#24233-r-SLZ
2007 SD 92
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
SUSAN PEARSON, Plaintiff,
v.
LINDA O’NEAL-LETCHER,
Defendant,
and
JOHN J. PAUL and DELL RAPIDS
LUMBER CO. Defendants and Appellees.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE GENE PAUL KEAN
Judge
* * * *
WILLIAM FULLER of
Fuller & Sabers, LLP Attorneys for appellant
Sioux Falls, South Dakota Renee Christensen.
MICHAEL L. LUCE
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz
& Smith Attorneys for appellees
Sioux Falls, South Dakota John J. Paul and Dell Rapids Lumber.
* * * *
CONSIDERED ON BRIEFS
ON MARCH 19, 2007
OPINION FILED 08/29/07
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ZINTER, Justice
[¶1.] Renee Christensen, attorney for plaintiff Susan Pearson, appeals the
circuit court’s imposition of discovery sanctions against her in two consolidated
personal injury cases. The circuit court imposed the sanctions because Christensen
had solicited an opinion from plaintiff’s physician regarding the permanency of
plaintiff’s injuries, yet Christensen failed to disclose the physician’s opinion in the
defendants’ first discovery request. Rather, Christensen only disclosed the opinion
when she later identified the physician as a trial witness. Because we conclude that
defendants’ initial request was not specific enough to require disclosure, we reverse.
Facts and Procedural History
[¶2.] Susan Pearson was involved in two separate car accidents that
resulted in alleged soft tissue and whiplash injuries. Because there were common
questions of fact, the cases were consolidated for trial. Christensen represented
Pearson in her claims against both drivers and one of the driver’s employers.
Defendants John J. Paul and Dell Rapids Lumber Co. (Paul) served interrogatories
and requests for production that required the disclosure of Pearson’s “medical
records” for ten years preceding the accidents. Although most of the records were
initially disclosed, Paul continued to correspond with Christensen because it
appeared from the records provided that other treatment records existed.
Ultimately, in October 2005, in response to a defense letter indicating that at least
one record from Sioux Valley Clinic was still missing, Christensen replied, “we
forwarded to you the records that we have in our possession that we have received
from that facility, and I am not aware of any other records.”
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[¶3.] In December of 2005, counsel entered into a stipulated scheduling
order for trial. Dr. Allen Unruh was subsequently designated as plaintiff’s trial
expert. He had opined that some of plaintiff’s injuries were permanent. The
discovery of his records and opinions are not at issue.
[¶4.] The medical records of Dr. Mark Rector, the plaintiff’s physician, are at
issue. Although Dr. Rector was not initially identified as a trial witness,
Christensen identified him in the spring of 2006 as a trial witness that she wanted
to depose. Christensen indicated that Dr. Rector would provide the necessary
foundation for the plaintiff’s medical bills. Because Dr. Rector was then identified
as a trial witness, Christensen also produced a previously undisclosed July 5, 2005
letter she had received in response to a June 29, 2005 inquiry she had made of Dr.
Rector concerning the permanency of the plaintiff’s injuries. In his July 5, 2005
letter, Dr. Rector contradicted Dr. Unruh. Specifically, Dr. Rector reviewed the
medical records from the time of his initial medical treatment and opined that
plaintiff’s injuries were not permanent.
[¶5.] Upon learning of Dr. Rector’s opinion, Paul canceled a previously
scheduled independent medical examination, and the case was settled. Sanctions
for the failure to disclose Dr. Rector’s July 5, 2005 opinion letter then became the
issue that is the subject of this appeal.
[¶6.] Dr. Rector had been Pearson’s family physician at Sioux Valley Clinic.
Although he had not treated her for the acute aspects of the accidents, he had seen
her in his office for treatments stemming from the first accident only two days
before the second accident.
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[¶7.] On June 29, 2005, after the litigation was commenced but prior to
Christensen’s response to discovery requests, she wrote to Dr. Rector asking for
updated medical records. Based upon the treatment he had provided, she also
solicited his opinion about the permanency of Pearson’s injuries and prognosis. She
wrote:
Our office represents Susan Pearson in regard to the above
referenced matter which pertains to two different motor vehicle
accidents. I do have a copy of your medical records but would
also offer an additional authorization to disclose health
information signed by Susan Pearson so that I can obtain any
updates in those records from 2-5-2004 to the present. I would
also appreciate receiving copies of those additional medical bills.
I do have a few questions in regard to the treatment that you
have provided to Susan. They are as follows:
1. What injury did Susan sustain from the motor vehicle
accidents which occurred on September 7, 2002 and June 19,
2003?
2. Was the medical care and treatment that you provided and
recommended necessary to treat the injuries that Susan
sustained as a result of the motor vehicle accidents?
3. Do you think that Susan should have any additional medical
treatment, therapy or care as a result of the motor vehicle
accidents and the injuries that she sustained and if so, would
you identify what you would recommend including medications
at this time?
