*1 824
ment of Employment now,
past,
grounds
or in the
majority
which the
based
promulgated
a rule providing
the award:
that
when a claimant has received a favorable
I concur in the
result obtained
decision from an administrative decision of
i.e.,
majority,
the Commission’s
Department
of Employment, and that
award of unemployment benefits should
decision has been appealed and the claim-
be affirmed and
attorney’s
fees
ant’s
affirmed,
favorable decision
appeal
in
should be awarded.
such
Department
case the
Employment
Plante,
814,
supra,
hearing, asserts explain that therefore does not it desires to how this Court denies attorney attorney’s award fees to the in fees in claimant Ullrich but awards them case, in decision-making instant Plante. The prevented pro- but that it is entire cess is doing suspect. Only thus laid in original so consist- Court’s ency justice. and reason lies wherein it is noted that the Court awards no attorney appeal. fees on One is reminded of applicable state- ment: appeal
We hold that the instant was not evil, however, brought most intolerable frivolously or un- without foundation. der which we have past lived for the Therefore the standards Minich v. Gem twenty-five years, changing has been the Inc., Developers, 911, State 99 Idaho 591 shifting judicial character of our de- (1979), met, P.2d 1078 are not and this cisions, by deprived which we have been Court does not therefore make an award of judicial of the inestimable benefit However, attorney fees. if Depart- precedents safeguard rights as a to our Employment ment of desires to neverthe- person property. pursu- less make an attorney award of fees rules, Modifying doing passage slightly ant to it is its not barred from short- interval, er time so. I add that as a Court day display stability we this do little to jurisprudence the science of where case DONALDSON, C.J., and BAKES and law is involved. HUNTLEY, JJ., concur.
BISTLINE, Justice, concurring dissenting part. agreement majority am with the Department Employment
view that the
attorney’s
if
can award
fees
it wants to do
award of fees was disagreed with
although Shepard Justice *2 Clements, Clements,
Reed Brown & McNichols,Lewiston, for cross defendants- appellants. Chenoweth, Orofino,
Nick for cross claimant-respondent.
SHEPARD, Justice. appeal is an from a denial of a This notwithstanding motion for following trial or a new trial verdict Zolber, Clayton in favor of verdict claimant-respondent. cross We affirm part, part, reverse in and remand for new damages. only on the issue of through Highway 12 runs eastward U.S. portion of Idaho to the Idaho-Montana cafe, Syringa line. A roadside state Cafe, Highway located beside U.S. day in November cross defend- On a parked ant-appellant Winters had a truck in the cafe and two trailer combination to enter U.S. parking lot. He intended proceed easterly. He Highway 12 and parking lot onto turn from the made a left provided this accident easterly Highway lane of 12. Two fect at the time of preceded other trucks had Winters from that: parking traveling east on lot vehicle ‘The driver of a about enter Highway 12. distance east of U.S. Some roadway any place or cross a the cafe is the crest of an incline U.S. roadway yield other than another shall time, cross Highway 12. At that same right-of-way ap- to all vehicles *3 driving claimant-respondent Zolber was a roadway proaching on the to be en- westerly approaching in direction truck a or crossed.’ tered Syringa As drove over the Cafe. Zolber statute, regard you are “With to road, in the he saw the crest of the incline that when one has instructed further truck, which was still Winters’ one-third of lawfully gained entry upon high- Zolber, apparently in the westbound lane. roadway, way vehicles another vehicle, stop off the to his went unable period approaching in the interim be- ditch, road, through parking a across completion tween commencement and lot, by Donald struck a truck owned duty be under a crossing There was no contact between Denton. stop either slow or to avoid colli- trucks. Zolber and Winters’ added.) (Emphasis sion.” Zolber, brought against Win- Denton suit Rather, first instructed the the court ters, Transport, Builders to recover for 49-644, provisions of jury as to the I.C. § parties settled damages to his truck. The instructed: and then Denton and trial was held on the cross with one has “You are instructed that when damages he sus- claim of Zolber for the highway compliance in with the entered a
tained in the accident.
fashion,
non-negligent
in
driv-
law and
contended that the two
At
Zolber
period
interim
be-
approaching in the
ers
preceded
out of
trucks
had
Winters
which
completion of
commencement and
tween
Zol-
parking lot had obstructed
the cafe
entry,
ordi-
required
are
to exercise
truck until Zolber
ber’s view of Winters’
(Em-
safety
all.”
nary care
to be able
close Winters’ truck
was too
added.).
phasis
argued
trial that the
stop.
