles

With consider (1) special knowledge peculiar Dr. which involves a objections Mason’s in this case: He was not the his to do treating physician; (2) calling, merely required he was he is suit; (3) required he had no what citizen is to do in every good concerning public public medical treatment behalf of order and peace provided; (4) he promotion good”). was not able to form an public opinion without preparation; (5) possession his testi- court in Dixon said the mony would “jeopardize” the research of “scientific” be treated as facts should Registry; National Bariatric Kaufman Surgery any other fact witness. also See (6) Edelstein, (2d Cir.1976) would interfere with F.2d “nonexpert,” and some he could be com-

(“no statutory privilege or constitutional expert compulsion testimony, of some against questions to answer but not pelled prin no sufficient basis in perceive and we others. What is an is an expert inexact that holding the com ciple precedent or for at best. to the na- Looking determination recognizes any general privilege mon law ture evidence to of the determine whether expert knowledge”); Wright ... withhold expert necessarily the witness is an must (E.D. Corp., F.Supp. Jeep entail a consideration whether evi- of (held be Mich.1982) could “fact,” dence or labels which “opinion” weighing testify, subject are considerable un- themselves interests). certain societal against again Dr. Mason’s case furnishes certainty. was no privilege At common law there who, asked example: When he was witnesses, although for there doctors, among was an this at arguments might support that least area, saying respond, he refused A few federal courts qualified privilege. was itself evaluation of the doctor for ground denying invoked as a privilege Some, however, might rational- testimony. information, but this argue testimony. this was “fact” The ly repudiated by majority view was argument be as point is there could a valid Advisory Committee decisions and applicable, to what rule is because disa- Rules. on Civil Courts declined type witness or greement as to evi- for witnesses privilege create dence involved. are, however, Rule There under on proposed Reliance whether evi- discovery from ex- some restrictions on realistic, Rules; “opinion” dence “fact” or is not the Civil it is pert witnesses under escape as themselves workable these restrictions will these terms hoped to be observed, privilege. Wigmore converted into a As has definition. (Footnotes K. omitted). Wright 23 C. and any there is no virtue test based Graham, and Federal Practice Procedure logical or between mere verbal distinction (1980). § “opinion” and “fact.” There is perhaps, Evidence, in all the law of no instance in II. The Practical Considerations. the use of a mere catch-word has which Completely legal aside from the consider- principle caused so much error of ations, procedure adopted I believe the vice policy; principle, because —error uncertainty and confu- this case will create “opinion” between distinction testimony. sion in the area of consistantly wrongly “fact” has [sic] expressly rejects adoption of majority in itself been treated as aim and a application of its any specific standards dogma; policy, vice of be- self-justifying rule; only thing which is expert-witness had specious cause if this catch-word certain is the established rules handily provided ignorant ob- been so procedures witnesses applicable gener- jectors, principle involved and a new inapplicable, pro- al will now the Bar have received at hands of will cedure without standards rules and vicious de- Bench extensive substituted. had in coun- velopment outset, many At the it will be difficult in try. determine appeal instances to whether this why, so necessary It is now to notice applicable. rule is Iowa Rule Under far as the or the reason witnesses, “expert” Evidence defining concerned, takes no thing is the law more included, at almost witness could special account of a difference be- logical some we testimony. least as to So and “fact”- “opinion”-testimony tween have two applicable could rules the same testimony by a testimony than between This is happened witness. what exactly by a tall case; witness and that, short Dr. Mason’s the court concluded witness. “expert” because some was Wigmore, supra And, at 14. anoth- available to lessen the burden per- and to er authority has said that mit the information to become available. classic formula distinguishing Wright v. Jeep Corp.,

[t]his [for 547 F.Supp. at 877. fact and opinion], based as it is on the I would annul the writ. assumption that “fact” “opinion” stand in contrast and hence readily are McGIVERIN, J., joins this dissent. distinguishable, has proven the clumsiest of all the tools judge furnished the

regulating the examination of witnesses. McCormick,

C. (1972). Evidence at 23

Further confusion will result because the

litigant seeking expert testimony

must show that other “qualified” witnesses Yet, “unavailable.” who is qualified Murray DRAKE, Merriman, John and the and what makes a witness available? County Republican Polk Central There are no guidelines provided by this Committee, Appellees, new rule. Is a willing expert if “available” he lives in And, Denver? Or Los Angeles? is a doctor with half Dr. experience Mason’s POLK COUNTY BOARD OF SUPERVI- “qualified”? Maloney, SORS and James Polk Objections based distance required County Auditor, Appellants, be traveled have no more bearing as to than any other witnesses. Under Anania, Sam Intervenor. 622.66,

Iowa Code section no witness be compelled to attend at a distance over No. 68496. 100 miles. Supreme Court Iowa. In summary, I think an expert witness Nov. should be treated like any other. I do not think he can be compelled to prepare for his

testimony because this smacks of involun-

tary objections, servitude. Other such as Mason,

raised by Dr. should be considered

like those of any other witness and should

be considered by the trial court in an appli-

cation for a protective order. prophylactic adopted rule the ma-

jority, simply excluding evidence in the

absence of the showing, threshold is not view;

only contrary prevailing it will

cast the district court specif- adrift without

ic guidelines rules or and will therefore be

virtually unworkable.

Judge Joiner, in the Wright case summa-

rized my feelings about this Recog- issue.

nizing that some experts would likely be court,

busy he observed that solution is not to infor- cover-up the

[t]he

mation or its data base because disclosure

is too burdensome but to use the tools

Case Details

Case Name: Mason v. Robinson

Court Name: Supreme Court of Iowa

Date Published: Nov 23, 1983

Citation: 340 N.W.2d 236

Docket Number: 69143

Court Abbreviation: Iowa