*1 328
tеstimony contradictory to State’s wit- THOMAS, Appellant type of “new evidence” is This nesses. Marianne granting (Plaintiff), justify new trial. sufficient State, supra, 243. v. at Salaz v. regarding the bur- in Salaz What we said HARRISON, D., Appellee Myron M. proof applies in this
den (One Defendants), case: a new trial is made County Hospital “Where a motion for Memorial Sweetwater newly discovered evi- ground (Other James Hooker moving party defendants). burden dence the prove since the discovered No. 5374. from fault or trial that he was free failing dis- diligence in lack of due Wyoming. Supreme Court trial, cover, during the new- before Sept. 1981. re- ly evidence which he discovered New Trial notes § lies. 66 C.J.S. Am.Jur.2d, Trial, 481; 59, p. New State, 4, p. 375.” Salaz v. note
supra, has failed to meet that bur-
The defendant
den. appellant totally ignores the
Finally, granting court in
discretion accorded trial State, Opie supra, empha v.
a new trial. deci discretion. The trial court’s
sized this new is reviewable
sion to refuse a trial his judge discretion.
where the abused State, supra, Nothing in
Opie v. at 85. argument sug
appellant’s or in oral brief judge trial abused discre
gests that the
tion. conclude, therefore, the trial
We when he
judge not abuse his discretion did during for a continuance
denied motions
trial, when nor he abuse his discretion did motion for a new trial.
he denied a
Affirmed. *2 Jr., Urbigkit, George
Walter C. A. Whitehead, P.C., Zunker, Urbigkit & appellant. Cheyenne, for J. and William F. Michael Sullivan Downes, Brown, Drew, Apostólos, Mas- Sullivan, appellee. sey Casper, & ROSE, J.,a RAPER,b Before C. ROONEY, McCLINTOCK,c THOMAS JJ.
ROONEY, Justice. judg- appeals from a Appellant-plaintiff jury which found ment entered on a verdict negligent with ref- appellee-defendant not The mal- malpractice. erence to medical appellee, against practice action was filed County Memorial Hos- against Sweetwater Hooker, an em- pital, and James premised on ployee hospital. It was treatment alleged negligence in the medical connection with a afforded 26, 1981, par January continued to March but as of c. Retired a. Chief Justice ticipate in this case in the decision of the court pursuant March of the court entered order argument. Justice at time of oral b. Chief 30. 1981. frequently when and was en- as to how medical A directed verdict arm. broken Appellant.” and James hospital sought by in favor attention tered added.) Hooker. (Emphasis appeal as the issues on Appellant words presented us and Argument was follows: as to of these issues two trial court each *3 in rul- the trial court erred “A. Whether (1) reports protected respects: Were the reports by as an ing Dr. Harrison that by discovery appellant because of an were not to his insurance carrier insured (2) privilege? Were discoverable, thereby use precluding their discovery being as they protected from such dep- during pre-trial cross examination in product appellee? trial the work of trial, precluding and at as well as ositions protection ruled that existed both court when it preparation use in trial grounds. there appeared testimony in at trial that protec- judgment We affirm fre- as to when and how was a conflict discovery was afforded un- from such tion sought by quently medical attention i.e., concept, work we do der the Appellant. by the find an abuse of discretion trial in rul- court erred “B. Whether trial appellant- its determination prepared by ing reports Dr. Harrison (1) failed plаintiff to show substantial to a medical review and furnished by appellee- for the statements made need investigating an medical alleged claim of company to his or for defendant insurance discoverable, there- malpractice were not reports by made him to a medical re- by precluding their in cross examina- use (2) panel, and she was unable view and at during pre-trial depositions hardship without undue to obtain substan- trial, precluding well as their use as means, by equivalent tial thereof other as is appeared when it in tes- preparation trial 26(b)(3), required by conflict Rule W.R.C.P.1 timony at trial' there was a 26(b), Following tangible things limited with these follows: which is relevant to location of volved in the lates to covery description, of coverable matter. tion that the information missible at the trial if the information “(b) rule, ments and coverable under subdivision seeking “(1) for trial that other appears discovery of admissible “(3) any persons having knowledge attorney, W.R.C.P.: prеpared Trial Scope [*] regarding party other discovery General.—Parties reasonably the claim or Preparation; rules, order of party’s representative (including or for any of [*] nature, custody, tangible things consultant, party, including the pending discovery. and the books, documents, anticipation any pertinent portions another or [*] obtain It calculated to lead subdivision scope is not to the matter, action, defense identity evidence; court in accordance —Unless otherwise [*] Materials.