Winters
at
appeal, instruc
is clear that on
supposedly obstruct-
It
preceding trucks
two
to deter
enough east-
must
viewed as a whole
ing
view were far
tions
Zolber’s
be.
properly and
Highway
jury
12 to be of no obstruc-
was
ward on
mine whether
Bushnell,
that Zolber could have
adequately
tion to the view and
instructed. Davis v.
(1970);
on the
528,
have seen Winters’ truck
and should
P.2d 652
Blaine
93 Idaho
465
(1967).
entitled to
highway,
665,
and that Winters was
827 highway was entitled to enter the in re- We hold that the in the instruction duty liance of Zolber to instant case was correct in the utilization of slow stop ordinary care appel- to avoid an accident. standard. As stated Therein Peterson, 728, 731, Holland v. 95 rely upon Green, Idaho lants Reed v. 90 Idaho 1190, (1974): 518 P.2d 1193 526, 535, (1966), 414 P.2d 450 states: “Although appellants requested instruc- general tion is a correct statement of the view, approaching “With no vehicles law, Hickox, Coughran Idaho right Green had the to commence cross- (1960), 348 P.2d the court did not err highway at the time he did. The refusing give adequately it since it distance of his unobstructed view subject covered the same in its matter negli- such that it cannot be said he was negligence____ instructions For the gent. crossing highway under given appellant’s requested court to have circumstances, fully these he was com- nothing instruction would have added
plying
lawfully
with the law. After once
merely
new to the case and would
gaining entry upon
highway,
the
vehicles
been redundant.”
approaching
period
in the interim
be-
completion
tween commencement and
Appellants
by
next assert error
crossing
duty
were under the
either
admitting,
objection,
cer
trial court
over
(Citations
stop.”
to slow down or
omit-
photographs
videotape.
tain
and a
ted.)
photographs
videotape were introduced
and
testimony
during the
of a reconstruction
Therefrom, appellants argue that
re-
Reed
expert. They were taken in November
vehicles,
quires
approaching
as
drivers
accident,
1983,
years
five
after the
some
Zolber,
only
ordinary
exercise
impact on
and were offered to illustrate the
specifically
stop
care
but
either slow or
visibility
the forward
of Mr. Zolber of
a
avoid collision.
oncoming
other vehicles in the
lane of traf
Bushnell,
As stated Davis
93 Idaho
v.
fic.
531,
at
Costs to No appeal. III. BAKES, DONALDSON, C.J., and J. con- First, straight, it is setting the record cur. one important to observe a distinction—not HUNTLEY, J., separate in the concurs producing a difference—between without BISTLINE,
opinion of J. introducing at trial and documents Justice, BISTLINE, concurring in The documents into evidence. regard. De- part. markedly lax in that dissenting opinion is requested of Interrogatory No. 5 fendants’
I. all plaintiff: “Please list exhibits identifying at trial by you produce intend to opinion authored Jus- I concur answering, the such exhibits in detail.” disposes of those as- Shepard which tice stated, 23, 1983, alia, inter “All on November tiff’s counsel you copy.” letter, of which have a As to purpose found in its primary Dr. testimony, Bathurst’s the defendants’ supple paragraphs,1 first of two Interrogatory thusly: No. 1 was worded attorney defendants’ ment answers which name, “Please state the address and tele- earlier, days responsive had submitted two phone every person number of each and my plaintiff’s interrogatories. While for you expect your to call as witnesses on part I to feel that defense own would tend and, regard behalf at trial of the case with apprecia expression counsel’s advance each, give summary detailed tion, copy Dr. were he to receive a testimony expected given such report, Bathurst’s is entitled to the courte witness.” The first of the five witnesses sy reply, requisite of a it does not have the listed in answer thereto was Dr. Bathurst. formality request of an actual —and That answer in is as follows: full game point up appears to have been Physician a. Dr. and Sur- Bathurst — played by the rules. Such also true with geon, Ave., 2, 421 Coeur d’Alene Suite respect to the indication of defense coun d’Alene, 83814, (208) Coeur Idaho 666- sel’s plaintiff’s characterization of the an 2479. Dr. Bathurst will as to the rely swer that Dr. Bathurst will on all diagnosis prognosis Clayton and the other medical that have been taken injury. Zolber’s back Dr. Bathurst will forming opinion in this matter an as to utilize thermography both and cat scans injury extent of and causation the truck indicating injuries. Dr. Bathurst ad- accident. ditionally will on all other medical
