Ager v. Jane C. Stormont Hospital & Training School For Nurses

622 F.2d 496 (10th Cir. 1980)


Emily (P) was born April 4, 1955, at Stormont-Vail Hospital. During labor, P's mother suffered a massive rupture of the uterine wall and died from the ensuing loss of blood. Premature separation of the placenta from the uterine wall also occurred, resulting in fetal asphyxia. P evidenced signs of severe neurological dysfunction. P is mentally impaired and a permanently disabled quadriplegic with essentially no control over her body functions. P's father filed, a complaint for P for the damages sustained at her birth. The complaint alleged negligence and carelessness. Dr. Tappen (D1) propounded a series of interrogatories to the plaintiff. The specific interrogatories at issue here are 1. Have you contacted any person or persons, whether they are going to testify or not, in regard to the care and treatment rendered by Dr. Dan Tappen involved herein? 2. If the answer to the question immediately above is in the affirmative, please set forth the name of said person or persons and their present residential and/or business address. 3. If the answer to question # 1 is in the affirmative, do you have any statements or written reports from said person or persons? P filed written objections, accompanied by a lengthy brief. D1 answered P's objections. The answer brief was treated as a motion for an order compelling discovery pursuant to Fed.Rules Civ.Proc., Rule 37(a). The Magistrate ordered P to answer the interrogatories. P failed to provide any information concerning consultative experts not expected to testify at trial. P contends that an expert who advises a party that his opinion will not aid the party in the trial of the case falls within the definition of experts informally consulted but not retained or specially employed. The Magistrate ordered P to provide further answers to the interrogatories, specifically defining the terms retained or specially employed. P refused to comply, and civil contempt was ordered against the attorney, and he was committed to custody. The attorney filed an appeal.