Davis, K. Paul

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Volume 69 | Issue 2 Article 11February 1967Evidence--Medical Malpractice--Expert Testimonyof Defendant Physician When Called as AdverseWitnessK. Paul DavisWest Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Evidence Commons, and the Medical Jurisprudence CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationK. P. Davis, Evidence--Medical Malpractice--Expert Testimony of Defendant Physician When Called as Adverse Witness, 69 W. Va. L. Rev.(1967).Available at: https://researchrepository.wvu.edu/wvlr/vol69/iss2/11WEST VIRGINIA LAW REVIEWcalled for temperance in their application,2" the need for somecontrol is apparent.Although the defendant's rights may be protected by the sug-gested methods, the eventual solution lies in a working agreementbetween the news media and the judiciary. An initial acceptance ofthe necessity for such controls and voluntary restraint by boththe press and the Bar should effect an harmonious solution tothe conflict.lack William DeBoltEvidence-Medical Malpractice-Expert Testimony of DefendantPhysician When Called as Adverse WitnessP, brought a medical malpractice suit alleging that her colonwas torn by the negligent use of a bardex tube during X-rayprocedures in Ds' office. At the trial Ds were called as adversewitnesses. The court refused to permit P to adversely examine Dson matters involving their judgment, knowledge and opinions asexperts. The trial court, directed a verdict for Ds. Held, affirmed.In a medical malpractice action P will not be permitted to call adefendant physician as an adverse witness and extract experttestimony from him to prove a charge of malpractice. Hoffmanv. Naslund, 144 N.W.2d 580 (Minn. 1966).It is well settled that a defendant physician can be called as anadverse witness and be examined as to pertinent facts in the case.'However, the issue is not settled as to whether such defendantcan be required as an adverse witness to give his expert opinion onthe matters in question. Although the courts are about equallydivided on this question, the trend is toward requiring defendantphysicians to give testimony involving their expert knowledge andopinion when called as adverse witnesses.'25 The Supreme Court, 1965 Term, 80 HA.v. L. REv. 91, 185 (1966).26 U.S. CONST. amend. VI.27 Geise v. United States, 265 F.2d 659 (9th Cir. 1958).1 McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20,203 N.E.2d 469 (1964); Hunder v. Rindlaub, 61 N.D. 389, 237 N.W. 915(1931).2 Annot., 88 A.L.R.2d 1186 (1963).[Vol. 691Davis: Evidence--Medical Malpractice--Expert Testimony of Defendant PhysPublished by The Research Repository @ WVU, 1967CASE COMMENTSThe case of Ericksen v. Wilson,3 upon which the principal caserelied in reaching its decision, is a leading case supporting theproposition that expert testimony cannot be extracted from adefendant physician when called as an adverse witness in a mal-practice action. In Ericksen the court stated that cross-examinationunder a rule similar to Federal Rule of Civil Procedure 43(b) wasnot designed to force a defendant into becoming a plaintiffs expertwitness and held that the trial court in its discretion could limitthe extent of the cross-examination of the adverse party. Therationale followed by the courts in reaching the position reflectedin the Ericksen case is simply that it is not the purpose of a ruleallowing examination of adverse witnesses to permit the plaintiffto establish his case in chief by expert opinion secured from thedefendant.4 The underlying basis for this rationale seems to bethat it would be unfair to allow the plaintiff to force the defendantto become his expert.' Other than this "not the purpose" of the ruleargument the cases offer no insight into why such a line of inquiryby the plaintiff should not be permitted.On the other hand, a series of more recent decisions have pre-sented convincing arguments why expert opinion should be allowedto be elicited from the defendant physician when called as anadverse witness in a medical malpractice action. The CaliforniaSupreme Court in Lawless v. Calaway6 stated that the purpose of astatute allowing a defendant to be adversely examined is to enablea party to elicit from his adversary any relevant matter in issue inthe case. Since expert testimony is ordinarily required to provethe relevant issues in an action for malpractice, it