NAHABEDIAN v. FALKNER

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Court of Appeal, Second District, Division 3, California.

Nina NAHABEDIAN, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. Michele Anne FALKNER, Clay E. Falkner and Stephen Paul Wukelich, Jr., Real Parties in Interest.

Civ. B039068.

Decided: April 06, 1989

Goshgarian & Goshgarian, Haig Goshgarian, Mark Goshgarian, Woodland Hills, for petitioner. Gilbert, Kelly, Crowley & Jennett, Clifford H. Woosley, James Fischer, Los Angeles, for real parties in interest Michele Anne Falkner and Clay E. Falkner.

INTRODUCTION

Plaintiff and petitioner Nina Nahabedian (plaintiff) brought an action against defendants and real-parties-in-interest Michele Anne Falkner, Clay E. Falkner and Stephen P. Wukelich, Jr.,1 (collectively defendants) for personal injuries.

In the course of discovery, plaintiff provided defendants with copies of her medical records, x-rays, results of diagnostic tests and submitted to a medical examination by their physician.   Upon plaintiff's request, pursuant to Code of Civil Procedure section 2032, subdivision (h),2 defendants provided her a copy of the physician's report.   When plaintiff inquired about the physician's failure to include a review of the medical records in the report, defendants informed plaintiff that, after completing the physical examination report, the examining physician had reviewed plaintiff's medical record and prepared a medical records review report.   Upon plaintiff's demand for production of the second report, defendants claimed the protection of the attorney's work product and refused production.

The trial court agreed the second report was protected work product and denied plaintiff's motion to compel.   Plaintiff petitioned this court for a writ of mandate.   We issued an alternative writ and set the matter for oral argument.   In response to the alternative writ, the trial court reversed its order of denial, granted the request and ordered defendants to produce the report.   We issued a stay of enforcement of this order.

Because defendants continue to maintain that the second report is work product and refuse to produce it, the issues raised by plaintiff's petition have not been rendered moot.   We therefore retain jurisdiction for determination upon the merits.

FACTUAL AND PROCEDURAL BACKGROUND

In January 1984, plaintiff filed a complaint for personal injuries sustained in a three car collision in 1983, and defendants subsequently answered.   In November 1987, defendants Michele Falkner and Clay Falkner demanded that plaintiff submit to a “non-intrusive orthopedic physical examination from head to toe, including x-rays of the affected body parts.”   On January 18, 1988, Dr. Jack Vandernoot, an orthopedic surgeon chosen by defendants, conducted the examination of plaintiff pursuant to the parties' stipulation.3  His 7–page report of that date includes a discussion of plaintiff's chief complaints;  the plaintiff's history of the subject injury, as related by plaintiff;  the results of the examination, including examination of the lumbosacral spine and lower extremities, knees, cervical spine and upper extremities;  and his diagnosis and recommendations.   Included in his recommendations is the statement:  “I would appreciate reviewing this patient's medical records and x-rays in addition to the various special tests such as CT scans or MRI scans․  [¶] It is my medical opinion, on the basis of the present medical information, that she will not require lumbar surgery.   However, I would still appreciate reviewing this patient's medical records and x-rays.”

Plaintiff's attorney received a copy of the report by Dr. Vandernoot in April 1988 and in May contacted defendant Falkners' attorney to request an explanation of what he considered to be an incomplete analysis and findings.   He was advised that the examining physician had prepared two reports and that the report which was not provided to plaintiff included, among other things, an analysis of plaintiff's prior medical records, reports, and x-rays.   Plaintiff demanded the defendants deliver “[a] copy of all detailed written reports of the examination of the Plaintiff setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, medical reports review, and conclusions of Dr. Jack Vandernoot” and a “copy of reports of all earlier examinations of the same condition of Plaintiff made by the above named medical examiner or by any other examiner.”   Defendants Falkner refused to produce the second report, claiming attorney work product protection.

Plaintiff moved for an order requiring defendants to produce the report, arguing that, pursuant to section 2032, subdivision (h), the protection for work product is waived for all writings and reports prepared by the examining physician and that the “mutual discovery” provision of section 2032 cannot be circumvented by the device of fragmenting an examining doctor's reports, citing Queen of Angels Hospital v. Superior Court (1976) 57 Cal.App.3d 370, 129 Cal.Rptr. 282.   Plaintiff also argued that defendant Wukelich's failure to respond within the 30 day time period under section 2032 waived any objection he may have had with regard to plaintiff's demand to produce the second report.

