Simpson v. Heiderich , 4 Ariz. App. 232 ( 1966 )

HATHAWAY, Judge.

M. O. Simpson and Star Simpson, husband and wife, were defendants in a personal injury action tried in superior court, Pima County, Arizona, and have appealed from a judgment entered on a jury verdict in favor of the plaintiff, Margarete Heiderich.

The appellants, owners of the Willow Spring Ranch located near Oracle in Pinal County, Arizona, hired the appellee, Mrs. Margarete Heiderich, as cook and housekeeper on November 10, 1960. One of her duties was to prepare food for two Rhodesian Ridgeback dogs who were on a special diet for breeding purposes.

On December 1, 1960, while the Simpsons were away on a trip, the dogs became excited when two men came to the front door. The dogs rushed into the kitchen, one of them jumped on Mrs. Heiderich and the other ran between her legs, causing her to fall whereby she sustained injuries to her left knee. The grounds upon which reversal is sought are (1) misconduct of a juror, (2) failure to furnish a medical report, and (3) a psychiatrist’s testimony.

MISCONDUCT OF JUROR

During the course of the trial, one of appellee’s witnesses encountered a juror away from the courtroom and a conversation ensued. Appellee’s counsel, upon learning of the conversation, reported its occurrence to the court. The witness testified in chambers and at subsequent contempt proceedings that the juror had commented “tell the woman she hasn’t anything-to worry about, we are going to decide in her favor,” and other remarks in that vein. The juror denied making any statement relative to the outcome of the case. Both denied, under oath, that there was any prejudicial influence or intent to cause such. There was no showing of any attempt to influence the juror.

The appellants assign error to the trial court’s refusal to grant the appellants’ motion for a mistrial in view of the witness’ discussion with the trial juror.

We note that the verdict was unanimous and the result would have been the same even if the offending juror had voted contrary to the majority. There is no showing that any of the other jurors were influenced by the juror’s misconduct nor that the appellants were prejudiced in any way. We cannot assume prejudice. In the- absence of a showing- of prejudice we will not regard the misconduct of the juror as prejudicial. Anderson v. Pacific Tank Lines, Inc., 52 Cal.App.2d 244, 126 P.2d 153, 156 (1942).

Counsel for the appellee has cited the following which we feel is pertinent:

“Misconduct of a juror or jurors warrants a new trial only where the verdict was, or probably was, influenced thereby to the prejudice of the complaining party; and accordingly a new trial is not warranted where it is not shown that the verdict was in any way influenced or that there was even a remote possibility of. its being so influenced by the miscondpcj; of fhe jury.” 66 C.J.S. New Trial § 61.

Also:

“If the facts as to misconduct leave room for a reasonable supposition that even a single juror may have been influenced thereby, it will not be disregarded as harmless, except in those states where unanimous verdict is not required, in which case misconduct will be deemed harmless if a sufficient number assent to the verdict to sustain it, excluding those who were in any way cognisant of, or affected by, the misconduct, or if the juror in connection with whom the claimed misconduct occurred in fact voted against the verdict returned for the appellee.” 5B C.J.S. Appeal and Error § 1780. (Emphasis supplied)

The rule has been enunciated in Arizona that any prejudice to a litigant must-be “affirmatively probable” to constitute grounds to set aside the verdict or grant a new trial. Jacob v. Miner, 67 Ariz. 109, 113, 191 P.2d 734 (1948); Webb v. Hardin, 53 Ariz. 310, 313, 89 P.2d 30 (1939). In view of the fact that the verdict was unanimous and the experienced trial judge determined that no prejudice had resulted, we are not disposed to disturb his ruling. We assume that the appellants’ counsel has been unable to find authority in support of his position since he cites •none.

Though no prejudice is shown in the record of this case, it is imperative that the integrity of juries remain unassailable. Jurors must avoid the very appearance of corruption in discharging their duty. We endorse the trial court’s thorough inquiry and approve of the sanctions imposed.

MEDICAL REPORT

The appellants next claim that the court abused its discretion and committed, reversible error by allowing the .testimony of a psychiatrist who had failed to. furnish them with a medical report of his findings. It appears that the appellants’ attorneys had caused an orthopedic examination of appellee to be made and had furnished a report of that examination to .her' counsel. Written demand was then made under A.R. C.P. Rule 35(b), 16 A.R.S. requesting that the appellee furnish appellants’ counsel “with any and all reports of medical examinations previously or hereafter made of Mrs. Heiderich.”

