WHAT REMEDY IS APPROPRIATE WHEN AN EXPERT UNDERTAKES IMPROPER DISCOVERY

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Hagedorn v. Stormont-Vail Regional Medical Center, 238 Kan. 691, 715 P.2d 2 (1986).

This case addresses the following issue:

What remedy is appropriate when an expert undertakes improper discovery?

The court was faced with an odd situation in this case. An expert witness for the Plaintiff, upon arriving in Kansas to testify at trial, visited the Defendant hospital without knowledge or consent of the trail lawyers. Id. at 693-94. The court determined that, because the purpose of deposing an expert is to learn not only the opinion of that expert, but also the underlying facts and the methods used to reach that opinion, this ex parte discovery is clearly unfair to an opposing party. Id. at 697. Preventing the expert for testifying live and instead only allowing his deposition testimony to be read to the jury was an appropriate remedy under these circumstances. Id.

The Plaintiff in this case was born with several birth defects. Id. at 693. She alleged that, just before her birth, her brain was deprived of oxygen by the malpractice of her mother’s attending physicians. Id. Essentially, the doctor that ultimately delivered the Plaintiff had left the hospital and placed Plaintiff’s mother under the care of nurses. Id. This led to a delay in delivering the baby after the baby’s heart rate began to slow for a lack of oxygen. Id.

The Plaintiff’s expert in this case was deposed before trial and was intended to testify live before the jury. Id. at 694. The expert arrived in Kansas the day prior to his anticipate trial testimony. Id. Upon arriving at the airport, the expert asked to be taken to the hospital where the actions had taken place. Id. Upon arriving, the expert did not explain that he was testifying in a case or who he was, aside from the fact that he was an out-of-state obstetrician. Id. The expert was allowed to examine the labor and delivery areas of the hospital. Id. Upon learning of this ex parte examination of the hospital, Defendant brought the issue before the trial court and the expert was ultimately prohibited from testifying, instead being limited to reading his deposition to the jury. Id.

The Plaintiff challenged both the decision to prevent the expert from testifying and the remedy chosen by the trial court. Id. at 696. However, the court found that the expert’s examination of the hospital would defeat perhaps the greatest reason for having taken his deposition: to eliminate surprise. Id. at 697. Opposing counsel needs a fair opportunity to dissect and understand not only an expert’s ultimate opinion and conclusions, but also how the expert arrives at those conclusions. Id. By accessing new information—which was unknown to defense counsel here—the expert could testify to new conclusions and new methods of arriving at such conclusions. Id. To allow this would place the opposing party at a great disadvantage. Id.

Further, the court found the remedy appropriate based on the options before the trial judge. Id. at 696. By reading the deposition, the Plaintiff was allowed to present an expert’s opinion of her case. Id. Further, the Defendant was able to attack any such opinions, conclusions, or methods employed by the expert. Id. Essentially, the taint of the expert’s improper actions was fully removed by using only his deposition testimony. Id. The court found error in this remedy. Id.