WALTERS, J.
In this civil action, we decide that ORCP 44 C required plaintiff to deliver to defendants, at defendants' request, a copy of all written reports of examinations related to the psychological injuries for which plaintiff sought recovery, including, specifically, the report of an examination by a psychologist retained by plaintiff's counsel for the purpose of the litigation. Because defendants requested and plaintiff failed to deliver that report, the trial court entered an order, pursuant to ORCP 44 D, precluding the psychologist from testifying at trial, and defendants ultimately prevailed. The Court of Appeals affirmed the decision of the trial court. A.G. v. Guitron, 238 Or.App. 223, 241 P.3d 1188 (2010). We affirm the decision of the Court of Appeals and the judgment of the trial court.
The facts underlying plaintiff's claim for damages are not relevant to the issue of statutory interpretation that we decide, and we need not repeat them in detail here.
Plaintiff produced the reports of her treating psychologist, Dr. Puma, but did not produce the reports of Dr. Green, a psychologist whom plaintiff's counsel had retained for purposes of the litigation.
At trial, plaintiff called Green to testify. Defendants objected on the grounds that Green had conducted an examination of plaintiff and that plaintiff had failed to provide the reports of that examination. As a result, defendants argued, plaintiff should not be permitted to call Green as a witness. Plaintiff responded that Green's report was not discoverable because he was an expert witness retained for the purpose of litigation,
The trial court agreed with defendants and excluded Green's testimony.
As noted, the question presented in this court is one of statutory interpretation— specifically, whether ORCP 44 C required plaintiff to produce the report of an expert who examined plaintiff for purposes of litigation and not for purposes of treatment. ORCP 44 C provides:
The text of ORCP 44 C supports the decision of the trial court. ORCP 44 C required plaintiff, the party making a claim for injuries, to deliver to defendants, the party against whom the claim was pending, at defendants' request, a copy of "all written reports" of "any examinations" relating to plaintiff's injuries.
Plaintiff argues, however, that ORCP 44 C cannot be read in isolation. Read in context, plaintiff argues, ORCP 44 C governs only the reports of experts who examine and treat a
Under ORCP 44 B, a defendant who has a plaintiff examined by a litigation expert must provide the plaintiff with a copy of that expert's report. After delivery, the defendant has the right to request and receive "like" reports from the plaintiff, i.e., reports of the plaintiff's litigation experts. ORCP 44 C, plaintiff contends, is intended to address a different subject—production of the reports of treating experts. According to plaintiff, ORCP 44 C requires a plaintiff to disclose the reports of his or her treating experts without regard to whether a defendant has had or will have the plaintiff examined by the defendant's own litigation experts. If ORCP 44 C were to also require a plaintiff to produce the reports of his or her litigation experts, plaintiff asserts, it would be redundant of ORCP 44 B and inconsistent with that section's more particular exchange requirements.
As further context for that interpretation of ORCP 44 C, amicus curiae Oregon Trial Lawyers Association points to the fact that, in the absence of specific authorization, the Oregon Rules of Civil Procedure do not permit expert discovery. See Stevens v. Czerniak, 336 Or. 392, 404, 84 P.3d 140 (2004) (so stating). In deciding whether such authority exists, amicus argues, this court should be cognizant that the physician-patient, psychologist-patient, and attorney-client privileges protect the confidentiality of expert communications. Amicus urges that we consult the legislative history of ORCP 44 and its predecessor, former ORS 44.620 (1974), repealed by Or Laws 1979, ch 284, § 199, contending that that history establishes that the legislature intended to limit the reach of ORCP 44 C to the reports of treating experts.
ORCP 44 C is a rule "to which we apply the usual method of statutory interpretation." Pamplin v. Victoria, 319 Or. 429, 433, 877 P.2d 1196 (1994). Plaintiff and amicus are therefore correct that, to determine its meaning, we look to its context as well as its text, and that, to the extent we deem appropriate, we may also consider legislative history. See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (explaining statutory interpretation methodology). Existing case law forms a part of a statute's context, SAIF v. Walker, 330 Or. 102, 108-09, 996 P.2d 979 (2000), and we begin our analysis with a review of the law as it existed in 1973 when the legislature enacted the predecessors to ORCP 44, former ORS 44.610 through 44.640 (1974), repealed by Or Laws 1979, ch 284, § 199.