Defendants opposed the motion, arguing that, while section 2032 requires the production of the physical examination report, it does not require the production of Dr. Vandernoot's review of medical reports, which is attorney's work product.

ISSUE

Does Code of Civil Procedure section 2032 require the production on demand of all writings and reports concerning the examinee's medical condition prepared by the doctor who performs a physical examination pursuant to that section including a medical records review report which otherwise would be subject to attorney work product protection?

DISCUSSION

1. Work Product Protection

Section 2018 of the Code of Civil Procedure expresses the policy of the state to “preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases” and “to prevent attorneys from taking undue advantage of their adversary's industry and efforts.”  (Subd. (a)(1) and (2).)   There is absolute protection for any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories.  (Section 2018, subd. (c).)  Other work product enjoys qualified protection:  it is not discoverable “unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in injustice.”  (Section 2018, subd. (b).)

Consistent with this policy, the identity of experts consulted by an attorney in preparation of his case is not discoverable until the exchange of lists of expert witnesses pursuant to section 2034 (formerly 2037) shortly before the date set for trial.  (South Tahoe Public Utility Dist. v. Superior Court (1979) 90 Cal.App.3d 135, 138–139, 154 Cal.Rptr. 1.)

“ ‘The knowledge, opinions, and report of an expert consulted by an attorney in preparation of his case remain immune from disclosure under the attorney's work-product privilege as long as the expert does not change his status as a consultant-expert.   If the attorney does not communicate a decision to use the expert as a witness, the adverse party may not obtain disclosure of the expert's knowledge, opinions, or report by means of any pretrial discovery vehicle or by calling the expert as a witness at the trial․  (¶) However, once it appears reasonably certain that the consultant-expert is to become a witness in the action, the attorney's work-product privilege terminates and the expert's knowledge and opinions are subject to discovery and disclosure.   This rule of termination is one of fairness.   The attorney who employed the expert cannot be permitted to still assert the attorney's work-product privilege after a decision has been made that the expert's knowledge and opinions are to be thrust into the evidence arena.’  (Jefferson, Cal.Evidence Benchbook (1972) § 41.1, pp. 704–705 (original italics);  see also Tip Top Foods, Inc. v. Lyng, [1972], 28 Cal.App.3d 533, 533 [104 Cal.Rptr. 718];  Bolles v. Superior Court, [1971], 15 Cal.App.3d 962, 963 [93 Cal.Rptr. 719].”   (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 857, 139 Cal.Rptr. 888.)

However, even upon identification as an expert witness for trial, not all work the expert has performed for counsel is properly the subject of pretrial discovery.  (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 488, 210 Cal.Rptr. 535.)

“[A]n expert's report rendered in an advisory capacity is one designed to assist the attorney in such matters as preparation of pleadings, the manner of presentation of proof, and cross-examination of opposing expert witnesses;  matters that are often reflective of the mental processes of the attorney under whose direction the expert works.  (See State v. Circuit Court for Milwaukee County (1967) 34 Wis.2d 559 [150 N.W.2d 387, 408, 35 A.L.R.3d 377].)   In contrast, ․ a report which would qualify the author as an expert witness is one containing findings and opinions of the expert that go to the establishment or denial of a principal fact in issue.  (See ibid.;   but see Kennedy, Cal.Expert Witness Guide (1983) § 6.4, pp. 139–141.)”  (Id., at p. 489, 210 Cal.Rptr. 535.)   Only those reports or portions of reports that “go to the establishment or denial of a principal fact in issue” are discoverable. [4 ]

2. Waiver of Work Product Protection in Section 2032 Discovery Proceedings

Plaintiff contends that section 2032 requires that the parties share all reports prepared by physicians who have examined the examinee.   She argues that the principle of mutuality of discovery forbids the “fragmenting” of a physician's report as a means of “transforming” portions of the report into work product.   This argument rests on a misinterpretation of the scope of section 2032.

Section 2032 authorizes discovery by means of a physical examination of a party, an agent of a party, or a natural person under the custody or legal control of a party, in an action in which the physical condition of that party or other person is “in controversy.”  (Section 2032, subd. (a).)