— sought surety, subject of may ground (b)(1) claim or defense discovery otherwise condition and whether it re- [*] (b)(4) and location will be inad- litigation obtain dis- indemnitor, matter privileged, existence, for any dis- or other of docu- of Rule Subject [*] sought of this objec- party is as rule dis- in- for of subdivision of the materials discovery matter on which the testify, and to quired showing has been of facts known theories otherwise his case and hardship tive of a son whom the or “(4) the need of the insurer, shall impressions, each may require any “(A)(i) testify expert developed trial, may party seeking opinions Trial order protect opinion, * provisions, pursuant A to such restrictions as to or of an to obtain the substantial and a witness party may through interrogatories discoverable under Preparation; Experts. Discovery further agent) party concerning other : n materials that he is unable to which the conclusions, such state the substance of (b)(1) other be obtained (ii) Upon summary anticipation party only upon discovery by n : discovery other opinions materials when the re- trial, of this rule and disclosure party expects expert to or other * means. In to state the motion, expert opinions, identify made, held to subdivision is preparation without * showing other — expected litigation grounds representa- substantial provisions scope the court the court litigation; each to expected acquired ordering experts, or follows: * subject means, mental call as undue facts legal per- or of ruling was in form of The trial court’s The circumstances of this case are such appellant’s motion for an order a denial of propriety the determination of the compel discovery. The motion was made attempted discovery should be resolved following interrogatories were after on the basis of the failure of the fol- posed appellant to showing required make by ap- lowing responses thereto were made necessary to obtain W.R.C.P.2 pellee: work-product unnecessary material. It you any “10. Have made statements to (b)(4) application to consider of subsection agents your company, or to insurance pertain obtaining of Rule 26 as it could person in relation to the inci- opinions by experts,” “facts known and held Complaint dents set forth in the filed panel. 1.e. the medical review The issues so, please If the date said herein? state prеsented appeal here on have to do given, the name of the statement was reports by appellee. statements and statement, person taking the and the *4 attempted discovery, Although, appellant in present location of such statement. aspects concerned herself with more given statements “ANSWER: No formal panel reports than the medical review of though have discussions with counsel had Harrison, aspects Dr. the other were not representatives compa- and of insurance presented appeal. Appellant words each ny. February statements dated Written appeal, supra, having of the issues on as 24, given 1977 were to insurance 23 and “reports do with the of Dr. Harrison.” carrier. reports sought by The and statements physician, “11. Has other or tangible and are “documents physicians this case and the of reviewed which, things” privileged, if not are dis- therein, you treatment rendered for only set coverable under the conditions any purpose with a view to- whatsoever 26(b)(3).4 in forth determining negligence or lack ward negligence, with a view toward cri- or it is of this And consideration so, provided by you. If tiquing the care (Rule 26(b)(3)) pertains sub-subsection as it please physi- state the name of each such to the circumstances of this case cian, physicians, when such or ruling may affirmed. Even what, trial court’s occurred, reports any, if review if the statements to the insurance carrier of such review were rendered as a result reports present privileged, they, location of were not and the critiquing, and the reports. panel, such furnished to the medical “prepared anticipation litigation in or for Yes, panel was held in “ANSWER: * * * [appellee] or or for cooperation Wyoming with the trial State * * * my (including Society, my attorneys [appellee’s] representative Medical indemnitor, consultant, insurance carrier. All attorney, surety, his asserted.” work added) agent)” (emрhasis as des insurer or Then, 26(b)(3).5 ignated in Rule to be dis Appellant’s Request for Produc- “Renewed rule, two conditions coverable under the by appellee, appel- tion” was refused One, it be shown that must be met. must compel her motion to dis- lant then filed seeking recovery “has substantial party covery. rule, opinions concerning (b)(4)(C) expenses tain facts or on the same of this fees and may appropriate; deem as the court other means.” “(B) party facts known or A discover expert opinions has been 2. See footnote held an who specially employed by another retained or party litigation prepara- anticipation 3. See footnote 1. expected is not to be tion for trial and who trial, only provided as a witness at