4. Do you think that these injuries Susan sustained from the
motor vehicle accidents are permanent and would you tell me
briefly what you feel her prognosis is in this regard?
Thank you for your time and consideration in this matter. If
there is a cost in assisting our office via this letter, would you
please send us your bill and I will make sure it is paid forthwith.
Thank you.
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In his reply, Dr. Rector opined, among other things, that Pearson’s injuries were not
permanent. He stated:
I received your correspondence regarding Susan Pearson on July
5, 2005. I did review the medical records to which we both have
access. We are happy to update any medical records that are
more recent than February of 2005. 1 In regards to your four
questions, on review of the medical records, I find that I did not
treat Susan acutely for either her September 7, 2002 or June 19,
2003 accidents. Interestingly, she saw me two days prior to the
second motor vehicle accident and we discussed ongoing pain
from the first incident. She has also been under the care of
physical therapy, which I have recommended for ongoing
continued stretching and strengthening exercises. She will
likely need intermittent anti-inflammatories and muscle
relaxers. With my initial treatment plan, I was hoping to
alleviate some of her discomfort and allow her to have a better
quality of life.
Finally, I do not feel that the injuries are permanent and she
should be able to continue with meaningful activities . . . .
[¶8.] Christensen admits that when responding to Paul’s interrogatories and
request for production of “medical records,” she did not disclose this letter from Dr.
Rector. Christensen later explained that she failed to disclose the letter in the
earlier discovery because she considered Dr. Rector a consulting expert employed in
anticipation of litigation whose opinion was protected from routine disclosure by
SDCL 15-6-26(b)(4)(B). 2 She did, however, disclose the letter when she identified
him as a trial witness.
1. The dates of the last received medical records are inconsistent between
Pearson’s letter and Dr. Rector’s response. However, the dates are not
pertinent to the resolution of this case.
2. SDCL 15-6-26(b)(4)(B) provides:
(continued . . .)
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[¶9.] The circuit court concluded that 1) Dr. Rector was a fact or “actor”
witness, not a consulting expert; 2) Christensen impermissibly withheld the letter
without a protective order; and 3) Christensen’s response that she had forwarded all
records was untrue. Therefore, the court imposed sanctions under SDCL 15-6-37(d).
Paul indicated that had he known Dr. Rector’s opinion that Pearson’s injuries were
not permanent, the independent medical examination would not have been
scheduled. The court imposed sanctions of $973.84 (representing one half the cost
in each case of the preparatory and cancellation expenses of the independent
medical examination) plus $551.20 in attorney’s fees incurred in pursuing the
motion for sanctions. There is no dispute that if Paul was entitled to attorney’s fees
for pursuing a sanction motion, the fee request was reasonable.
[¶10.] The question on appeal is whether Christensen violated SDCL §15-6-
37(d) by withholding Dr. Rector’s opinion letter from the initial discovery. A circuit
court discovery sanction under SDCL 15-6-37 is reviewed under an abuse of
discretion standard. Chittenden & Eastman Co. v. Smith, 286 NW2d 314, 316 (SD
1979).
We have held that an abuse of discretion refers to a discretion
exercised to an end or purpose not justified by, and clearly
against, reason and evidence. SDCL 15-6-37 gives the trial
________________________
(. . . continued)
A party may discover facts known or opinions held by an expert who
has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not
expected to be called as a witness at trial, only as provided in §15-6-
35(b) or upon a showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.
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judge broad latitude in penalizing the party who has failed to
comply with discovery orders, however such latitude is not
limitless.
Haberer v. Radio Shack, a Div. of Tandy Corp., 1996 SD 130, ¶16, 555 NW2d 606,
610 (quoting Schrader v. Tjarks, 522 NW2d 205, 209 (SD 1994)). Obviously, there
must be underlying factual support to find that a discovery violation occurred.
Decision
[¶11.] Christensen argues that the circuit court erred because: 1) Dr. Rector
was both a treating physician and a consulting expert whose testimony was not
routinely discoverable under SDCL 15-6-26(b)(4)(B); 2) the letter was timely
disclosed when Dr. Rector was identified as a trial witness; 3) the language of the
discovery request did not require disclosure of the letter; and 4) the sanctions
awarded were not authorized by SDCL 15-6-37(d). We view the dispositive question
as whether the language of the discovery requests required disclosure of the letter.
Therefore, we only address Christensen’s third argument.
[¶12.] Christensen first points out that Paul’s interrogatories and request for
production of documents (hereafter referred to as interrogatories) asked for
Pearson’s “medical records” rather than “documents.” She further points out that
although “medical records” were requested, that term was not defined, and that
while the interrogatories’ definition of “document” would have included the letter,
the term “document” was not used in those requests. 3 The circuit court, however,
3. Paul’s interrogatories utilized the following definition of “document”:
“Document” includes any written, recorded, graphic matter, however
produced or reproduced, including, but not limited to, correspondence,
(continued . . .)