Subdivision (h) provides the party who has submitted to a physical examination or has produced another for such an examination the option of demanding that the party at whose instance the examination was made deliver “(1) a copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner, and (2) a copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.” 5

This provision is “much more explicit [than its predecessor] as to the nature of the report one is entitled to receive.   The previous statute simply described it as ‘a detailed written report.’  Section 2032(h), on the other hand, specifies just what ‘details' the report is to contain, namely, ‘the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.’ ”  (1 Hogan, California Discovery (4th ed. 1988), § 8.15, pp. 497–498.)   Specification of the contents apparently was intended to prevent the preparation of a report which includes only those elements favorable to the side employing the doctor.6

If a demand is made, a copy of the examination report must be delivered within 30 days of the demand or within 15 days of trial, whichever is earlier.   Exercise of the demand option by the examinee or the party who produced the examinee “bestows on the other side reciprocal discovery rights that it might not otherwise have.”  (1 Hogan, Modern California Discovery, supra, § 8.15, p. 497.)   Subdivision (j) specifies that a party receiving a demand for a report under subdivision (h) is entitled to receive “any existing written report of any examination of the same condition by any other physician, psychologist, or licensed health care practitioner,” and any later report of any previous or subsequent examination of the same condition.  (Subdivision (j).) 7

Waiver of the examinee's work product protection is expressly addressed in subdivision (i), which provides:  “By demanding and obtaining a report of a physical or mental examination under the provisions of subdivision (h), or by taking the deposition of the examiner, other than under subdivision (i) of Section 2034, the party who submitted to, or produced another for, a physical or mental examination waives in the pending action, and in any other action involving the same controversy, any privilege, as well as any protection for work product under Section 2018, that the party or other examinee may have regarding reports and writings as well as the testimony of every other physician, psychologist, or licensed health care practitioner who has examined or may thereafter examine the party or other examinee in respect of the same physical or mental condition.”  (Code Civ.Proc., § 2032, subd. (i).)

Waiver of the examining party's work product protection is expressed in subdivision (h):  “The protection for work product under Section 2018 is waived, both for the examiner's writings and reports and to the taking of the examiner's testimony.”  (Subd. (h).)

The entire section concerns physical and mental examinations and the discovery of reports of physical or mental examinations.   Reports to the examining party's attorney by physicians who have not examined the examinee are not subject to the waiver provisions of section 2032.   Likewise, to the extent that the examining physician prepares a report that is not a product of the examination, it too is not subject to the automatic waiver provision.8

Mutuality of discovery is maintained.   The examination of a person pursuant to section 2032 does not automatically subject all the writings of the examining physician to discovery on demand.   Similarly, the party who demands an examination report waives his or her work product protection in regard to reports of physical or mental examinations only.

Plaintiff's reliance on Queen of Angels Hospital v. Superior Court, supra, 57 Cal.App.3d 370, 129 Cal.Rptr. 282, is misplaced.   In this action against a hospital for personal injuries to Jones, a minor, the hospital caused the minor to be examined by a physician and, upon request, delivered a copy of the physician's written report to the minor.   The minor was later examined by another physician employed by the minor's counsel who prepared a written report.   When the hospital requested a copy of this report, the minor's counsel refused, claiming that it was protected work product.   The trial court denied the hospital's motion for an order to compel delivery of the report and ruled that the hospital could call the physician as its own witness at trial but could not question him about the report or any attorney-client communications.

The Court of Appeal granted a peremptory writ, holding that the report was subject to the mutual discovery provisions of section 2032.   The court declared that the Hospital's right to a copy of the latter report was specifically covered by then section 2032, subdivision (b)(1):  “ ‘․ After such request and delivery [Hospital's delivery of Dr. Gabriel's report to Jones] the party causing the examination to be made [Hospital] shall be entitled upon request to receive from the party or persons examined [Jones] a like report of any examination, previously or thereafter made, of the same condition․’  Since Dr. Menkes made a physical examination of Jones and prepared a written report of his findings and conclusions, Hospital is entitled to a copy of the report under the provisions of the section.