called in Rule al circumstances cable 4. See footnote 1. exception- 35(b) upon showing impracti- under which it is 5. See footnote 1. seeking discovery party to ob- by appellee. Aрril appel- once preparation On the materials need of where Hill Air Force Base she lant went to case,” two, un- “is who a Dr. Harold Jenson ar- consulted hardship to obtain without undue able orthopedic ranged appointment an materials substantial surgeon, subsequently Dr. Adams. re- She trial court found means.” The Base, at Hill Air Force ceived treatment were met of these conditions neither and, 27,1976, performed July Dr. Adams proper findings were appellant. The decompress her arm to the medi- surgery on case. of this the circumstances an nerve. here appellant states the issues As disagreement between The alleged necessity for supra, presented, testimony6 was in appellee in by triggered was fact (1) testified respects: Appellant three testimony trial there appeared in “it appellee. Ap- telephone calls to number when and how fre a conflict as to pellee Appel- recall them. could not all of sought by medical attention quently testimony unchallenged lant’s was therefore Appellant.” The record reflects (2) testified respect. Appellant this trial court basis the refusal sound appellee prepared a note for Jenson satisfy to find such be sufficient suggested a of treatment which he course requested discovery. including operation conditions for the pending two stellate “prepa been that she communicated in- material could not have blocks and orally also formation deliv- triggering if the of the case for trial ration” Appellee ered the note to him. testified at the Nor does the record *5 occurred trial. that he did not receive the information or showing that “the substantial support However, testified appellant the note. not, equivalent of materials” could he use the appellee stated would not treat- not, hard obtained “without undue was don’t anyway, ment inasmuch as “we do ship.” that, (3) Appеllee way.” testified on truth, frequency of the In times and 1976, 8, during by appellant April a visit (the information desired medical treatment (the and to his office last time her husband by appellant) appellant were detailed appellant) appellee said he had contact with chronology testimony. written her A appellee he told the husband that didn’t prepared by introduced into such as her was appellant why having was still understand Hospital and appellee’s records evidence. pain orthopod. that she should see an and placed to and office records were referred Appellant ap- and her denied that husband testimony was to the ef- in evidence. The pellee had recommended a consultation 11, 1976, March fect that fell on orthopod. They with an said that the con- her arm. went the emer- and broke She physicians Air Force tact with at Hill Base gency hospital room of where the break 13, 1976, April was on last plaсed on her arm was set and a cast was 11, appellee April with was on contact Hooker, Ap- assistant. by James a medical 1976.7 day the next in the pellee first visited her to an Whether or not referral ortho- month, following ap- hospital. During the appellee pod appel- and whether was the arm her
pellant pain suffered appellee lant’s contact with was last on discolored. fingers were swollen and She 11,1976, April April appointment or on an 8 contacts, by telephone and in had several 13, April made on 1976 nonetheless person, with James Hooker go Hill Air Force Base Hos- prescribed Appellee pain. 14, pital April where she was ex- her, cast was trimmed medicine for and the Dr. Jenson amined who referred her to Adams, replaced orthopedic surgeon. It was split about six times. testimony hospitalized Appellant designate Appellant City, 7. did not Salt Lake part May eventually Jenson and to be the record Utah оn surgery 1976 Drs. Adams underwent appeal. there.
333
possible
reports
der Rule
will continue to
It is
do
by appellee to his insurer and
state
so. Each case will
determined on its
peculiar
pres-
him to the medical review
facts.
the Rule
ments made
Under
panel may
ently
with his
have been at variance
worded the factors to be taken into
testimony
frequencies
relative to times and
account
in the exercise of the district
appellant.
importance
of medical
treatment
afforded
court’s discretion the
possibility
sought
preparation
But mere
or surmise in this re
it,
spect
showing
party seeking
does
constitute
and the
26(b)(3).
required by Rule
difficulty
obtaining
need
it will face in
sub-
“* * *
stantially equivalent
information from
[Although
is entitled to
production
sources if
is denied.
production of documents that would be
* * *”
Practice,
4 Moore’s Federal
witness,
§
impeach
useful
his mere
26-419,
26.64[3],pp.
26-421.
might
impeaching
he
surmise that
find
matter has been held not sufficient
City Corpo-
See United States v. Chatham
* * *”
justify production.
Wright
ration,
(S.D.Ga. 1976);
possible impeachment purpose. Stephens
“A court does
abuse
its discretion
Co.,
v.
Produce
Inc.