Rule 35 (b) provides in part:

“1. If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery the party causing the examination tó be made shall be entitled upon request to receive from the party examined a like report of- any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report, the court may exclude his testimony if offered at the trial.”

After the case had been set for trial, Doctor Lindsay Beaton, a psychiatrist, examined the appellee but the appellants were not furnished with a report of his examination pursuant to their request. When the doctor was called to testify at trial, appellants’ counsel invoked Rule 35(b) as grounds for excluding his testimony.

Appellee’s counsel points out that the appellants’ counsel were alerted to the psychiatric aspects of the case by other medical reports supplied to them by the appellee and by Dr. Warren D. Eddy who had examined the appellee at the appellants’ request and had reported:

“ * * * it is rather obvious at the present time that she has a tremendous functional overlay which makes accurate evaluation of the severity of her symptoms impossible. Her physical findings tend to belie anymore than a mild amount of disability as a result of her pathology.” (Emphasis supplied)

The other reports contained pointed references to a mental disability. Dr. Neumann’s report, received by appellants on August 8, 1962 stated:

“She subsequently saw Dr. Charles Elkins who diagnosed ‘psychic shock.’ The patient adds that when she lies down she hears ‘carnival noises’ in her head and at times must sit up half the night.”

* * * * * *

“In conclusion, I believe that most of the patienfs symptoms at this time arc on a functional basis. I believe that this is best characterised as an agitated depression of a reactive nature. I believe further that the patient should have definitive therapy for this condition; I would recommend that she be placed on one of the anti-depressant drugs.” (Emphasis supplied)

Dr. Price’s report, received by appellants on August 8, 1962 stated:

“The diagnoses were: Severe Contusion and hematoma of the left leg, laceration of the scalp, post-traumatic syndrome secondary to the above injuries and the circumstances under which they occurred, mild anemia and possible mild cystitis.

******

“She was referred to the neurosurgeon Charles W. Elkins, M.D., for a consultation. Dr. Elkins informed me that he felt the patient was suffering from psychic results of her accident and the fright which follozved the accident.

******

“She had shown some improvement during the five months she was under my care, but I would anticipate that she will continue to suffer from the effects of the accident and the psychic trauma for perhaps another year.” Emphasis supplied)

At the pretrial conference, appellants’ counsel should have been aware of the fact of Dr. Beaton’s psychiatric examination when he refused to stipulate to medical expenses of the appellee. These included the hill of Dr. Beaton which was set forth in the itemized statement of claimed damages in the appellee’s pretrial memorandum. At pretrial the appellee’s attorney opposed appellants’ request for a continuance on the ground that some of the doctors listed on the pretrial memorandum, Dr. Beaton among them, would be witnesses for the appellee and had been committed to a definite date for their appearance in court. The requested continuance was denied for that reason.

We agree with appellants that Rule 35(b) imposed a duty upon appellee’s counsel to deliver Dr. Beaton’s report (existence of which is not disputed) to appellants. This rule is an important discovery tool. The whole object of discovery is that mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, 460 (1947).

The present wording of Rule 35 (b) supports the trial court’s ruling. The only instance in which exclusion of medical testimony is authorized is when the doctor himself failed or refused to make such report after being ordered by the court to do so. Since the court’s discretion to exclude the testimony could be exercised only after (1) refusal of the examining party to deliver the report, (2) motion and notice, (3) an order requiring delivery and (4) the physician’s failure or refusal to comply, the trial court properly overruled appellants’ objection to Dr. Beaton’s testifying. In so holding, we do not mean to imply that we sanction concealment or evasion of discovery procedures, but unfortunately the subject rule as drafted vests the trial court with no authority to reject the medical testimony under the circumstances of this case.

It behooves us to point out that the question raised in this appeal would have been obviated if this subject had been adequately covered in the pretrial conference. Rule 16(a) (4), Rules of Civil Procedure, 16 A.R.S., specifies “The limitation of the number of expert witnesses” as one of the subjects to be taken up at a pretrial conference. The identical provision is contained in the counterpart federal rule of civil procedure. Were this done, both parties would have been enlightened as to the names and number of expert witnesses to be called. A modicum of diligence on the part of counsel would have resulted in production of the withheld report, thereby eliminating the possibility of the element of surprise and objection under Rule 35 to the testimony of Dr. Beaton.