“Jones' contention that Dr. Menkes' report is attorney work-product might be sustainable if Dr. Menkes had not physically examined Jones and if he had merely submitted a hypothetical opinion to counsel based on assumed facts.   But such was not the case.   Dr. Menkes did in fact examine Jones before he prepared his report.   More factual input thereby went into the cause, and both sides were entitled to access to that input.  ․ The fact that Jones' counsel has declared he will not call Dr. Menkes as a witness is of no consequence.   To conclude otherwise would permit Jones to arrange unlimited medical examinations and reports and suppress those he might think unfavorable merely by characterizing the doctors who prepared them as advisors to counsel and promising not to call them as witnesses.”  (Queen of Angels Hospital v. Superior Court, supra, 57 Cal.App.3d at pp. 374–375, 129 Cal.Rptr. 282, emphasis added.)

Queen of Angels is distinguishable from the situation before us.   There, the report the minor sought to have produced was in fact a written report of the examining physician's findings and conclusions based upon the physical examination of the minor.  (Id., at pp. 373, 374, 129 Cal.Rptr. 282.)   The Hospital claimed that it was protected work product.   Here, defendants have produced Dr. Vandernoot's report of his findings and conclusions based on his examination of plaintiff.   They claim that a separate report, not the physical examination report, is work product.

Plaintiff suggests that the court criticized the device of fragmenting an examining physician's report as a means of transforming portions of the report into work product.9  However, the court criticized the fragmentation of a report of a physical examination only:  “[W]e do not think the mutual discovery provisions of section 2032 governing physical examinations of persons can be circumvented by the device of fragmenting an examining doctor's report of his findings and conclusions into segments and making some but not all segments of his findings and conclusions available to the opposing party.   As we read section 2032, and rule 35 of the Federal Rules of Civil Procedure from which section 2032 was taken, the section covers all reports of an examining physician's findings and conclusions.”  (Id., at p. 375, 129 Cal.Rptr. 282, emphasis added.)  Queen of Angels is consistent with the principle that it is the nature of the material sought to be produced that determines whether it is discoverable, not its physical format.

Plaintiff also contends that Dr. Vandernoot became a “ ‘material’ witness” rather than a “mere potential witness.”   However, whether Dr. Vandernoot is called a “material witness” or a “potential witness,” is of no consequence regarding the discoverability of the work product report as opposed to the medical examination report.  “[T]he mere fact the expert may have the dual status of a prospective witness and of adviser to the attorney, does not remove the product of his services rendered exclusively in an advisory capacity, as distinguished from the product of services which qualify him as an expert witness, from the work product limitation upon discovery.”  (Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 531, 51 Cal.Rptr. 511.)   If the examining physician is identified as an expert witness for trial pursuant to section 2034, his opinions and conclusions regarding plaintiff's injuries based upon his review of the plaintiff's medical records and the medical record review report may then be discoverable.  (See National Steel Products Co. v. Superior Court, supra, 164 Cal.App.3d 476, 210 Cal.Rptr. 535;  Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 204, 41 Cal.Rptr. 721.) 10

CONCLUSION

Plaintiff would have us rewrite section 2032, subdivision (h) by adding “medical records review” to the specified contents of the “detailed written report” which must be produced on demand.   We decline this invitation.

DISPOSITION

Petition denied.   The superior court is ordered pursuant to section 2032 to issue an order precluding plaintiff's discovery of Dr. Vandernoot's medical record review report.

FOOTNOTES

1.   Defendant Wukelich did not appear in opposition to plaintiff's petition for a writ of mandate.

2.   Code of Civil Procedure section 2032, subdivision (h) provides in part:“If a party submits to, or produces another for, a physical or mental examination in compliance with a demand under subdivision (c), an order of court under subdivision (d), or an agreement under subdivision (e), that party has the option of making a written demand that the party at whose instance the examination was made deliver to the demanding party (1) a copy of a detailed written report setting out the history, examination findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner, and (2) a copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.   If this option is exercised, a copy of these reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.   The protection for work product under Section 2018 is waived, both for the examiner's writings and reports and to the taking of the examiner's testimony.”All statutory references are to Code of Civil Procedure, unless otherwise indicated.