National Labor Rela-
unless it acts in a manner which exceeds
Board,
(8th
1975).
tions
“While some tor damages justice beyond concerning their estimation of interest of over and given award under cir fact that the material is relevant and not which would cumstances, clearly necessary to or their determination of liabil privileged has been documents, ity parties given circumstances. productions certainly of work and not quite broad discre Such is a form courts have exercised 34.[8] discovery. A medical application of Rule Un- any showing production good doc- cause for the Federal Rules 8. Prior to the 1970 revision of Procedure, required a ument. Rule 34 thereof of Civil agent of select category. The record these defendants to panel is the same attorney whether or not retain does reflect them.” organized a medical review also dissenting opiniоn is in accord with presented the to in evaluation of situation court, it adequately Wisconsin sets position. merits of her court in forth the rationale used by the proposition that statements insured finding that there
The trial court’s
carrier are not within the
re
insurance
attorney-client privilege with
was an
attorney-client privilege.
reports and
made
spect to the
statements
by appellee
insurer
was in accord with
The circumstances of this case do
general proposition as stated in Annota
departure
posi
any
not warrant
from the
Privilege
or re
tion:
of communications
tion of
the courts. The
liability
ports
indemnity
insurer
between
information was furnished to the insurance
insured,
not amount sought appellant the information she INTRODUCTION different; would be rather it to discover My principal disagreement ma- with the showing of substantial need reflects jority opinion pertains conclusion in order to part her for the information that Dr. Harrison’s to his insur- statements majority states that prepare her case. The protected er were under the had the privilege. Not do I trouble with have because sought to be discovered material conclusion, but I am also bothered own chron- compile able to her she had been majority also concludes the fact Harrison, her ological lists of visits with protected by statements Rule that the into evidence. such list admittеd 26(b)(3), interesting aspect W.R.C.P. The by the judgment, this conclusion my majority opinion is that it notes that conjecture and sur- majority is bottomed in privileged if a matter is under Rule when it is remembered that mise inquiry application then into of additional memo- permitted compare her never was 26(b) provisions unnecessary, yet ry events Dr. Harrison’s First, just does reverse order. ma- precluded discovering she was concludes the statements to necessary comparison. for such a terials protected the insured were under work addition, opin- *8 majority then I feel concludes that those same that the was privileged. Basically, appellant statements were the misstated what the ion has which, opinion its in to the medi- majority seeking addresses that in to discover relation words, panel. majority concludes unnecessary” own “is to address. cal review The encompass 26(b)(3) in this do not My for Rule the issues discussing reason the results or not the question question in relation to Harrison’s state- whethеr the ap- panel medical review utilized my to his insurer to conclu- of the ments relates subject jurists The discovery. to privi- pellee sion that the statements were issue, necessity at it was should out of have this conclu- majority the base comprising brief, that, majority the since Rule finding her been addressed the on a in sion 26(b)(3), of dis- is terms.1 the issue in terms W.R.C.P. to its appellant framed Dr. Har- reports prepared by compelled covering only these I feel to Based on factors I panel. review for use before the 26(b)(4) question rison address the Rule will appellant the the issue of what believe that so in do this dissent. the review to discover to desired approach Finally, I am disturbed with what she in terms of should be framed suggest to which seems easily be This can asked to discover below. appellant satisfy this case failed Interrogato- by referring to her determined 26(b)(3) obviously herself Rule because she ry 11 which read: Number attempt her own medi- made no assemble any or physician, “11. Hаs conclusion, panel. a cal review Such and the physicians reviewed this case me, light of is anomalous in least therein, you treatment rendered position plaintiff faces when any difficult with a view to- any purpose whatsoever malpractice I am sure pursuing a case. determining negligence or lack ward attorney in this any practicing state or cri- negligence, with a view toward in a mal- represented plaintiff who has a so, provided by you. If tiquing the care practice suit is familiar with the difficulties physi- each such please state name of litigation. preparing faced in for such am cian, pane] of when such physicians, or situation in contemplate not able a occurred, what, any, reports review if plaintiff malpractice case which a could rendered as of such review result group any given assemble a doctors from critiquing, present or location purpose reviewing a locale for the claim аdded.) reports.” (Emphasis being against one of brought which is me, seeking clearly To profession. medical members local physi- only discover not the names of the point realistic of view it should From participated panel, but also cians who in the would be conceded such a task be reports, any, if