This 26-page opinion is a bit like an elephant giving birth to a mouse. Anything different would have been a major shock to the law. We don’t know which part the court thinks is publishable but we’re afraid it’s the several pages dedicated to showing that affidavits are testimonial.

Ryan was killed in an accident with an SFP truck. His widow sued SFP and later also sued the doctors who had treated his injuries; the two cases were consolidated. When she settled with the doctors SFP named them as non-parties at fault and announced its intention to offer Ryan’s malpractice witnesses and her pleadings, disclosure statements, and discovery documents. The trial court ruled that SFP couldn’t force her witnesses to testify but could use their 12-2603 affidavits and Ryan’s discovery/disclosure. At trial the jury returned a defense verdict.

On appeal Ryan argued that her disclosure statements weren’t admissions against interest. The Court of Appeals held that they were. They are evidentiary admissions, i.e., they’re admissible but not conclusive. In a footnote the court says that even if they weren’t admissions they could be used for impeachment, although the real issue here is whether they could be used as prima facie evidence.

Ryan then argued that SFP shouldn’t have been able to blame the doctors because it didn’t have any live witnesses (the court having precluded SFP from calling Ryan’s). The court concludes that Ryan’s disclosure statements themselves were inadequate because, although they explained the alleged acts of negligence in detail, they didn’t contain opinions of medical experts. But SFP also had the expert’s affidavits, which the court eventually concludes qualify as “expert testimony.” 

The court also holds that it wasn’t error to allow SFP to cross-examine Ryan with the expert affidavits, asking her if her counsel had hired the experts and if she remembered the statements defense counsel read from their affidavits.

The problem with the case is that its publication suggests that the issues are close ones. Cases with both personal-injury and malpractice elements are not all that unusual. Cautious personal-injury counsel may now feel the need to depose the plaintiff’s malpractice experts immediately, since we don’t know how a court could preclude their depositions (which are, we trust the Court of Appeals would conclude, testimonial), or even to hire its own. The latter has been known to happen, at great cost. The court should have said that of course a plaintiff can’t meticulously prepare a malpractice case and then try to sweep it under the rug because the personal-injury defendant didn’t duplicate her efforts.

We don’t, in case you were wondering, know enough about the case to report why a defense verdict could result in an appeal about whether the exonerated tortfeasor could blame the doctors who treated the injuries.

(link to opinion)