At that time, this court had decided that a defendant in a personal injury action could request, and a trial court had "inherent general power" to order, that the plaintiff submit to a physical examination by medical experts selected by the defendant or designated by the court. Carnine v. Tibbetts, 158 Or. 21, 27, 74 P.2d 974 (1937). In reaching that conclusion, the court rejected the minority view. Id. at 31, 74 P.2d 974. That view was described and rejected in a Washington case that this court cited with approval. Id. at 28-29, 74 P.2d 974. In Lane v. Spokane Falls & N. Ry. Co., 21 Wn. 119, 121, 57 P. 367, 367 (1899), the Washington court summarized the minority view that
Instead, this court agreed with the majority view identified by the Washington court. Carnine, 158 Or. at 29-31, 74 P.2d 974. In Lane, the Washington court explained that "[c]ourts should not sacrifice justice to notions of delicacy, and knowledge of the truth is essential to justice." Lane, 21 Wash. at 121, 57 P. at 367.
As of 1973, this court also had decided that a plaintiff could obtain a copy of the report of the defendant's examining expert. Nielsen v. Brown, 232 Or. 426, 374 P.2d 896 (1962). In Nielsen, the court considered whether the plaintiff could call, as a witness in her case, a physician who had been retained by defense counsel to examine the plaintiff. The defendant objected to the physician's testimony on the ground that it was confidential under the attorney-client privilege and was part of defense counsel's "work product." The court answered the former argument by pointing out that there was no attorney-client relationship between plaintiff and defense counsel. Whatever communication the plaintiff had with the physician retained by defense counsel was not confidential communication between the plaintiff and her lawyer, and, thus, was not protected by the attorney-client privilege.
The court responded to the defendant's argument that it would be unfair to permit the plaintiff to benefit from the "work product" for which the defendant had paid by observing that there would be a competing unfairness in suppressing the evidence that the plaintiff had supplied by submitting to the defense examination. "On balance," the court said, "we think that the problem should be resolved by letting the evidence in, no matter at whose instance or whom it hurts, as an aid in the `search for truth and justice.'" Id. at 444, 374 P.2d 896 (quoting Oregon v. Cahill, 208 Or. 538, 582, 293 P.2d 169, 298 P.2d 214, cert. den., 352 U.S. 895, 77 S.Ct. 132, 1 L.Ed.2d 87 (1956)). The court also noted that it was the practice in some Oregon counties for trial courts to order that defendants provide a copy of the report of the examination to plaintiffs, "as the [f]ederal rules require." The court concluded that there was no reason that such orders should not be issued. Id. at 443, 374 P.2d 896.
Under the federal rules to which the court referred in Nielsen, a defendant could obtain an examination of the plaintiff and, on request, was required to deliver a copy of a report of that examination to the plaintiff. After delivering the report, the defendant could request, and was entitled to receive, a copy of "a like report" from the plaintiff. Former FRCP 35(b)(1) (1937).
Or. Laws 1973, ch 136, §§ 1-3. In 1974, section 1 was codified as ORS 44.610, and sections 2 and 3 were codified as ORS 44.620(1) and (2), respectively.
Sections 1 and 2 reflected the court's rulings in Carnine and Nielsen and addressed only the rights and duties of a party who seeks and obtains an examination of another party. Section 1 permitted a defendant to obtain an examination of a plaintiff, and section 2 required the defendant to deliver a copy of the examining physician's report and "like reports of all earlier examinations of the same condition" to the plaintiff. Unlike the federal rule,
Two representatives of the Bar, Austin Crowe and David Landis, testified in favor of HB 2101. Their testimony, amicus argues, demonstrates that the legislature intended section 3 to require plaintiffs to produce only the reports of treating experts.
