Friday, December 6, 2013

Ager v. Jane C. Stormont Hospital and Training School for Nurses case brief

Ager v. Jane C. Stormont Hospital and Training School for Nurses case brief summary
622 F.2d 496 (1980)

Appellant attorney challenged the judgment of the United States District Court For the District of Kansas, which in the course of an underlying medical malpractice suit entered a contempt order against the attorney in her capacity as plaintiff's attorney. The attorney, citing Fed. R. Civ. P. 26(b)(4), refused to comply with an order compelling discovery regarding non-witness experts.

A medical malpractice lawsuit was filed against a doctor and a hospital on behalf of a woman severely injured during her birth. The doctor filed interrogatories requesting the identity of all persons she contacted with regard to the doctor's care and treatment. An appointed magistrate ordered compliance with the interrogatories and rejected the woman's position that compliance was not required under Fed. R. Civ. P. 26(b)(4) as applied to non-witness experts.


  • On review, the district court affirmed the magistrate's order. 
  • The attorney filed a formal response to the order and refused to comply. 
  • The district court entered a civil contempt order against the attorney, which she appealed. 
  • On appeal, the court vacated the order and remanded the matter to the district court. It held that the district court was obligated to determine: 
  • (1) whether any non-witness expert was consulted in anticipation of litigation, in which case no discovery was permitted or 
  • (2) whether any non-witness expert was retained or specially employed, in which case it was required to determine if there were extraordinary circumstances justifying the disclosure of the identity and opinions of the non-witness expert.

The court vacated the civil contempt order against the attorney and remanded for a determination regarding the status of the non-witness experts against whom discovery was sought. The court ordered that a two-step process be taken regarding the consultation and/or retention or special employment of the experts and regarding whether exceptional circumstances existed to justify disclosure of the experts' identities or opinions.

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