reports that have been taken in this mat- however, Similarly, my observe in foot- forming ter as to the extent of supra, gave note that defense counsel no disability injury created guarantees: may “I call Owen Smith of disability likely whether said more than therefore, testify____ may, Kooskia to not arose from the truck accident. Dr. depart- call Bob or someone in his [Elven] give Bathurst will extensive ment as to such documents and criteria relating injury to both soft tissue criteria, signing, as [records accidents— presence pain in Mr. Zolber. Addition- etc., distances, sight, of areas within line of ally Dr. present Bathurst will relate the etc.]. condition of disability Mr. Zolber’s turning Before to the remarks of the apparent reasons Dr. therefore. Ba- passing court on the defendants’ thurst x-rays explain will utilize judgment n.o.v., compression motions for new fracture or for a of the number twelve dorsal input gained vertebra and how such an some additional is to be injury can create and contribute to soft by observing opening statement of injuries tissue in both the muscles and counsel, respectively, related tissues. back presenting for the defendants. After who be, liability witnesses on Not one other medical doctor was listed. plain When defendants’ counsel testify, plaintiff’s wrote to and to what each would paragraph Highway Department you first of the November Elven of the since and, therefore, letter reads follows: had contacted him had not supplement listed him a This letter is to Answers to In- as witness since I wanted him to terrogatories you Monday, produce which I sent to records as to accidents site of at the *8 criteria, November 1983. In addition to the wit- sign- this accident also as to the Interrogatory etc., nesses listed in Answer to No. ing, sight, of areas within the line of Kooskia, may telephone I call Owen Smith of distances, etc., and criteria which would re- 926-4138, testify physical 926-4127 facts to as to quire approaches appro- a reroute of and/or immediately following the accident priate signing therefore, oncoming may, to traffic. regard- the remarks Mr. Zolber made to him depart- call Bob or in his someone ing braking ability of his truck as affected ment as to such documents and criteria. Also, the fact that the brakes were wet. anticipated I had added.) (Emphasis you going to call Bob proceeded expected counsel mentally outline testi- This retained in connec- mony injury: relative to observation, tion with the trial court’s after verdict,
A Mr. or a Dr. Bathhurst will be called and after that a defendants’ plaintiff. on behalf of the His motion for a continuance was an available testimony will revolve around several if remedy thought they the defendants had things. important things One of the inadvertently been or purposefully preju- happened in this case that is hard to by plaintiff’s diced nonintroduction of the believe is that Mr. Zolber had a back— and/or Dr. Bathurst’s non- broken back for six months before it was opening use of the same. The statement of X-rays discovered. The will show that reserved, defense counsel was not but was right the number T-12 dorsal vertebrae immediately following made plaintiff’s. (indicating) here was fractured. It was a That statement confined itself to a forecast compression impact fracture from the of expect- of the witnesses and to what it was going forward. That was discovered testify. ed each would The entire state- approximately a Dr. Hinman six months non-liability ment was confined to of de- after the accident. Mr. Zolber was still plaintiff’s injuries fendants. The extent of working at that time. He could not damages and resultant went unmentioned. up. stand He hunched was around. hearing argument After from counsel on X-rays The will also show other two motions, post-judgment the trial court things. narrowing One is a of the C-5 spoke length, incisively: numbering and C-6—all that is is happen- vertebrae the back. What’s “I realize that counsel for the defense feels getting is those vertebrae are closer sincerely upset impressions over he had together pain gives you and the resultant prior I—in to this trial and a sense it’s not Additionally, a stiff neck. there will be just a matter of whether or not defense L-4, testimony about an which is the impression. had an incorrect The (indicat- right bottom of the back here question impres- real is: Was that incorrect ing), pars go defect. We’ll into what a product sion the of some kind a beha- pars defect is with the Doctor. But plan plaintiff vioral on the the—on injuries these him caused severe misimpression. to create a Because if it problems pain. of severe wasn’t, course, then, course, the de- testimony by There will be Dr. Bath- open discovery fense has its avenues to it pain. hurst about that He will utilize a to discover what it will meet at trial. diagnostic thermography. new toll called short, any misrepresentation if in fact thermography many you What is— events, perceives which the defense probably read in Newsweek or Time—is having, if itself as that flows from the picture body. a heat It will show themselves, then, natural events that’s the differing blood flows or lack of blood operates. way system up It’s not thermog- throughout body. With his prevent confusion