At the February 12, 1973, meeting of the House Judiciary Subcommittee, Crowe and Landis explained that they had drafted sections 1 and 2 of the bill to codify existing case law. As recorded in the minutes of the meeting, Crowe identified section 3's purpose as follows:
Minutes, House Judiciary Subcommittee II, HB 2101, Feb. 12, 1973, 1 (statement of Austin Crowe) (emphasis added). However, the tape recording of the meeting reveals Crowe as having used the term "doctors," not "private treating physician." Tape Recording, House Judiciary Subcommittee II, HB 2101, Feb. 12, 1973, Tape 6, side 1 (statement of Austin Crowe).
Crowe then stated, according to the minutes and the tape recording, that "it has been decided by both the plaintiffs' and defense bar in Oregon that it would be more fair and appropriate if there were an exchange between the parties of any doctor's report dealing with a specific action or suit." Minutes, House Judiciary Subcommittee II, HB 2101, Feb. 12, 1973, 1 (statement of Austin Crowe) (emphasis added); Tape Recording, House Judiciary Subcommittee II, HB 2101, Feb. 12, 1973, Tape 6, side 1 (statement of Austin Crowe). He explained that such an exchange would promote settlement and reduce the costs of litigation.
Landis related a particular incident that had occurred in a case that he had tried.
When the Senate Judiciary Committee heard the bill, Crowe and Landis again testified.
In his testimony, Landis reiterated that sections 1 and 2 of HB 2101 would codify existing case law and that section 3 was a new provision. Landis further testified that the bill would help to alleviate the "inequities in the exchange of material between the lawyers before a trial." Section 3 would require the plaintiff's attorney to forward "copies of [his or her] reports" to the defense attorney. Minutes, Senate Judiciary Committee, HB 2101, May 2, 1973, 5 (statement of David Landis).
In hearings before both committees, Landis answered questions from legislators. One question from Representative Stults was whether section 3 contemplated "that monthly forms filled out [by] a doctor regarding the continuation of a disability would be included[.]" Landis replied that he "doubted whether it would include those monthly check-off forms saying a claimant was still unable to return to work, but that the examination report of the injured worker would be subject to discovery." Minutes, House Judiciary Subcommittee II, HB 2101, Feb. 12, 1973, 3 (statement of David Landis) (emphasis added).
In response to a question from another legislator, Landis said that sections 2 and 3 did not require delivery of reports until after a lawsuit had been filed, but that "[t]here is no timing provision that the plaintiff can wait on the independent examination until he has to deliver copies of the report. Then you get into playing games if you are going to have an independent medical examination." Minutes, Senate Judiciary Committee, HB 2101, May 2, 1973, 5 (statement of David Landis). Landis also explained the difference between sections 2 and 3 by saying that the intent of section 2 was to give the report of the examination to the plaintiff's attorney, if the examination was done at the defendant's request. In that instance, Landis said, the defendant could go to court and get a similar report from the plaintiff under section 3, but a defendant also could get the report from the plaintiff under section 3, notwithstanding sections 1 and 2. Tape Recording, Senate Judiciary Committee, HB 2101, May 2, 1973, Tape 28, side 2 (statement of David Landis).
That testimony demonstrates that the drafters of HB 2101 contemplated that, on request, at any time after initiation of an action for personal injuries, a plaintiff would be required to produce the reports of his or her treating experts. The drafters anticipated that early disclosure of such reports could eliminate the need for a defense examination, promote settlement, and reduce costs. Whether the drafters, and, more importantly, the legislature, intended to limit the bill's disclosure requirements to that circumstance is, however, far less clear. We therefore consult the legislature's later discussion and amendment of those statutes for assistance.
