# Mason v. Robinson > Supreme Court of Iowa · November 23, 1983 · 340 N.W.2d 236 URL: https://www.frixlaw.com/law-library/cases/9670568 ## Case - **Full name:** Edward E. MASON, Plaintiff, v. the Honorable L. Vern ROBINSON, District Court Judge of the Sixth Judicial District, Defendant - **Court:** Supreme Court of Iowa - **Decided:** November 23, 1983 - **Citations:** 340 N.W.2d 236; 50 A.L.R. 4th 661; 1983 Iowa Sup. LEXIS 1724 - **Precedential status:** Published - **Opinion:** Dissent by Larson - **Judges:** Schultz, Larson, McGiverin - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670568 ## How later opinions describe it (automated extraction) - stating that the court chose to "take a middle ground" between an absolute privilege and no privilege - stating “we conclude our trial courts have wide discretion to quash subpoenas or issue protective orders” - discussing the cases and controversy surrounding the question of compelled expert testimony ## Opinion text LARSON, Justice (dissenting). The effect of this case, it seems to me, is to superimpose on our existing procedural and evidence rules a virtual veto power, in the hands of “expert” witnesses, over the. courts’ well-established claim to “every man’s evidence.” This result does not proceed from a recognition of an established “expert witness” privilege, because there is none. Rather it appears to proceed on the premise that such witnesses owe no duty to testify at all, at least in the absence of a showing of necessity by the litigant seeking to use it as evidence. The majority holds that an expert may be compelled to testify but only upon certain threshold showings. This hybrid procedure, which appears to be unique among all the states, rejects both the majority rule, which is that expert witnesses may be compelled to testify the same as any other witnesses, as well as the minority view, which is that expert testimony cannot be compelled at all. In striking this middle ground, the majority thus rejects the benefit of the majority rule, which is the advancement of the prin *244 ciple of “every man’s evidence” as well as the certainty of the minority rule. The rule adopted by the majority restricts the search for evidence and injects new uncertainties. The majority would concede, I assume, that if inquiry of this witness were limited to observed facts, as opposed to those based upon education, training or experience, he could be compelled to testify without the necessity of the preliminary showing which it requires here. Yet there is no rational basis for applying different rules to witnesses furnishing “scientific” as opposed to “observed” facts. One is the product of learning and experience, the other of direct perception but, if the whole purpose of witness evidence is to assist the fact trier, what is the difference? As will be discussed later, the arguments raised by Dr. Mason as to why he should not be compelled to testify as an expert can be made as well by the nonexpert. This brings me to what I believe is the first major defect in the majority’s analysis, the legal basis of the specialized treatment of expert witnesses. I. The Legal Principles. It is universally recognized that the courts are entitled to “every man’s evidence,” and the majority opinion recognizes this. The only exceptions to the general rule arise under rules of exclusion or privilege. In contrast to other witnesses who may be compelled to testify without any foundation showing of necessity for it and unavailability of other witnesses, the expert witness such as Dr. Mason cannot be compelled to come forward until that threshold showing is made, according to the majority. This disparate treatment must surely be considered a privilege, at least a qualified one. The duty to give testimony is not owed to the litigants or the lawyers, or even the courts, but to the community, or to society as a whole. 8 J. Wigmore, Evidence § 2192, at 73 (McNaughton rev. 1961). The whole life of the community, the regularity and continuity of its relations, depends upon the coming of the witness. Whether the achievements of the past shall be preserved, the energy of the present kept alive and the ambitions of the future be realized depends upon whether the daily business of regulating rights and redressing wrongs shall continue without a moment’s abatement, or shall suffer a fatal cessation. The business of the particular cause is petty and personal, but the results that hang upon it are universal. All society, potentially, is involved in each individual case. The vital process of justice must continue unceasingly. A single cessation typifies the prostration of society. A series would involve its dissolution. The pettiness and personality of the individual trial disappear when we reflect that our duty to bear testimony runs not to the parties in that present cause, but to the community at large and forever. Id. Because the interest in obtaining testimony of witnesses is, in essence, that of the community, it seems reasonable that grounds for a witness privilege or exclusion must be of comparable stature, that is a societal interest rather than the interest of a person, or even a group of persons. That the principle of witness privilege is not based upon concern for the individual is illustrated by the fact we have a statute, Iowa Code section 622.13, which provides that a witness may not be excused from