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Marcott v. Louisiana Pacific Corp.

Court of Workers Compensation of Montana

October 21, 1994

BRUCE MARCOTT Petitioner
v.
LOUISIANA PACIFIC CORPORATION Respondent/Insurer/Employer.

          ORDER REGARDING VARIOUS MOTIONS

          Mike McCarter JUDGE

         The Court met with counsel on October 20, 1994, to discuss three motions filed by the petitioner, as well as the numerous objections filed by respondent concerning exhibits. This Order will reflect the disposition of these matters at that time.

         I

         The first motion under consideration at the time of the conference was claimant's Motion to Strike, wherein he sought to strike a letter produced at the deposition of Dr. David King. The letter was from claimant's counsel to Dr. King. Claimant sought to suppress the letter because respondent delivered a Subpoena Duces Tecum to the doctor at the time of the deposition and had not previously disclosed his intent to do so. It should be noted that the deposition was noticed by the claimant.

         Depositions may be taken without subpoena, and that is customarily the case when doctors are involved. During medical depositions it is a reasonable if not essential assumption that the doctor will not only have his file for the patient available but will rely on it during his testimony. The files are routinely attached to the deposition transcript. It should have come as no surprise that respondent's counsel would request an opportunity to view materials in the file, with or without a subpoena. Under these circumstances, failure to notify claimant's attorney in advance of the subpoena was not prejudicial.

         The claimant admits in its motion that the letter is "completely innocuous" but argues that its the principle which is at stake. The Court has little time or patience for motions brought merely on principle and in absence of potential prejudice to the moving party.

         The motion is denied.

         II

         The second motion considered was Petitioner's Motion to Compel wherein petitioner sought to compel further answers to Interrogatories 2, 5 and 6 of Petitioner's First Set of Interrogatories.

         Interrogatory 2 requested expert witness information. In its response the respondent identified Dr. Donald P. Harrell as an expert and specified the subject matter of his testimony and the opinions which he will express at trial. Claimant asserts that the disclosure was insufficient and that the opinions were "coached [sic] in vague and ambiguous language." (Petitioner's Motion to Compel and Brief in Support Thereof at 2.) He cites Montana Power Co. v. Wax, 244 Mont. 108, 796 P.2d 565 (1990), as authority for his argument. Having reviewed the answer in this case, the Court finds that it is adequate and that it is not comparable to the answer found deficient in Wax. The motion regarding Interrogatory 2 is denied.

         Interrogatory 5 requested respondent to "state specifically each and every fact upon which you base your denial of liability for this claim." The respondent registered objections based on attorney work product and over breadth but went on to state:

However, without waiving the objection, our denial of liability is based on the fact that the injury occurred while Petitioner was walking. It is based on the further fact that, due to Petitioner's anatomical make-up, he was susceptible to the injury that is prominent among individuals in Petitioner's age group; often occurring during benign activities such as walking. See also Respondent's Response 2, Petition for Hearing.

(Petitioner's Motion to Compel and Brief in Support Thereof at 5)

         This answer is cursory and vague but does give the import of the respondent's defense. During discussion with counsel, the Court ascertained that all witnesses who will be called at trial have either been deposed or claimant's attorney has been furnished with information concerning the substance of their testimony. Claimant has therefore been provided with a comprehensive picture of what evidence may be introduced by respondent at trial. The discussion with counsel resolved any questions ...


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