In 1978, the Council on Court Procedures (Council) promulgated the Oregon Rules of Civil Procedure. Under ORS 1.735, those rules became effective on January 1 of the following year unless the legislature amended, repealed, or supplemented them. One of the rules that the Council promulgated in 1978 was ORCP 44. The legislature made certain amendments to that rule,
To interpret ORCP 44, we look to the text and context of the rule and the Council's intent. Waddill v. Anchor Hocking, Inc., 330 Or. 376, 382 n. 2, 8 P.3d 200 (2000), adh'd to on recons., 331 Or. 595, 18 P.3d 1096 (2001) ("unless the legislature amended the rule at issue in a particular case in a manner that affects the issues in that case, the Council's intent governs the interpretation of the rule"). See also Lake Oswego Review v. Steinkamp, 298 Or. 607, 610-12, 695 P.2d 565 (1985) (referring to Council's legislative history to interpret rule).
Through ORCP 44 A, the Council extended the applicability of former ORS 44.610 beyond personal injury actions. ORCP 44 A mirrored former FRCP 35(a) and permitted a court to order the examination of a party in any case in which a "mental or physical condition * * * is in controversy."
In ORCP 44 B, the Council added the report exchange provisions of former FRCP 35(b)(1) to former ORS 44.620(1). ORCP 44 B provided:
In the commentary to the first draft of ORCP 44, included in the Council's "Legislative History,"
Comment, Discovery Committee Draft Rules, Council on Court Procedures, Mar 27, 1978, 57.
Finally, in ORCP 44 C, the Council retained the text of former ORS 44.620(2). ORCP 44 C provided:
The Council's commentary explained that ORCP 44 C was taken from ORS 44.620(2) and did not exist in the federal rule. It was "expressly designed to create a duty on the part of plaintiffs in personal injury cases to furnish medical reports apart from any exchange with the defendant or any court-ordered examination." Comment, Discovery Committee Draft Rules, Council on Court Procedures, Mar 27, 1978, 58 (emphasis added). The Council's commentary quoted an earlier comment by the Practice and Procedure Committee of the Bar to the 1973 bill, HB 2101, that is not included in the legislative history of that bill. That comment included the statement that "[t]he purpose of this bill is to require plaintiff to produce copies of the medical reports of his treating physician." Id. (emphasis added).
While the Council was considering ORCP 44, it also was considering a rule that would have permitted much broader discovery of expert reports. That rule, designated as draft rule 36 B(4), and referred to as the Bodyfelt rule, would have required the mandatory exchange of all expert reports, "somewhat equivalent to the existing provisions following a physical examination of an opponent." Fredric Merrill, Memorandum on the Discovery of Experts 1, Council on Court Procedures (1978). In discussing the overlap between draft rule 36 and ORS 44.620, Professor Merrill said:
Id. at 18 (emphasis added). Draft rule ORCP 36 B(4) was controversial, and the legislature declined to adopt it. See Stevens v. Czerniak, 336 Or. 392, 403-04, 84 P.3d 140 (2004) (discussing legislative history of ORCP 36 B(4)). Since 1979, the legislature has made some minor changes to ORCP 44, but has not further discussed the purpose or effect of its provisions.
The history that we have laid out is not definitive on the issue before us, but it is informative. First, that history reveals that,
Second, the legislative history that we have reviewed reveals that the redundancy that plaintiff finds in ORCP 44 B and C, and that is the lynchpin of her argument that we must construe ORCP 44 C to be limited to reports of treating experts, did not exist in former ORS 44.620. Former ORS 44.620(1) required a defendant to produce the reports of his or her litigation experts, but did not require plaintiffs to produce "like" reports. Thus, there could be no argument that, if former ORS 44.620(2) required a plaintiff to produce the reports of his or her litigation experts, it was duplicative of former ORS 44.620(1). Unless former ORS 44.620(2) required a plaintiff to produce the reports of his or her litigation experts, the plaintiff could obtain the reports of the defendant's litigation experts under former ORS 44.020(1), but refuse to disclose his or her own "like" reports.