3.   The stipulation stated that plaintiff would “not submit to new x-rays” but that defendants' attorneys would arrange to copy the x-rays in the possession of plaintiff and her attorneys and were entitled to obtain any additional x-rays in the possession of her doctors and technicians.   The stipulation does not mention plaintiff's medical records.   Plaintiff's attorney declares that, as part of the stipulation, defendants requested “all records and x-rays” be delivered to them prior to the examination, and that “[plaintiff] complied with [this] request․”

4.   The National Steel court continued:“Applying the above analysis, it will often be necessary for the trial judge to conduct a three-step in camera inspection of the report of an expert identified as a witness in order to rule on the claim of the attorney's work product privilege.  (Cf. Fellows v. Superior Court [1980] 108 Cal.App.3d [55] at p. 68 [166 Cal.Rptr. 274].)“First the judge should determine if the report, in whole or part, ‘․ reflects an attorney's impressions, conclusions, opinions, or legal research or theories․'  ( [Former] Code Civ.Proc., § 2016, subd. (b).)  The work product that this definition represents is absolutely privileged;  it cannot be discovered under any circumstances.  (Ibid.)  The judge need go no further in his analysis unless all or easily severable portions of the report do not so reflect the thoughts of an attorney.“Steps two and three of the in camera inspection are applicable only to those portions of the report that are not absolutely privileged.   In step two the trial judge should determine whether the report, in whole or part, is advisory or not․  The portions of the report that are advisory are protected by the conditional work product privilege;  the portions that are not advisory are discoverable if easily severable.“Finally, in step three, which is applicable only to advisory portions of the report that are not absolutely privileged, if any, the judge should determine whether other good cause for discovery outweighs the principles supporting the conditional work product privilege.  (See Petterson v. Superior Court [1974] 39 Cal.App.3d [267] at p. 272 [114 Cal.Rptr. 20];  Scotsman Mfg. Co. v. Superior Court [1966] 242 Cal.App.2d [527] at p. 530 [51 Cal.Rptr. 511].)”  (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 489–490, 210 Cal.Rptr. 535.)

5.   The right to reports of earlier examinations “would come into play mainly in situations where before suit was filed, the injured person had voluntarily submitted to a physical examination at the behest of a potential defendant's insurance carrier, but had neglected to exact, as a condition of their cooperation, the receipt of a copy of the defense doctor's report.”  (1 Hogan, California Discovery (4th ed. 1988), § 8.15, p. 497.)

6.   “This amplification of the contents of the report appears to reflect the same concerns about the integrity of discovery medical reports that were expressed by a federal trial judge:“ ‘It is to be expected that physicians and others called upon to make written reports for use in connection with litigation, whether pending, contemplated or possible, will express their candid opinion or judgment with the idea that findings should be the same irrespective of the side to which the report is furnished.   Confidential addenda or qualifications intended merely for one side seem inconsistent with the professional obligation of the doctor and the spirit of [Federal] Rule 35.  [¶] Counsel of course should not edit reports or suggest their being rewritten to correspond with partisan ideas or desires.   This, too, would be inconsistent with the spirit of Rule 35 and the professionalism to be expected under the circumstances.’ ”  (Hogan, supra, § 8.15, p. 498, quoting Chastain v. Evennou (1964, D.C., Utah) 35 F.R.D. 350, 353–354.)

7.   The original version of this subdivision required the disclosure of the identity of all physicians who had examined the same condition of the examinee even if no report was prepared.  (See Stat.1986, ch. 1336, eff. 7–1–87.)

8.   Plaintiff's interpretation of the statute would unnecessarily encourage the consultation of nonexamining physicians solely to insulate attorney work product.   It would also render discoverable writings which are absolutely protected work product pursuant to section 2018, subdivision (c):  “any writing that reflects an attorney's impressions, conclusions, opinions, or legal research and theories․”

9.   The opinion does not disclose the nature of the information to which Jones referred when he argued that “because some preliminary information from Dr. Menkes had become available to Hospital he [was] not required to furnish the remainder of Dr. Menkes' findings and conclusions.”  (Id., at p. 375, 129 Cal.Rptr. 282.)

10.   An earlier deposition of the examining physician pursuant to section 2032 would be limited to the subject of the physical examination and to the limited extent that the physician's prior review of the examinee's medical records, if any, was an element in the examination and influenced the examination report.

ARABIAN, Associate Justice.

KLEIN, P.J., and CROSKEY, J., concur.

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