issued that were impossible if could impossible. Even be panel. request This the trial court what accomplished, be done at astro- could per- to allow and it is difficult refused expense. plaintiff nomical To hold the request language ceive how the of that such a burden in itself establish- this case to any differently. could be read It follows example “undue prime es a of such hard- above in order to conclusion that contemplated by the framers ship” as properly surrounding address issue 26(b)(3). of Rule panel, it was incumbent comments, I Considering would the above 26(b)(4), majority to discuss Rule W.R.C.P. appeal following have addressed position strengthened by This the fact manner. requested that since the names then, panel, on the order to doctors PROTECTED THE ARE STATEMENTS propriety request, determine the such a ATTOR-, BY THE FROM DISCOVERY 26(b)(4) consulted, must be because it PRIVILEGE? NEY-CLIENT governs attempts by party to discover W.S.1977,2 concerning adversary’s l-12-101(a)(i), ex- com- Under § perts. 26(b)(4) to his attor- my And since in view Rule a client munications attorney “(i) physician concerning portion provides: or a An 1. A of Rule W.R.C.P. by his client or made to him communication “(3) Subject Preparation; Trial Materials. — relation, patient his advice to his in that or (b)(4) of this subdivision attorney patient. physician The or client or * * rule testify express may consent client if patient, patient the client volun- W.S.1977, l-12-101(a)(i), 2. Section reads: tarily physician testifies the following persons testify in “(a) shall not subject-,” compelled testify the same respects: certain added.) (Emphasis
337
Graff,
53,
Brakhage
v.
190 Neb.
206
an
ney
embodying
advice from
those
protected
are
attorney
(1973),
to his client
45
the
Supreme
N.W.2d
Nebraska
waived
protection
disclosure unless
made by
found that statements
Court
sets out the
by the client. This section
defendant,
suit,
automobile accident
in an
attorney-client privi-
Wyoming version
protected
company were
to her insurance
Federal Rules of
lege.
passage of the
Since
company
the
was
insurance
deemed
Procedure,
Wyoming
which the
Civil
after
to
agent
attorney
the
of an
later selected
modeled, the
are
Rules
Civil Procedure
also
handle the insured’s case.
privilege has
scope of
attorney-client
the
that
that
stated
the fact
the statement
great
main
been a
concern. The
agent
to a
claims
to an
made
field
that
the
are
reason for the concern is
rules
attorney
controlling. 206
was not
N.W.2d
designed
embody
discovery while
to
liberal
approach
48. A
has also been
similar
privilege
discovery.3
the
acts as a bar to
Supreme
followed
the Colorado
Court
attorney-client privilege acts as
Since the
case of
District Court in
the
Bellmann v.
disclosure,
to
it
an absolute bar
County
Arapahoe
for the
suggested
has been
that it should be limited
District,
350,
Eighteenth
187 Colo.
Judicial
Wright
to its traditional contours.
&
(1975).
decisions con-
one of his attend the Materials. —Sub- Trial (b)(4) lawyer ject or the calls in his clerk of subdivision or confi- rule, secretary, presence party may discovery dential obtain of these this tangible things other- intermediaries will be assumed not to mi- of documents (b)(1) litate wise under subdivision the confidential nature discoverable consultation, prepared anticipation presumably of this rule and depend litigation would not be made to or for trial or another presence agent, party’s whether the clerk or that other representative (including secretary particular attorney, in- consultant, indemnitor, insurer, reasonably necessary surety, to the matter stance par- agent) only upon showing that the way gener- in hand. It is the business original complaint seeking need and before counsel was ty substantial *11 preparation hired, of his they prepared of the materials in the were in anticipa- not undue case and that he is unable without litigation. prerequisite of Thus a of equiva- to hardship W.R.C.P., obtain the substantial 26(b)(3), Rule has been satis- In lent of the other means. materials fied. ordering discovery of such materials Although vitally I concerned am with the been required showing when the has physicians position of in relation to mal- made, protect against the shall dis- practice relationships claims and also their impressions, of conclu- closure the mental carriers, their insurance it is also im- with sions, opinions, legal theories of noted, as the portant, previously consider par- representative or other of a plaintiffs they which difficulties confront ty concerning litigation;” (Emphasis the attempt adequate to obtain added.) To hold as prepare cases. nondiscov- Although specifically this rule mentions statements made a doctor to his erable prepared by party’s insurer materials company before a suit is filed and insurance preparation litigation in of for trial retained, unduly before counsel is bur- seeking unless the discoverable plaintiff’s trial. preparation dens the requisite showing of makes the 1446, Annot., Rogotzki 15 A.L.R.3d See need, the be requirement first that must Schept, 219 426 N.J.Super. v. A.2d met under rule is that the the materials (1966). prepared anticipation litigation or for Turning made Dr. the statements my trial. Based conclusion that the board, I before medical review Harrison the
statements
the insured to his insurance
work-product doctrine
conclude that
company
ordinary
were made in the
course
from
facts
apply.
