(specially concurring).
We agree with the result reached by Judge Sutin on all issues and join in Part E of his opinion. On other issues, we reach the result somewhat differently.
Locality Rule and Dr. Wachtel
The locality rule stated in U.J.I. Civil 8.1 states that in determining malpractice the fact finder is to give “due consideration to the locality involved.” This instruction, in our opinion, differs from the standard stated in Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964)-departure from “the recognized standards of medical practice in the community”.
The difference in the instruction approved by the Supreme Court and the definition in Cervantes was pointed out in Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App.1973). The difference was discussed by Judge Sutin in his separate opinion in Goffe v. Pharmaseal Laboratories, Inc., (Ct.App.) No. 2480, decided December 7, 1976, certiorari granted January 7, 1977.
We agree with the views stated by Judge Sutin in Goffe — that U.J.I. Civil 8.1 is the appropriate standard. We do not agree with Judge Sutin’s comment in Goffe that U.J.I. Civil 8.1 was approved in Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971). As we read Williams, there was no appellate issue in' that case concerning the locality rule. The Supreme Court’s latest decision on the locality rule followed Cervantes and did not discuss U.J.I. Civil 8.1. Becker v. Hidalgo, 89 N.M. 627, 556 P.2d 35 (1976).
Judge Sutin’s opinion in this case follows U.J.I. Civil 8.1 rather than Cervantes. In our opinion, it makes no difference which locality rule is followed in deciding this case; under either rule there was an issue of fact. There is an issue of fact as to whether Dr. Grieco was late in considering whether there was a ruptured viscus. The question of lateness arises from the deposition testimony of several physicians as to fundamental diagnostic techniques. Accordingly, we do not consider nor join in the extensive factual references favorable to plaintiff in Part D of Judge Sutin’s opinion. Because of the opinion as to fundamental techniques, applicable no matter where the doctor practices medicine, there was a factual issue under either locality rule.
With the other deposition testimony, it makes.no difference whether Dr. Wachtel had personal knowledge concerning local practice. Fundamental techniques, applicable no matter where the doctor practices, would apply to the locality involved in..this lawsuit. We do not disagree with Part A of Judge Sutin’s opinion; however, the ruling excluding Dr. Wachtel’s testimony at trial was also erroneous for the reasons stated in this paragraph.
Limiting Discovery
We agree that the trial court erred in limiting the second deposition of Dr. Grieco to the subject matter of questions appearing on specified pages of the first deposition. Other pages of the first deposition show instances where Dr. Grieco’s attorney intervened to avoid a question being answered.
Our deposition rules intend a liberal pretrial discovery to enable the parties to obtain the fullest possible knowledge of the facts before trial. See 4 Moore’s Federal Practice (2nd ed.) ¶ 26.56. A trial court’s decision to limit discovery will not be disturbed except for an abuse of discretion, however, the presumption is in favor of discovery. Salitan v. Carrillo, 69 N.M. 476, 368 P.2d 149 (1961). The conduct of Dr. Grieco’s attorney during the taking of the first deposition thwarted the intent of the discovery rule and prevented plaintiff from obtaining knowledge of at least some of the facts. In this situation, it was an abuse of discretion to limit discovery in the second deposition to questions appearing on specified pages of the first deposition.
The remedy for this improper limita.tion is to allow plaintiff to .depose Dr. Grieco again. While this result accords with the result of Judge Sutin, we do not join in Part C of Judge Sutin’s opinion because it would hold that the trial court is powerless to limit discovery unless a party moves that a limitation be imposed. In appropriate circumstances the trial court may act sua sponte. See Smith v. Walcott, 85 N.M. 351, 512 P.2d 679 (1973); Birdo v. Rodriguez, 84 N.M. 207, 501 P.2d 195 (1972); Miller v. City of Albuquerque, 88 N.M. 324, 540 P.2d 254 (Ct.App.1975); Beverly v. Conquistadores, Inc., 88 N.M. 119, 537 P.2d 1015 (Ct.App.1975).
Appeal of Orders Limiting Discovery
Part B of Judge Sutin’s opinion discusses defendant Grieco’s contention that the trial court orders limiting discovery were not appealed because not designated in the notice of appeal. Judge Sutin holds that the limiting orders are before this Court for review by the appeal from the summary judgment because the limiting orders were not appealable. This is subject to misinterpretation.
Defendant does not claim that rulings on procedural matters cannot be reviewed in an appeal from a summary judgment when an independent appeal cannot be taken on the basis of the procedural ruling. The claim is: “Assuming that the two orders complained of are appealable, they are before this Court only if included within the notice of appeal.” Judge Sutin correctly holds that the orders were not appealable orders. The corollary is that not being appealable orders, the rulings may be reviewed in the appeal from the summary judgment.