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found that “[r]ecords or documents included correspondence,” and that the
interrogatories “requested production of these documents,” thus requiring
production of correspondence. Our reading of the interrogatories does not support
the circuit court’s findings.
[¶13.] A review of the interrogatories reflects that, although the word
“documents” was defined in the interrogatories to include correspondence, the
relevant interrogatories did not ask for “documents.” Instead, the interrogatories
asked for “a complete copy of your medical, chiropractic and therapy records
relating to your visits to medical providers or chiropractors since the time of this
accident”; “a copy of those records” from “all medical providers, doctors,
chiropractors or therapists who have treated you in the past ten (10) years”; and
“copies of all medical records for treatment received as a result of the alleged
occurrence.” (Emphasis added.)
[¶14.] SDCL 15-6-26(a) provides for several different methods of discovery, 4
and SDCL 15-6-37(d) authorizes sanctions for failure to respond. 5 Inherent in the
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(. . . continued)
telegrams, or other written communications, printed material,
photographs, drawings, contracts, agreements, notes, memoranda,
work papers, diaries, minutes of meetings or any other writings.
4. SDCL 15-6-26(a) provides:
Parties may obtain discovery by one or more of the following methods:
depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission to
enter upon land or other property, for inspection and other purposes;
physical and mental examinations; and requests for admission. Unless
the court orders otherwise under §15-6-26(c), the frequency of use of
these methods is not limited.
(continued . . .)
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statutes, however, is the requirement that a party must request the document at
issue before the opposing party is required to comply. 6 In this case, Paul defined
the term “document,” which included correspondence, but chose to phrase the
relevant interrogatories using the different, undefined term “medical records.” To
determine whether Christensen’s initial failure to produce the correspondence failed
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(. . . continued)
5. SDCL 15-6-37(d) provides:
If a party or an officer, director, or managing agent of a party or
a person designated under subdivision 15-6-30(b)(6) or §15-6-31(a) to
testify on behalf of a party fails (1) to appear before the officer who is
to take the deposition, after being served with a proper notice, or (2) to
serve answers or objections to interrogatories submitted under §15-6-
33, after proper service of the interrogatories, or (3) to serve a written
response to a request for inspection submitted under §15-6-34, after
proper service of the request, the court in which the action is pending
on motion may make such orders in regard to the failure as are just,
and among others it may take any action authorized under
subdivisions 15-6-37(b)(2)(A), (2)(B), and (2)(C). In lieu of any order or
in addition thereto, the court shall require the party failing to act or
the attorney advising him or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the court finds
that the failure was substantially justified or that other circumstances
make an award of expenses unjust.
The failure to act described in this subdivision may not be excused on
the ground that the discovery sought is objectionable unless the party
failing to act has applied for a protective order as provided by §15-6-
26(c).
6. On appeal, the defense contends that Christensen should have objected to
any interrogatories that were “vague and unclear.” They contend that since
Christensen failed to object, any objections are now waived. See SDCL 15-6-
33(a), SDCL 15-6-34(b) (requiring answers to interrogatories and requests for
production unless such interrogatories or requests are objected to). However,
Christensen is not contending that the interrogatories were vague or unclear.
In fact, she correctly points out that the interrogatories were very specific
and defined. Therefore, Christensen had no obligation to object to the
(continued . . .)
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to comply with this request, we must consider the context in which Pearson’s
medical/clinical records and Dr. Rector’s correspondence were created.
[¶15.] Pearson’s medical care was provided by Dr. Rector at the clinic, and
her medical records were created simultaneously with her visits and treatment. Yet
Dr. Rector’s letter was not created in connection with any visit or treatment.
Rather, it was created after the relevant treatment, at Paul’s request in preparation
for trial. Dr. Rector’s opinion was formulated on his previously generated medical
records and treatment. Considering the nature and timing of both Pearson’s clinic
records and Dr. Rector’s letter, and considering the interrogatories’ request for
medical “records” instead of “documents,” we find that the interrogatories did not
require the production of the post-treatment opinion letter, which was not based on
any contemporaneous medical visit or treatment.
[¶16.] This is not to suggest that we condone an attorney’s utilization of one
expert opinion concluding that an injured party’s injuries are permanent while
simultaneously withholding the injured party’s own physician’s opinion that the
injuries were not permanent. In this case, however, the question is narrow, and the
relevant interrogatories did not require production of Dr. Rector’s post-treatment
opinion letter. Therefore, we reverse and need not address the parties’ other
arguments.
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(. . . continued)
interrogatories under SDCL 15-6-33(a) or SDCL 15-6-34(b) if they simply
failed to ask for the type of document at issue.
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[¶17.] GILBERTSON, Chief Justice, and KONENKAMP, and
MEIERHENRY, Justices, and MILLER, Retired Justice, concur.
[¶18.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.
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