on the raphy many he will show—while other defense, if facts themselves doctors were not able to determine the confusing. are Zolber, injuries Mr. he extent question deposi- “The—there is that a no was. three was taken from this man some tion Zolber, accident, pre- Mr. after the years this trial took and half or so before pain pills. scribed He’d never taken place. question And there is no that the like the of them. those and didn’t effects deposi- that he testified to at that prescribed condition pain pills that he was that, found Regardless to differ from the condition doped up. him tion had after he had to re- trial. This is months the accident on the date of this family turn to His was in need way work. But does that some undeniable. and he had no other choice. trial? go through him another force
Tr., And that I cannot see. pp. 13-14. *9 November, presen- “The involve the rate of inflation in this defense notified some three present months the trial start- val- tation. order to determine before ed, only that a Dr. Bathurst would be the Now, certainly put ue. that has to medical witness called in this case. And talking going we’re to be on alert that Court, the defense has informed the as the So, possible it’s about the future. while indicates, record so that numerous other may only that counsel determined plaintiff. Obviously doctors this that saw be the first of March that the future would defense, something communicates to the importance presentation, to this some my opinion. And what it must communi- wages, meaning certainly future there going say cate Dr. is that Bathurst is objection was no at the time something why different. re- Otherwise being with this on the basis of confronted person sort to the one who has not shown surprise. So, up prior in the case to that. when the through “We went the whole trial. We judg- defense determines that in its best for de- obtained a result and now counsel discovering ment it’s not worthwhile what fense like me to force the going judg- Dr. say, Bathurst is that’s a through you a whole other trial because right ment call the defense to make unsatisfactory. find the result That is— expect go through but it can’t Mr. Zolber be minimum could forced judgment two trials after it makes that plaintiff, Interrogato- if I found that these only call. Mr. still forced to Zolber can be way intentionally ries in some misled the go through one trial. defense, postpone his would be to trial. indicates, think, “The I as I un- defense you ample bring in wit- Give time to other your position, concept derstand possibly prevent the testi- nesses or even wages going sought— that lost were to be mony being go through from used. But to wages sought going lost were to be future then ask another entire trial and surprise. it I find that entirely by took one, remedy, acceptable not an difficult to it- understand from the record you surprised, even this from if self, let alone from the letters that tran- that. I record cannot find find spired doing that indicates he’s some work. opposite. you That are correct. letters, independent But which I necessarily compliance don’t feel are judgment calls about “You made discovery re- comply with some sort of of this case what was the status extent quirement. We do have somewhat of calls, developed as it and those procedure formalized needs to be here that according to the and the evidence that complied Supple- with. And there were developed, turned out incorrect. And that Interrogatories Supplemental mental again. grounds is not to do the trial — Interrogatories The first Answers to filed. process sup- “It’s true that this is not one that was filed indicates that at surprise. posed proceed on the basis time, 16th, the point February surprise. witness- But I do not see the use an plaintiffs have determined to disability condition es who testified note that economist And I as witness. consequences were and to economic its given. telephone number is the economist’s Nor were surprise not a to the defense. Lyman, the econo- And it indicates that Mr. They testimony. of their the substance mist, Mr. Zol- income will as to the any defense in from the were not concealed had the accident would have had ber fact, Interrog- And, Supplemental way. it indi- goes further and occurred and indicating prior to trial atories were filed me, then an- pardon either in cates that — changes in their testimo- enlargement and filed, which Supplemental Answer other ny. will use that the economist indicates I see in what “I can conclude stream which shows a exhibit from flow an ut- And, plaintiffs behaved in this case the disability. periods alleged Now, it’s manner. then, may terly straightforward used to graphs indicates *10 possible spite plaintiff’s that in be- they tion. I found that generally indicated having in straightforward a manner the of the truth his assertions that he had been totality of coupled the defense the with injured seriously