necessarily follows3266 Minn 401 123 N.W.2d 687 (1963). This case cites six cases aspersuasive authority ?or the holding: Forthofer v. Arnold, 60 Ohio App 43621 N.E.2d 869 (1938) and Wiley v. Wharton, 68 Ohio App. 345, 41 N.E.2d255 (1941) were subsequently overruled by Oleksiw v. Weidener, 2 Ohio St.2d 147, 207 N.E.2d 375 (1965); McDermott v. Manhattan Eye, Ear &Throat Hosp., 16 App. Div.2d 374, 228 N.Y.S.2d 143 (1964) was appealedand reversed as reported in 15 N.Y.2d 20, 203 N.E.2d 469 (1964): 'Hull v.Plume, 131 N.J.L. 511, 37 A.2d 53 (1944) is distinguishable because ofwording of the statute and a related local evidence rtang; leaving only a1939 and 1913 case as proper authority, Hunder v. Rindlaub, 61 .. 389,237 N.W. 915 (1931) and Osborn v. Carey, 24 Idaho 158, 132 Pac. 967(1913).4 Hundred v. Randlaub, 61 N.D. 389, 237 N.W. 915 (1931); Osbornv. Carey, 24 Idaho 158, 132 Pac. 967 (1913).- Oleksiw v. Weidener, 2 Ohio St.2d 147, 207 N.E.2d 375 (1965);Ericksen v. Wilson, 266 Minn. 401, 123 N.W.2d 687 (1963).624 Cal.2d 81, 147 P.2d 604 (1944).2West Virginia Law Review, Vol. 69, Iss. 2 [1967], Art. 11https://researchrepository.wvu.edu/wvlr/vol69/iss2/11WEST VIRGINIA LAW REVIEWthat the standard of care ordinarily exercised by doctors in thecommunity (being a relevant issue) can be established by theplaintiff under an "adverse witness" statute. A more recent case,McDermott v. Manhattan Eye, Ear and Throat Hosp.,7 pointed outthat modern rules have removed the common law disabilities ofparties to testify as witnesses. The court went on to say that plainsense and reason suggest that any living witness who can throwlight upon a fact in issue should state what he knows. The doctor'sknowledge of proper medical practice and his possible awarenessof his deviation from the standard is as much a "fact" as are theexamination and diagnosis that was made. The Ohio court inOleksiw v. Weidener8 pointed out that the cases not permitting theadverse witness to give expert opinion do not specify anythinginherently wrong with allowing such questioning, but seem to basetheir holding on the idea that it would not be fair or sporting toallow the plaintiff to force the defendant to become his expert.The court stated that fairness should not be the question, nor shouldthe question be one of self-incrimination. "A civil defendant hasno protection against subjecting himself to liability. If his testi-mony will provide facts which will aid the court in arriving at ajust decision, he has a duty to testify." The benefit to the judicialsystem under this interpretation of "adverse witness" statutes faroutweighs any loss to the sporting aspect of adversary proceedings.In what appears to be the only federal case in point, the eighthcircuit in Thompson v. Lillehei,9 while not ruling on the issue,indicated that the plaintiff in a malpractice suit under Rule 43(b)of the Federal Rules of Civil Procedure" could elicit opinion fromthe adverse witness. The court, however, refused to reverse thetrial court for limiting plaintiffs' line of inquiry because the plain-tiffs failed to demonstrate that they were prejudiced by the trialcourt's ruling.Rule 43(b) of the West Virginia Rules of Civil Procedure is7 15 N.Y.2d 20, 203 N.E.2d 469 (1964).8 2 Ohio St.2d 147, 207 N.E.2d 375 (1965).9273 F. 2d 376 (8th Cir. 1959) (dictum).10 "Scope of Examination and Cross-Examination . . . A party may callan adverse party . . . and interrogate him by leading questions and contra-dict and impeach him in all respects as if he had been called by the adverseparty .... FED. R. Crv. P. 43(b).(Vol. 693Davis: Evidence--Medical Malpractice--Expert Testimony of Defendant PhysPublished by The Research Repository @ WVU, 1967CASE COMMENTSexactly the same as federal rule 43(b)." In construing this rule theWest Virginia court in Duling v. Blueield Sanitarium, Inc., 2 bydictum, indicated that expert testimony could be extracted froman adverse witness. Although this was not a malpractice case, adoctor, being a director of the hospital, was called as an adversewitness under rule 43(b). The court, while not required to ruleon the point, said that the trial court erred in holding that thedoctor was not required to answer any proper question involvinghis expert knowledge or expert opinion as a member of the medicalprofession.Although the Duling case is the only West Virginia case thatdeals directly with this question of law, prior