testifying on the ground it will result in personal liability. We held in Gibb v. Hansen, 286 N.W.2d 180, 187-88 (Iowa 1979), that fear for personal safety of a witness gives rise to no privilege, and the Supreme Court, in Piemonte v. United States, 367 U.S. 556, 559 (n. 2), 81 S.Ct. 1720, 1722 (n. 2), 6 L.Ed.2d 1028, 1031 (1961) held that even a fear for the life of the witness and his family was not sufficient to abrogate his duty to testify. The societal, as opposed to personal, interest in witness privileges is apparent from examination of their rationale. The qualified reporter privilege, recognized by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972), and by our court in Lamberto v. *245 Bown, 326 N.W.2d 305 (Iowa 1982) is based upon the first amendment principles which, it is said, “are not for the benefit of the press so much as for the benefit of all of us.” Time, Inc. v. Hill, 385 U.S. 374, 389 , 87 S.Ct. 534, 543 , 17 L.Ed.2d 456, 468 (1967). In Trammel v. United States, 445 U.S. 40, 50 , 100 S.Ct. 906, 912 , 63 L.Ed.2d 186, 195 (1980), the Supreme Court discussed the rationale of the priest-penitent, physician-patient and attorney-client privileges, which is a societal interest in maintaining confidence and trust in their communication. The Supreme Court in Trammel noted the public’s “right to every man’s evidence” and that, because testimonial exclusionary rules and privileges contravene that principle, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Id. (quoting Frankfurter dissent in Elkins v. United States, 364 U.S. 206, 234 , 80 S.Ct. 1437, 1454 , 4 L.Ed.2d 1669, 1695 (1960) (emphasis added.)) Accord, United States v. Nixon, 418 U.S. 683, 709-10 (n. 18), 94 S.Ct. 3090, 3108 (n. 18), 41 L.Ed.2d 1039, 1065 (1974). Consistent with this view, one authority has observed that “[t]he investigation of truth and the enforcement of testimonial duty demand restriction, not the expansion of these [testimonial] privileges. They should be recognized only within the narrowest limits required by principle.” 8 J. Wigmore § 2192, at 73 (McNaughton rev. 1961). With these principles in mind, consider Dr. Mason’s objections in this case: (1) He was not the treating physician; (2) he was not a party to the suit; (3) he had no opinion concerning the medical treatment provided; (4) he was not able to form an opinion without preparation; (5) his testimony would “jeopardize” the research of the National Bariatric Surgery Registry; (6) his testimony would interfere with his duties at University Hospital; and (7) other experts were available, who presumably would not object to testifying. Most of these objections would be as applicable to the nonexpert as well as the expert witness. Moreover, none of these objections rises to the level of a significant societal interest. As to Dr. Mason’s objection based upon the time it would take, it would have taken less of his time if he had simply answered the questions. He was not required to spend time outside of the depositions preparing to testify; Judge Robinson’s order specifically provided that. Anyway, the time of the litigants, lawyers and courts should count for something in this matter. Here the doctor’s refusal to answer these questions began a series of legal proceedings which have now extended over a period of almost two years and have consumed considerable time on the part of all the principals. I believe the prevailing rule is that expert witnesses may be compelled to testify the same as any other. 4 J. Moore, Federal Practice ¶ 26.66[1], at 26-469 (1983) (states this to be prevailing rule; expert, however, cannot be compelled to prepare for testimony); Car ter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir.1972), cert. denied, 412 U.S. 929 , 93 S.Ct. 2753 , 37 L.Ed.2d 156 (1973) (the “weight of authority [is that], although it is not the usual practice, a court does have the power to subpoena an expert witness and, though it cannot require him to ... prepare himself for trial, it can require him to state whatever opinions he may have previously formed, (citations omitted)”); Dixon v. People, 168 Ill. 179, 191-92 , 48 N.E. 108, 111 (1897) (“[W]hen [an expert] is required to answer a hypothetical question, which involves a special knowledge peculiar to his calling, he is merely required to do what every good citizen is required to do in behalf of public peace and public order and in promotion of the public good”). The court in Dixon said the expert in possession of “scientific” facts should be treated as any other fact witness. See also Kaufman v. Edelstein, 539 F.2d 811, 820 (2d Cir.1976) *246 (“no constitutional or statutory privilege against the compulsion of expert testimony, and we perceive no sufficient basis in principle or precedent for holding that the common law recognizes any general privilege to withhold ... expert knowledge”); Wright v. Jeep Corp., 547 F.Supp. 871, 873 (E.D.Mich.1982) (held expert could be compelled to testify, weighing the duty to testify against certain societal interests). At common law there was no privilege for expert witnesses, although there are arguments that might support at least a qualified privilege. A few federal courts invoked privilege as a ground for denying discovery of expert information, but this view was repudiated by a majority of the decisions and by the Advisory Committee on Civil Rules. Courts have declined to create a privilege for expert witnesses under Rule 501. There are, however, some restrictions on discovery from expert witnesses under the Civil Rules; it is to be hoped that these restrictions will not be converted into a privilege. (Footnotes omitted). 