apparent
It
does
is
business,
also
it would be inconsistent to
organized
was
at the
panel
the review
hold that such statements are made in an-
insurer,
also
of Dr.
request
Harrison’s
ticipation of
This
exact
litigation.
was the
ascertaining
whether
purpose
for the
Supreme
issue
come before the Kansas
patient
doctor’s
of his
not the
care
Smith,
Henry Enterprises,
Court in
Inc. v.
addition,
proper.
In
adequate
(1979).
225 Kan.
of business and record, it is clear Given facts litigation preperation or in for trial.” important prepa- reports were these P.2d at 920. appellant’s case. Earlier ration my opinion, Harrison stressed concern Since statements this position plaintiffs in mal- to his insurance carrier were made some 15 in which difficult Essentially, months filed her practice before Thomas suits find themselves. 26(b)(3), 4. The Kansas rule identical to Rule W R.C.P. or even who the any reports where layman to a amounts malpractice suit panel were. namely sitting on the expert, doctors
challenging qualified Schept, Rogotzki v. physician. defendant’s this, under the I conclude that light Jersey Superior Court New supra. The appellant has made facts of this case difficulty: described showing under Rule requisite of a defend- expert testimony “Where the in not the trial court erred supra, and that into issue as a re- brought ant doctor arising materials allowing discovery of the expert judgment, sult of his exercise meeting with the review from the *12 opinion relating to his discovery pretrial 26(b)(1), supra. under Rule in the course of judgment and exercise of THE THE REPORTS FROM WERE from is no different treating patient PANEL NOT REVIEW MEDICAL party any in which an adverse RULE matters, UNDER to hold DISCOVERABLE knowledge of relevant 26(b)(4), W.R.C.P.? would, particularly in a medical otherwise discovery of the facts to the review оnly purpose Although ever, impeach Dr. impeaching Dr. The materials ration of her case as a whole. sired the information for contain information that could be were, In the case at bar the to a sufficient amount crepancy in the facts arose as Moore’s was that she appellant by Dr. appellant was malpractice advantage.” 219 A.2d be able to ascertain what interchange between Dr. Harrison the central issue in this and what was and nature of the care Federal notes, panel. Harrison, appellant case, were also essential to treated thought showing under the rule. 4 if the Harrison, that was not her Practice, ¶ seeking Harrison. A It was put appellant was said at that appellant’s it would brought a claims that she at 436. important plaintiff Dr. Harrison and this information. 26.64[3]. reports case was the provided to when the not amount those For, purpose to major only meeting. to a dis- light used to seeking prepa- might How- claim facts dis- her de- el are terials 26(b)(4)(B), The “(4) covery been retained or by experts, otherwise pation of showing of another rule “(B) only as seeking discovery to obtain expected to be called as ions on the obtained der means;” preparation for trial and opinions [*] which it is protected appellee Trial arising from the medical A of facts known party may provided in Rule party in only as follows: acquired (Emphasis W.R.C.P., litigation or for [*] Preparation; exceptional circumstances held further claims from of subdivision impracticable for the same [*] anticipation of by specially employed or discover which added.) an developed in antici- discoverable subject by other [*] a witness at expert who has 35(b) provides: Experts. trial, may be facts or opinions that the ma- facts known (bXl) of this [*] under who is not litigation —Dis- under party trial, opin- [*] Rule pan- held un- by party preclude to is intended by him at This rule prescribed what treatment was expert obtaining information from an Additionally, the facts show from time. op- very specially hired an that Dr. Harrison was not clear as to who was witness testify going of his treatment either to posing party the dates and nature but who is not Thus, only depositions Wright in his or at trial. According to Professors at trial. way appellant to know what occurred Miller, designed protect the rule was panel was to meeting before the review by expert acquired information possession obtain of such materials as were only when expense, but party at his own meeting. indispensable is not expert testimony Miller, Prac- Wright Federal case, for trial. 8 & in his answer to Procedure, 2032. Thus tice and Civil: appellant’s interrogatory precluded dis- means, protect such information covery designed rule is of the information seeking it is assumed that the simply by refusing to ever tell the wholly of in- intertwined. One cannot sur- type disclosure can obtain the same other, expert some other vive without the deletеrious formation from impact upon either serves to affect present present field. The facts do not well-being situations considered the drafters. Here health and of both. way