and had suffered a bro- judgment calls of produced defense counsel ken back. And I do not the behavior find misimpression part a on the of the defense. plaintiff, failing to use those of possible. is That I cannot order a new trial documents, was in way some sort some of happens. that I dispute because don’t And plan prevent a to their arrival happens. it that your That’s assertions Because, I say, trial. as when I read them I dispute have no reason to it. You I them being don’t see as all damaging that plaintiff through force cannot a a trial be- plaintiff’s position. opposition cause counsel for the was misled “Ultimately the trial I unfolded and was there was when no effort of confronted with a situation where counsel anyone plaintiff's on the to side cause that requested the introduction misleading I to occur and in fact don’t find defense for evidence, any into not incomplete. purpose answer a limited for whatsoever, any purpose but for doc- “Finally, discovery the nature of and its uments contained an enormous in controlling develops that use the trial hearsay amount at a time when it very generalized forces counsel to of be impossible been plaintiff would have for to their prac- answers. Defense counsel has hearsay either produce rebut longer ticed law I substantially than have. cannot, very speaking through witnesses who were responding A to dis- covery, detail those documents. Those specificity with enormous documents precisely what a witness purpose will to never offered for the limited running having without risk of testimo- allowing testimony to evaluate the So, ny necessity, excluded at the trial. developed of Dr. Bathurst as it you give description must a broad what .Because, course, documents. he didn’t likely is to occur at trial. And that means documents. on those necessity Interrogatories that of must precisely predicted. can “No trial be All inbe some sense an effort to foretell the develop strange in an trials unusual and trial, something future which is no one is way simply unfold. And I cannot as precisely capable doing. That counsel new trial here because counsel for order a thought at the time he answered initial expected plaintiff par- a defense use Interrogatory three months before the trial ultimately it not ticular exhibit and present question that he would a to his in evidence. introduced posing involving hypothetical witness a all doctors, past opinions of other great my given thought “I’ve deal of thought he that in November but chose not refusing ruling to introduce those exhibits grounds do it at the time of not a And I into evidence. even now feel a mistrial or These are for a retrial. tacti- had I introduced them that would have decisions that each side cal are made plaintiffs error had the been reversible why I know unfolds. cannot de- unhappy with the been outcome pose chose to fense fail I convinced not it was a case. am hypothetical based other doctor discretion, my sound matter vested That’s a decision he doctors’ evidence. where their was a matter introduction through I I makes. noted as looked these would clear error. be records that those records concluded that just reasons I’ve I “For the indicated hearing plaintiff had loss suffered wholly inappropriate think it Something aas result this accident. I’m grant a Motion for a New Trial. And plaintiffs which the made no claim. for go prepared to make the find read those records I did not them As through that. particularly damaging to the defendant’s added). “Tr., me, posi- pp. (emphasis 751-57 position pardon — The defendants’ motion as to the nature *11 n.o.v., trial, would, alternatively in plaintiff’s injuries for a new was extent of grounds reasons, fact, on applica- reports. based and upon as be based said an analysis majority opinion: ble to R., added).2 pp. (emphasis 186-87 Turning to defendants’ brief filed in this
I. Court, presented the statement of issues on error, appeal assignments raised these of irregularity proceedings That in the oc- opinion:3 applicable to as the discovery process in in curred the and presentation the of medical evidence and concerning
other evidence the nature and III. any injury damages extent of and to in refusing The court erred to admit question, the from accident 1 consisting Defendants’ No. of Exhibit whereby preju- grossly defendants were treating Respondent’s medical of prevented having and a fair diced by evaluating physicians supplied and trial. pri- the Respondent’s counsel to defense Respondent’s
or to which II. declared, pre- in personally responding to discovery interrogatories, Surprised That the defendants were re- medical to for sole witness presentation and mislead as to of Bathurst, spondent, Dr. would unanticipated unexpected evidence diagnosis prognosis for his and- regarding plain- the nature and extent of would, fact, produced said in be injuries damages compared tiff’s as at trial. plaintiff’s Complaint to the claim of way pre-trial discovery by as reflected in IV. plaintiff’s deposition, re-
