The Supreme Court of the State of Oregon (“Orgeon Supreme Court”) held in its opinion filed on August 23, 2018 that the questions that the Orgeon medical malpractice plaintiff asked two radiologists employed by the defendant radiology group about what they saw in the plaintiff’s imaging studies in 2016 were relevant under ORCP 36 B because the questions were reasonably calculated to lead to admissible evidence about the radiologists’ treatment of the plaintiff in 2013, and what they perceived and knew at that time. The Oregon Supreme Court further held that those questions do not call for impermissible “expert testimony” and do not invade the attorney client privilege.
The Oregon medical malpractice plaintiff filed an Oregon medical negligence action alleging that the two radiologists were negligent in reading her imaging studies when they examined them in 2013. In 2016, during discovery in the Oregon medical malpractice case, the plaintiff took the depositions of both radiologists. The radiologists testified to the findings that they had made after examining the plaintiff’s imaging studies, but, when the plaintiff showed the radiologists the studies, they testified that they had no independent memory of reviewing them. When the plaintiff then asked the radiologists to tell her what they could now see in those studies, the defense attorney instructed the radiologists not to answer, arguing that those questions called for “expert testimony” that is not discoverable under ORCP 36 B. The Oregon medical malpractice defense attorney further argued that those questions impermissibly invaded the attorney client privilege set out in OEC 503.
The plaintiff filed a motion to compel discovery and sought an order allowing her to ask the radiologists about their current “knowledge and ability to read and interpret” the imaging studies. The trial court denied the plaintiff’s motion, and the plaintiff thereafter petitioned the Oregon Supreme Court for a writ of mandamus requiring the trial court to grant her motion, or, in the alternative, show cause why it had not done so. The Oregon Supreme Court issued the writ of mandamus but the trial court nonetheless declined to change its ruling.
In the present appeal, the Oregon Supreme Court stated that if the radiologists had not participated in the plaintiff’s care, the plaintiff would be precluded from deposing them and therefore could not ask them any questions at all. The Oregon Supreme Court further stated that the fact that the plaintiff is entitled to depose the radiologists does not give the plaintiff authority to ask them questions that she would be prohibited from asking a radiologist who had not participated in her care. But the Oregon Supreme Court also stated that it did not agree with the defense argument that the line between permitted and precluded questions depends on whether the plaintiff asks the radiologists about what they saw and did in the past, or, instead, for the “current application of their expert knowledge and training.”
The Oregon Supreme Court stated that it is not expert knowledge and training that differentiates an expert who can be deposed (a participating expert) from one who cannot (a nonparticipating expert). An expert who acquires or develops facts or opinions as a participant in the events at issue may be questioned about those events as an ordinary witness. Under ORCP 36 B, a participating expert can be asked any questions relevant to his or her direct involvement in the events at issue. The fact that a participating expert also has expert qualifications does not alter or restrict the scope of the questions that he or she may be asked about his or her participation. In contrast, an expert witness who acquires or develops facts or opinions in anticipation of litigation or for trial—a nonparticipating expert—cannot be asked any questions at all about those matters. A party cannot turn a participating expert into a nonparticipating expert and ask a participating expert about matters in which the participating expert was not directly involved.
The Oregon Supreme Court held in the present case that the plaintiff was entitled to ask, and the radiologists were required to answer, questions about the radiologists’ treatment of the plaintiff and their review of her imaging studies in 2013 and questions about what the radiologists could see in those studies in 2016. In contrast, the plaintiff would not be entitled to ask, and the radiologists would not be required to answer, any questions whatsoever about matters in which the radiologists did not participate.
Source Ransom v. Radiologist Specialists of the Northwest, 363 Or 552 (2018).
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