JAYMIE QUIGLEY PAXTON QUIGLEY v. TRAVIS KEMP SAINT ALPHONSUS REGIONAL MEDICAL CENTER CHRISTOPHER TOBE (2017)

RESPONDENT QUIGLEYS' PETITION FOR REHEARING

Filing Fee: $71.00

COME NOW Respondents, Jaymie and Paxton Quigley, by and through counsel of record and, pursuant to Idaho Appellate Rule 42, petition this Court for rehearing of the Court's Opinion No. 44 issued in the above-captioned proceeding on May 11, 2017.

Respondents respectfully request a rehearing to clarify the reasons Respondents believe discovery of the identity of the expert witness impermissibly heightens the requirements of section 6-1013, Idaho Code. Specifically, requiring plaintiffs to disclose the identity of the local consultant undermines the grant of legislative grace contained in the proviso of 6-1013: “․. provided, this section shall not be construed to prohibit or otherwise preclude a competent expert witness who resides elsewhere from adequately familiarizing himself with the standards and practices of (a particular) such area and thereafter giving opinion testimony in such a trial.” Section 6-1013, Idaho Code, requires only that the testifying expert become familiar with a fact: the standard of care. The identity of the local consultant who supplies such fact cannot and does not change that fact. Accordingly, permitting discovery on an issue ancillary to a central fact, but that will not impact that central fact, necessarily heightens the requirements of section 6-1013, Idaho Code.

Additionally, Respondents seek rehearing to clarify the scope of discovery permitted by this Court's decision. In light of the concerns expressed on pages 6-7 of the decision, this Court has expressed that justifications for additional discovery include (i) that plaintiff's attorneys will potentially suborn perjury of their testifying experts (i.e., the conversation did not happen or the consultant did not have the qualifications listed) or (ii) personal animus between the consulting expert against the defendant doctor (i.e., consultant has an ax to grind). These concerns will not be addressed by simply releasing the name of the local consultant. The question upon which the petition for interlocutory appeal was taken was whether the name of the consultant must be revealed; that is the only matter briefed by the parties. The permissible scope of additional discovery will, necessarily, face the trial court on remand. In order to avoid additional appeals on this issue, Respondents seek rehearing to clarify what, if any, further discovery this Court contemplated by its decision.

In accordance with Rule 42, Idaho Rules of Appellate Procedure, Respondents will file a brief in support of this petition within fourteen (14) days. Respondents respectfully request that this Court grant rehearing.

FISHER RAINEY HUDSON

BY:

Rebecca A. Rainey Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of June, 2017, I caused to be served a copy of the foregoing RESPONDENT QUIGLEYS' PETITION FOR REHEARING on the following, in the manner indicated below:

Andrew C. Brassey ( ) Via U.S. Mail Brassey Crawford, PLLC (X) Via Facsimile - (208) 344-7077 P.O. Box 1009 ( ) Via Overnight Mail Boise, ID 83701-1009( ) ( ) Via Hand Delivery Attorney for Defendant Saint Alphonsus Regional Medical Center Keely Duke ( ) Via U.S. Mail Duke Scanlan Hall (X) Via Facsimile – (208) 342-3299 P.O. Box 7387 ( ) Via Overnight Mail Boise, ID 83707-7387 ( ) Via Hand Delivery Attorney for Defendant Dr. Travis Kemp Raymond D. Powers ( ) Via U.S. Mail Powers Tolman Farley (X) Via Facsimile–- (208) 577-5101 P.O. Box 9736 ( ) Via Overnight Mail Boise, ID 83707-9736 ( ) Via Hand Delivery Attorney for Dr. Christopher Tobe

Rebecca A. Rainey