of the medical ports by plaintiff’s furnished counsel and refusing grant in The court erred plaintiff’s Interrogatories as Answers trial based on the aforementioned new specifically in set forth the affidavits surprise of law and on errors simultaneously by filed ref- herewith and by were Appellants subjected which the though erence made a hereof as misrepresenta- their reliance on specifically set forth herein. respondent’s attor- tions contained interrogatories con- responses to
ney’s cerning the evidence. IV. Brief, Appellants’ pp. (emphasis 15-16 added). deny- likewise ... Court erred upon comparing grounds declared medical re- the introduction in the court moving for a new trial lower plaintiff’s prior physicians ports assignments of error declared on two with moved defendants’ counsel Court, apparent in this it is once plaintiff’s upon in view of counsel’s occasions claims indi- that defense counsel interrogatories which answers to first level that he was the victim would, be at this fact, time cated said exhibits upon him practiced misrepresentation plaintiff’s by plaintiff offered refusing alleged a defend- damages ap- No. I error in Paragraph alleged Issue 3. III excessive alleged requested Issue No. II ants’ instruction. given influence pearing under the have been photographs and of the still error in admission prejudice. portion A Para- passion However, appeal tapes. there was no video give failing alleged graph IV error in law in itself, such for which reason from assignments requested Paragraph V al- instruction. defense subject appellate only justify insufficiency leged evidence appeal with the in connection review taken, verdict. post-judgment mo- from denial tions. plaintiff’s very argument counsel. is a This seri- Not did the of defendants’ contend, brief so but charge, ous relied goes beyond and for certain case very proposition: from Arizona for that “irreg- the claim made in the trial court of The case of Zier v. Dairy Shamrock ularity discovery process ... ... Phoenix, Inc., Ariz.App. 382], 420 P.2d [4 whereby were grossly preju- defendants (Ariz.1966) precisely point. diced [Paragraph surprised ... I] There the doctor who had tes- and mislead [Paragraph II].” surgery tified to the need of for the While the authored Justice testified on cross-examination *12 Shepard does not address the trial court’s that he had considered certain consult- ruling reports the medical were not reports arriving diagnosis. ants at his admissible, denying it reverses the order reports These consisted of letter writ- n.o.v., alternatively or for a new consulting physician ten and three trial, on the basis that the defendants “had x-ray reports from another doctor. right accept the to the answers to the inter physician Plaintiff’s testified that he had reports rogatories following considered the as true.”4 But do I which nowhere he was examined on their contents and anything brief find defendants’ substan reports the were offered in evidence and tiating Shep the statement made Justice vigorous objection plain- admitted over opinion “argue ard’s that defendants that it The tiff’s counsel. Arizona Court ac- important was also for them to if know knowledged reports the would be reports would be introduced these medical hearsay rendering as the doctors the re- ____” contrary, my reading On the of that ports would not be available for cross-ex- brief tells me that it was defense counsel however, trial; during amination the the planned introducing who on the medical reports court held that the had been con- reports of the other doctors who had seen testifying sidered the doctor and that plaintiff: the treated reports used the were and their admis- Had Dr. Bathurst relied said re- cross-examination, during sion occurred ports forming opinion as to the purpose the of such cross-examination disability extent of the created being reliability the truth and test injury disability and whether said more what has been said on direct. affirm- likely than not arose from the truck acci- admitting ing the trial court’s order said dent as Zolber’s counsel informed de- held: reports the court testify, reports he would fense that question why re- “The the doctor would have been admissible for cross-ex- reports was raised when he jected the purposes would also that he considered them. amination admitted had the The counsel for defendant Zolber impeached both right inquire into his reason so the injuries. and his wife as to such Keppel’s of Dr. conclusion could force Brief, pp. 51-52. Appellants’ reports The could be admit- be tested. here the three offered been Had though they purpose for this even ted diag- in his upon by relied Dr. Bathurst truth of the not evidence of the prognosis as Zolber’s nosis expert opinions stat- alleged facts and by the re- the defense to believe led To hold otherwise would ed in them. interrogatories to the sub- sponse made say could not test that counsel mitted, themselves would given on direct examina- expert opinion admissible. have been presenting witnesses of except by tion opin- conflicting expert Brief, own with p. their 55. Appellants’ given by Zolber’s counsel as point accept the answers argument on this 4. Defendants' brief independent forego production of duty true defense was under no ascer- this: "The Brief, pp. Appellant’s testimony." 