Last month’s Oregon Supreme Court decision in Ransom v. Radiology Specialists of the Northwest, 363 Or 552 (2018) will likely have far-reaching impacts on how discovery is conducted in construction defect cases in Oregon. Ransom involved a plaintiff’s claim for alleged medical negligence case against two of the plaintiff’s former radiologists for alleged failure to properly read her imaging scans, which the plaintiff further alleged led to misdiagnosing her cancer as Stage II instead of Stage IV. Id. at 555-56. At issue on appeal was whether the plaintiff’s attorney could seek an answer from the radiologists about their current interpretation of the imaging scans for the plaintiff. Id. During the deposition the radiologists both testified that they did not have an independent memory of interpreting certain scans back at the time they reviewed such scans. Id. When the plaintiff’s attorney thereafter asked the radiologists to review those same scans during their deposition and answer questions about certain markings identified on the scan, defense counsel objected and instructed the radiologists not to answer on the grounds the questions impermissibly sought expert testimony and/or called for information protected by attorney-client privilege. Id. A trial court later concurred with the defense’s objection and prohibited the radiologists from answering the questions about the present-day interpretations of the scans. Id. at 557. On a writ of mandamus filed by the plaintiff, the Oregon Supreme Court reversed the trial court’s decision. Id. at 572-73.
After reviewing the history surrounding Oregon’s prohibition on expert discovery as discussed in two prior cases, Stevens v. Czerniak, 336 Or 393 (2004) and Gwin v. Lynn, 344 Or 65 (2008), the Supreme Court held that “under ORCP 36B, a participating expert can be asked any questions relevant to his or her direct involvement in the events at issue.” Ransom, 363 Or at 567. The Court further found that because the questions did not ask the radiologists to provide information regarding the content of any attorney-client privileged communications, evidentiary rules on attorney-client privilege did not apply. Id. at 572.
The Court’s holding in Ransom will likely have far-reaching effects in other negligence cases, and in particular, where the defendant possesses some enhanced skill, knowledge or education on a particular topic. For example, plaintiffs in a construction defect case may now be permitted to ask a contractor, architect, or engineer for their present interpretation of plans or specifications, provided the plaintiff’s attorney can establish that such records were part of the documents the defendant reviewed and relied upon in performing work on a building. While in the past such questions may have received an objection and instruction not to answer on the basis of expert testimony and attorney-client privilege, Ransom makes clear such questions are appropriate and may be answered by the deponent. The one area of inquiry which remains an open question is where the defendant has been retained as an expert witness in their own case. As noted by the Court, “[a]lthough defendant argues that Oregon does not permit expert discovery, it does not contend that, because the radiologists have knowledge and skill that would qualify them as experts under OEC 702, plaintiff is barred from deposing them…Defendant also does not argue that any questions that call for the radiologists’ opinions are beyond the scope of permitted discovery as seeking ‘expert testimony.’” Id. at 565. Given that neither argument was raised by the defense in Ransom, it’s unclear what the Supreme Court would do if faced with a fact-pattern in which such an argument existed. Will we now see every defendant in a professional negligence action retained as an expert witness in their own case? And will future expert witness objections, where that fact pattern exists, be upheld? Only time and future litigation will tell.