23 C. Wright and K. Graham, Federal Practice and Procedure § 5431, at 825-26 (1980). II. The Practical Considerations. Completely aside from the legal considerations, I believe the procedure adopted in this case will create uncertainty and confusion in the area of expert testimony. The majority expressly rejects the adoption of any specific standards for application of its expert-witness rule; the only thing which is certain is that the established rules and procedures applicable to witnesses in general will now be inapplicable, and a new procedure without any standards or rules will be substituted. At the outset, it will be difficult in many instances to determine whether this appeal rule is applicable. Under Iowa Rule of Evidence 702, defining “expert” witnesses, almost any witness could be included, at least as to some of his testimony. So we could have two rules applicable to the same witness. This is exactly what happened in Dr. Mason’s case; the court concluded that, because some of his testimony was “expert” and some “nonexpert,” he could be compelled to answer some questions but not others. What is an expert is an inexact determination at best. Looking to the nature of the evidence to determine whether the witness is an expert must necessarily entail a consideration of whether the evidence is “opinion” or “fact,” labels which themselves are subject to considerable uncertainty. Dr. Mason’s case again furnishes an example: When he was asked who, among other doctors, was an expert in this area, he refused to respond, saying that evaluation of the doctor was itself expert testimony. Some, however, might rationally argue this was “fact” testimony. The point is there could be a valid argument as to what rule is applicable, because of disagreement as to the type of witness or evidence involved. Reliance on whether the proposed evidence is “fact” or “opinion” is not realistic, as these terms themselves escape workable definition. As Wigmore has observed, there is no virtue in any test based on the mere verbal or logical distinction between “opinion” and “fact.” There is perhaps, in all the law of Evidence, no instance in which the use of a mere catch-word has caused so much of error of principle and vice of policy; — error of principle, because the distinction between “opinion” and “fact” has consistantly [sic] and wrongly been treated as an aim in itself and a self-justifying dogma; vice of policy, because if this specious catch-word had not been so handily provided for ignorant objectors, the principle involved would not have received at the hands of the Bar and the Bench the extensive and vicious development which it has had in this country. It is necessary now to notice why, so far as the principle or the reason of the thing is concerned, the law takes no more special account of a logical difference between “opinion”-testimony and “fact”testimony than between testimony by a short witness and testimony by a tall witness. *247 Wigmore, supra § 1919, at 14. And, another authority has said that [t]his classic formula [for distinguishing fact and opinion], based as it is on the assumption that “fact” and “opinion” stand in contrast and hence are readily distinguishable, has proven the clumsiest of all the tools furnished the judge for regulating the examination of witnesses. C. McCormick, Evidence § 11, at 23 (1972). Further confusion will result because the litigant seeking to compel expert testimony must show that other “qualified” witnesses are “unavailable.” Yet, who is qualified and what makes a witness available? There are no guidelines provided by this new rule. Is a willing expert “available” if he lives in Denver? Or Los Angeles? And, is a doctor with half Dr. Mason’s experience “qualified”? Objections based on distance required to be traveled have no more bearing as to expert than any other witnesses. Under Iowa Code section 622.66, no witness may be compelled to attend at a distance over 100 miles. In summary, I think an expert witness should be treated like any other. I do not think he can be compelled to prepare for his testimony because this smacks of involuntary servitude. Other objections, such as raised by Dr. Mason, should be considered like those of any other witness and should be considered by the trial court in an application for a protective order. The prophylactic rule adopted by the majority, simply excluding the evidence in the absence of the threshold showing, is not only contrary to the prevailing view; it will cast the district court adrift without specific rules or guidelines and will therefore be virtually unworkable. Judge Joiner, in the Wright case summarized my feelings about this issue. Recognizing that some experts would likely be busy in court, he observed that [t]he solution is not to cover-up the information or its data base because disclosure is too burdensome but to use the tools available to lessen the burden and to permit the information to become available. Wright v. Jeep Corp., 547 F.Supp. at 877 . I would annul the writ. McGIVERIN, J., joins this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670568. Public record. Not legal advice.