47- interrogato- responses tain whether They right 48. in fact true. had ries were disability witness as to “whether said opportunity to test a ion. injury 420 P.2d at was attributable from require that.” does not giving truck accident” rise to the contro- versy. report That is the of Dr. Blaisdeli. Brief, pp. 52-54. Appellants’ three-page report His is broken into seven majority opin- large problem with the A component parts topical with these head- entirely willingness its ion is ings: HISTORY, AND COMPLAINT brief, defendants’ argument of HISTORY, EXAMINATION, PAST X-RAY deigning to mention does while REPORTS, AND LABORATORY DIAG- district reasoning of countervailing NOSIS, RELATION OF TO DIAGNOSIS trial. motion for a new denying court INJURY, Complaint and DISABILITY. instance, defendants misread For History recites the collision of Novem- IWhile do plaintiff’s counsel. letter 28, 1978, ber remarks on inadvertent, stemming it is not doubt present complaints. X-ray Laboratory natural inclination advocate’s only from an Reports’ remarks full are these: favorable to things light in a most to see X-RAY AND LABORATORY RE- *13 champi- being cause is client whose x-rays, accompa- PORTS: Various which argu- oned, the defense main theme of office, patient nied the to the were re- be an letter is said to is that ment x-rays viewed. These show that he had reports would doctors’ “that three advice compression minimal fracture of Dr. Bathurst that produced at body of the 12th dorsal vertebra. rendering his in them addition, slight degen- there is minimal to Brief, p. Earlier Appellants’ opinion.” joint involving erative disease mid mind brief, in this: “It must be born in that regions and lower cervical as well as the the answer Mr. Chenoweth made spine, entire lumbar more severe inferi- Dr. Ba- interrogatory was not orly superiorly. than reports ‘may rely’ upon thurst the medical Defendants’ Ex. 1. rely’ but the fact that he ‘will on Diagnosis as to in his forming opinion in full: reports medical disability.” Appellants’ the extent Musculo-ligamentous DIAGNOSIS: added). Brief, (emphasis p. 44 sprains involving the cervical and dorso- lumbar aggravated areas which have interrogatory, how- The answer to pre-existing degenerative joint disease. again it ever, Repeating was not so stated. Minimally compressed fracture of the lifting page 43 of defendants’ it from body of the 12th dorsal vertebra. (appellants’) brief: Diagnosis Relation of Injury full: rely on additionally will Dr. Bathurst reports medical that have been all other IN- TO RELATION OF DIAGNOSIS forming in this matter taken degenerative joint disease The JURY: disability created as to the extent however, pre-existed injury, disability injury and whether said by this injury producing aggravated by the been the truck likely arose from more than not and low pain in both the neck chronic added.) (Emphasis accident. of the 12th dorsal The fracture back. certainly it as reword the result Now,.it a second to vertebra is almost takes but argu- writing responsible their for tender- injury and is read by defendants ness at this level. ment: rely on additionally will Dr. Bathurst Hinman, Dr. of Lewiston report The have been reports that all other medical Associates, colli- recited the Orthopaedic his forming opin- in this matter taken incident, com- stated the sion disability the extent of the as to examination, ion of the date of the plaints as injury whether said by this created approximately mentions also a fall of likely than not arose from disability more year ago, and the results of the usual ob- truck accident. jective testings, x-ray disclosures of There are the three narrowing, some disc wedging and a Only record. T-12, one of those compression contains “consistent with a frac-
ture, age undetermined” resulted this for another six to twelve months. So far impression, any opinion but without determine, as I am able to no harm could likely based “more than not” as to working despite any come from his dis- any diagnosis relation injury: might comfort he have. Mild, degenerative IMP: disc disease absolutely I cannot be certain at this consistent with age; compression his point, but I nearly positive am that he T-12, undetermined, age fracture of any significant disabling will not have probably related to the described truck symptoms resulting injury. accident. believe his neck and Brief, Appellant’s p. ix attachments symptoms back been aggravated by have added). (emphasis However, the described trauma.