West Virginia casesindicate that a liberal interpretation of 43 (b) is warranted. Rule43(b) permits the calling of an adverse party and questioning himas if on cross-examination. This takes on special meaning whencombined with the fact that in West Virginia a party to a suit may,on cross-examination, be questioned as to all pertinent issues.1"Since a showing of lack of professional skill is a pertinent issue ina malpractice case generally provable only by expert testimony,"4the conclusion seems inescapable that a physician in West Virginiashould be required to give expert testimony as an adverse witness.The reasoning here developed gains added strength when combinedwith the fact that in West Virginia an expert can be subpoenaedand compelled to testify concerning his expert opinion and knowl-edge. 5The principal case stands for the proposition that a plaintiff ina medical malpractice suit can not compel the defendant physicianunder an "adverse witness" rule to give expert testimony. Al-though the holding is supported by authority, it appears not to bein keeping with the more recent decisions and has little argumentivesupport. The West Virginia court, by dictum, appears to be inaccord with the recent trend, i.e., would require answers to ques-I LucAR AmD SILVE~smI, W. Va. RuLEs, 353 (1960).12149 W. Va. 567, 142 S.E.2d 754 (1965) (dictum).'3 Ingles v. Stealey 85 W. Va. 155, 101 S.E. 167 (1919).14 Schroeder v. Adldns, 149 W. Va. 400, 141 S.E.2d 352 (1965). Butsee Buskirk v. Bucklew, 115 W. Va. 424, 176 S.E. 603 (1934).Is Ealy v. Shetler Ice Cream Co., 108 W. Va. 184, 150 S. E. 525 (1929).See Hull v. Plume, 131 N.J.L. 511, 37 A.2d 53 (1944) where an oppositeholding was the basis for not requiring expert opinion under the New Jerseyadverse witness statute.4West Virginia Law Review, Vol. 69, Iss. 2 [1967], Art. 11https://researchrepository.wvu.edu/wvlr/vol69/iss2/11WEST VIRGINIA LAW REVIEWtions put to a defendant physician called as an adverse witnessinvolving his expert knowledge or expert opinion. This dictum issupported by related West Virginia cases and appears to be anaccurate forecast of the court's position.K. Paul DavisIncome Tax-Reincorporation and LiquidationD, corporate stockholders of a closed corporation, adopted asection 337 plan of complete liquidation which provided for dis-solution of the corporation and distribution of all the assets withintwelve months. Pursuant to the plan, the operating assets of theliquidated corporation were transferred to a new corporation inexchange for stock. The remaining liquid assets of the liquidatedcorporation were distributed to the stockholders. The liquidatedcorporation was then dissolved. The transaction was bona fide inevery respect and any tax avoidance purpose was negligible. Dreported their gain on the liquidation as a long term capital gain.The liquidated corporation's return reported no taxable income onthe sale of assets under section 337 of the Internal Revenue Code of1954. The Commissioner contended that this transaction constituteda section 368 reorganization; therefore, the distributions to stock-holders should be taxed as ordinary income and the gain on thesale of operating assets should be recognized. The Tax Court ruledin favor of the taxpayers and the Commissioner appealed. Held,affirmed. (1) Assets received by shareholders in a liquidationpursuant to a reincorporation transaction were taxable at capitalgains rates; and, (2) the liquidated corporation received norecognizable gain on the sale of its assets. Commissioner v. Berg-hash, 361 F.2d 257 (2d Cir. 1966).In recent years the tax avoidance possibilities of liquidation-reincorporations have been quite perplexing to tax advisors, theCommissioner, Congress and the courts. Three interrelated ques-tions frequently arise in connection with this type of a transaction.(1) Should the transfer of operating assets to a new corporationcontrolled by the shareholders of the liquidated corporation and[Vol. 695Davis: Evidence--Medical Malpractice--Expert Testimony of Defendant PhysPublished by The Research Repository @ WVU, 1967

Evidence--Medical Malpractice--Expert Testimony of Defendant Physician When Called as Adverse Witness

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Evidence--Medical Malpractice--Expert Testimony of Defendant Physician When Called as Adverse Witness

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