there was no other perceive effect that I am able to know what went on before the review extending attorney-client privilege reports arising could obtain the unless she adjustors statements made an insured to Rule Additionally, therefrom. representatives or other of his insurance 26(b)(4)(B), to the she was at least entitled company, required which are to be made sitting pan- on the physicians names of the cooperation poli- clause in the insurance Only sitting those doctors on the el.5 cy, is that the extension of the knew what was said and this inhibits the search for the truth. To the Thus, I acquired way. in no other could extent the truth remains obscured 26(b)(4) was not de- conclude that rule, justice indubitably virtue of such suf- situation, and signed apply present attorney-client privilege in its fers. The reports protected were not from dis- development appear historical does not *13 provisions. covery under its designed to reach this situation. The be respect development history with to the CONCLUSION primarily seems to relate approach I this case is the my believe protection right of individual of the only way policy this court can further not to be a witness himself. of full and fair disclosure embodied in the cases, however, modern civil he cannot Wyoming My Rules of Civil Procedure. right, and as McCormick re- claim such grave misgivings brought and substantial marks: opinion majority’s have necessi- “ * * * Now, however, when the my filing tated this dissent. as a knows that he himself can be called adversary, danger witness THOMAS, Justice, concurring part impor- to counsel is less disclosure dissenting part. Evidence, 87, p. § tant.” McCormick persuaded I whether the state- am 1972). (West Publishing Co. product made to and the of the medi- ments jurisprudence, while our this state Given are cal pro- undoubtedly will continue to tradition of discre- a matter best left to the exercise privilege between clients and attor- tect the tion the trial court. I can find no Since extending it be- purpose I see no neys, instance, abuse of discretion in this I relationship even particular yond that aspect majority opinion concur legal fiction. holding protected that those matters are we important To me it seems more work and did not instanc- searching for the truth in should have to be disclosed. structuring an as this rather than es such however, agree firmly, I most with the truth. It inhibition to that search for Rose in his views set forth Chief Justice protecting the statements clear privi- dissenting opinion respect to the company or insured to his insurance by an opinion extends to lege which the agents representatives, its agent the statements made privilege, will guise of the join in that company. I therefore insurance adjust who are so inclined assist those adding dissenting opinion, aspect of his to their operative events version of my own. these brief comments regard what advantage, without carrier. On their insurance might have told justice twins are Siamese Truth hand, who are not so to those inseparable legal They craft. Miller, applicable which is identical Wright to our rule suggestion & is made in 5. This above, interpreta- federal rule. cited and deem any differ- possibly make inclined it cannot in identi- tool also that this is available
ence just result. truth that to a leads
fying INC., SYSTEMS, BUILDING
KIRBY Corporation, Appellant
Texas
(Plaintiff),
v. PARTNERSHIP NO.
INDEPENDENCE
ONE, Wyoming partnership, Zions Bank, Clydeco Build-
First National (Defendants).
ing Supplies, Appellees
No. 5500.
Supreme Wyoming. Court of
Oct. Reed Blythe, Cheyenne, and C.
Daniel G. *14 Rawlings, (argued), Armstrong, Brown Utah, Brown, City, Salt Lake West & Barnard, Evanston, appellant. Bruce R. Lancaster, Phillips Lancas- W. & Dennis Evanston, ter, C., appellees. P. ROSE, RAPER, J.,C. THOMAS Before ROONEY, JJ., SAWYER, D. J. RAPER, Justice. dismissing appeal is
This from an order lien. to foreclose a mechanic’s an action us whether the The issue before concerns correctly found as a matter district requirement notice 29-2— law that the W.S.1977, That stat- was not satisfied. provided: ute person, original con- “Every except tractor, himself of who wish to avail of this act the benefits 29-2-124], give shall ten 29-2-101 [§§ notice, filing (10) writing, days before owner, lien, required, as herein them, agent, owners or either hold he a claim building improvement, stating in said