physical findings are less than his far Simple inexpensive interrogatories written described discomfort. propounded by defense counsel to those
Defendants’ Ex. 1. doctors would have assured the defendants the ability to have allowed the evidence report, by Doyle third Dr. Colin wanted. The suiting verdict not Ear, Valley Eye, Nose and Throat Clinic defendants, as a basis charge for their hearing per- concerned with loss misrepresentation, misreading plain- haps injury attributable to suffered tiff’s answer to the interrogatory as to Dr. accident, trucking hearing but which loss Bathurst, they ably major- motivated a pursued was not at trial: ity of this Court n Heis evaluated findings into contrary to today persist- because made the district oblig- court. An ent tinnitus which came on about the ing majority aids enterprise by twice in time of the accident and has not abat- *14 ed____ same equating producing the The tinnitus is of combined etiol- reports at promise trial as a plain- that the ogy. component I am sure there awas tiff would introduce the same into evi- accident, present prior to the but the dence. spasm resulting cervical muscle from the- injury significantly increased the tin- Having heard from defendants, nitus. court, the trial Court, a majority of this concluding any- he added that “I think it is in order to consider thing that will relieve cervical muscle version—which is wholly unmentioned in spasm likely improve will his tinnitus.” opinion: earlier, comprise As stated those who today’s majority appeal decide the on the years Five after the accident and one guilty defense in fact basis that counsel is prior month to the then-scheduled trial misrepresentation charged. as The dis- date Defendants served their first inter- otherwise, trict court but his find- Zolber, rogatories including an inter- found ings totally ignored. and conclusions are rogatory asking designation for a of the charged by Misrepresentation here de- as expected witnesses Zolber to call at trial. than in an action for fendants is no less timely response Zolber’s advised Defend- fraud and deceit. There be intention- ants, must correctly, that Zolber’s sole medi- fact, existing made al misstatement of cal witness would be Dr. Bathurst —of upon, with an intent that be relied previously whom were un- Defendants reliance, only but that there must not they aware because had not conducted justified. Here the de- reliance must be discovery on the issue since Zolber abundantly make it clear that fendants deposition more than three and a half medical re- they wanted to use three years earlier. Defendants now contend ports for certain isolated statements they made justified by were not therein, or at them, least one of specifi- response, judgment, as a matter of trial cally Dr. Blaisdell’s thought choosing depose that: not to this new wit- I believe that his symptoms ness, will but also entitled to conclude that continue to annoy him but not him, disable the medical of other doctors who possibly years treated four of the ex- unqualified Zolber earlier would admission that the Defendants, hibit, by be admissible as substantive evidence. requested (TR. Moreover, substantially prejudiced Defendants Zolber contend that 756-757); (5) any prejudice or response misleading nature of the so of Defendants prejudicially on the misimpression that it induced Defendants product of their calls approaching they into was a defense as did. events, interpretation of and their own Presumably deception, any, engen- if (TR. 754-755, any action Zolber response dered would have to be 757). produce fundamental to such drastic con- sequences. Moreover, it be noted that at no should argument
Mixed into this
is the intima-
during
trial of this case
time
did
improperly changed
tion that Zolber
request a continuance
Defendants
scope
nature of his claims and
surprise
claimed
allow them to meet their
damages, although
do not
Defendants
they
indicated that
ever
nor have
appeal; nor
raise this as an issue on
any effort to call as witnesses the
made
they, having
object
any
could
failed to
at
found
the dis-
authors
any
time to
of Zolber’s evidence on dam-
wit-
judge
trict
to be inadmissible. These
15(b),
ages
injuries,
and hav-
I.R.C.P.
readily
available within the
nesses
ample
had
notice of the existence
and within one hour of the
state of Idaho
disability
claimed
and future losses. See
Instead,
courthouse.
chose
defendants
ruling
the trial court’s
on the Motion for
proceed
with the state
the evidence
Judgment Notwithstanding the Verdict
party
and await a verdict. When
(TR. 752-754).
surprised during
to move
failure
argument
At the heart of Defendants’
continuance at the time
sur-
duty
is the claim that Zolber violated a
prise
party’s right
waives that
to so
response
supplement
interrogatory
Issaguirre [Isaguirre]
later claim.
v.
26(e)(2),
that the trial
under I.R.C.P.
Echevarria,
trial must be commenced six after plaintiff’s injury. omitted). (footnotes at 1164
Id. majority,
One would like to think that the
reading
relying
the Shelak
case,
quick
would have been
to see that
tions were presenta- parties.
sel for both Defendants’ including from three other
tion affidavits bar, all of whom
members of the district