The legislative history of former ORS 44.620 does not demonstrate an intent to require such an unequal exchange. In fact, Landis, one of the drafters of that statute, considered the existing case law—requiring defendants and not plaintiffs to produce the reports of their examining experts—to be objectionable and informed the legislature of his objection. In this case, plaintiff concedes that the legislature intended to address that problem, but argues that it did so by requiring only that plaintiffs produce the reports of their treating experts. However, there is little evidence that the legislature intended a limited rather than a more complete remedy to the expressed problem. Although both Landis and Crowe referred to a plaintiff's duty to produce the reports of treating experts, Landis also told legislators that the bill permitted defendants to obtain reports from plaintiffs that were "similar" to the reports that defendants were required to provide, and defendants were required to provide the reports of their litigation experts. Both Crowe and Landis generally referred to an "exchange" of reports and emphasized their interest in moving away from the "sporting theory of justice" and the gamesmanship that existing law permitted, and toward early disclosure of all relevant facts.
When the Council promulgated ORCP 44 some five years later, it stated, in the commentary to ORCP 44 B, that, "[i]f no request for a report is made by the examined party, no right to reports from the examined party arises for the examining party." However, the Council also stated, in the commentary to ORCP 44 C, that that rule required plaintiffs to produce reports of examinations "apart from any exchange with the defendant or any court-ordered examination." That commentary is consistent with an intent to adopt, in ORCP 44 B, the specific exchange procedure of former FRCP 35(b)(1), but does not establish that the Council intended to restrict discovery of the reports of litigation experts to that procedure. The Council retained the wording of ORS 44.620 in ORCP 44 C, and there is a good argument that the text of ORS 44.620 required plaintiffs to produce, on request, the reports of all examining experts, including litigation experts.
Although plaintiff has raised a substantial question about the meaning of ORCP 44 C, the contextual clues and history that she has provided and that we have reviewed are not convincing, particularly given the text of the rule which, on its face, is unambiguous. ORS 44.620(2) required, and ORCP 44 C requires, plaintiffs to produce copies of "all written reports * * * of any examinations" relating to the injuries that plaintiffs' claim. The words of statutes and rules of civil procedure are the best indication of the intent of those who promulgate them. See State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009) (words used by legislature to give expression are best evidence of intent).
Plaintiff in this case may well be correct that that interpretation of ORCP 44 C requires plaintiffs to disclose reports of litigation experts that, in the absence of ORCP 44 C, would be protected by the physician-patient, psychotherapist-patient, or attorney-client privileges. The response to that argument is that the legislature created those privileges and, in adopting ORCP 44, limited their reach. Plaintiff agrees that ORCP 44 B requires that the parties exchange the reports of their litigation experts and thereby requires the production of reports that otherwise might have been considered confidential. There is no reason that ORCP 44 C should not have the same effect. In fact, HB 2101 included an amendment of the physician-patient privilege that made that privilege "subject to" the provisions of that act. Or. Laws 1973, ch 136, § 6. Crowe told the legislature that he had obtained the "full approval" of the Oregon Medical Society for that change. Minutes, House Judiciary Subcommittee II, Feb. 12, 1973 (statement of Austin Crowe). OEC 504 and OEC 504-1 also provide that there is no psychotherapist-patient or physician-patient privilege for communications in the course of an ORCP 44 examination, except as provided in ORCP 44 and OEC 503. The lawyer-client privilege defines "representative of the lawyer" to exclude a physician making a physical or mental examination under ORCP 44.
We conclude that, in adopting ORCP 44 C, the legislature, as did this court in Carnine and Nielsen, considered the "search for truth and justice" to be paramount and required plaintiffs to produce, on request, the reports of the experts who examine them for purposes of litigation as well as for treatment. Therefore, we also conclude that, in this case, the trial court was correct that plaintiff was required to produce the report of Green, and did not err by excluding his testimony under ORCP 44 D.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
158 Or. at 33 (quoting 14 R.C.L., Inspection and Physical Examinations § 17 (1916)).
Former FRCP 35 (1937).
The current version of FRCP 35 contains a similar exchange provision. FRCP 35(b)(3) provides:
Comment to Rule 44, Final Draft, Proposed Oregon Rules of Civil Procedure, Council on Court Procedures, Nov. 24, 1978, at 129-30.