TESTIMONY OF PSYCHIATRIST

The attorneys take opposing views as to whether Dr. Beaton was consulted for the purpose of treating appellee or testifying at trial. Apparently the trial court found that the primary purpose was treatment and we believe that the record supports this conclusion. Therefore our consideration of the appellants’ arguments will be based on Dr. Beaton’s status as a treating physician. The admission of the doctor’s testimony as to the appellee’s history related by her during consultations and otherwise unsupported in the evidence is assigned as error.

The history related by the appellee and retold on the stand by Dr. Beaton included a narrative of the circumstances and details of the occasion of her injury; her reaction to the injuries and her expressed fear that she was not covered by industrial insurance; the possibility of the loss of her social security benefits and that, perhaps, she would be unable to become a citizen because of indebtedness. The doctor testified that the appellee demonstrated a strong responsibility toward the job she had taken with the appellants. In order to explain the effect of the anxiety created by her inability to perform her job and the functional overlay thereby created, in his opinion, he related the early background of the appellee, including her strong desire to please her father and to show her worthiness. Tragic experiences were related, including the loss of an epileptic child who was killed in a Nazi euthanasia program and the loss of her husband who was executed by the Nazis.

The doctor opined that the appellee had “unconsciously built up a self-image of a responsible, reliable hard-working person whose life has been built about this,” and due to the period of disability “she has become unconsciously but entirely genuinely convinced she no longer can work, and has become depressed, anxious and convinced that she would never be able to serve any of the?purposes around which she has constructed her whole life.” He concluded that her injuries had broken down her “lifelong defenses and made her a neurotic invalid.”

Appellants claim that the testimony of the doctor as to statements made to him by appellee were hearsay and therefore inadmissible. It is true that the doctor’s testimony as to such statements was inadmissible to prove the truth of the facts therein contained. But here Dr. Beaton recounted data elicited from appellee during the course of her seeking treatment so that he could explain the basis on which he formulated his diagnosis and prognosis. When used to show the basis of his expert opinion, a doctor may testify to the history given him by the patient as a non-hearsay use. State v. Griffin, 99 Ariz. 43, 49, 406 P.2d 397 (1965)¹; Wise v. Monteros, 93 Ariz. 124, 126, 379 P.2d 116 (1963) ; See also : Reid v. Quebec Paper Sales & Transportation Co., 340 F.2d 34, 38 (2d Cir. 1965) ; Johnson v. Aetna Life Insurance Co., 221 Cal.App.2d 247, 34 Cal.Rptr. 484, 487 (1963); Smith v. Ernst Hardware Co., 61 Wash.2d 75, 377 P.2d 258, 261 (1963). Where, as here, the appellee’s recitals to Dr. Beaton were for the purposes of treatment, the fact that she had already retained an attorney is not controlling as to the admissibility of the recitals. Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130, 134 (1963) ; Thompson v. Nee, 12 Wis.2d 326, 107 N.W. 2d 150, 152 (1961).

The psychiatrist, even more than any other physician, relies upon statements of the patient in order to formulate his opinion. Modern psychodynamic psychiatry is based upon the premise that the human mind (and body) is indivisible—that human thought, feeling and behavior are not a mosaic of individual faculties. Every tiny bit of information communicated to the psychiatrist becomes an integral part of his comprehension and contributes to the record of his clinical judgment.² Conceivably the clinical history may be exaggerated, but this can be brought out with proper cross-examination.

Appellants claim that reversible error was committed in that the lower court permitted Dr. Beaton, over objection, to testify to the contents of reports made by a clinical psychologist, to whom he had referred the appellee in the course of her treatment. When the psychiatrist was asked if the psychological reports tended to confirm his findings, the court sustained the appellants’ objections.

Appellee’s counsel rephrased the question and asked, “Was there anything which you may have learned from Dr. Tharp which in any way changed your opinion respecting the emotional invalidism of this lady?” An obj ection to the question was overruled and the witness responded in the negative. Appellee’s counsel then asked if it was customary and usual to refer a patient to a psychologist to arrive at a complete therapy. The following exchange ensued:

“A. I don’t know whether I would say it is customary and usual. ³ Personally when I am taking on any one for therapy I like to have a clinical psychologist’s report. I suppose with this same analogy, if a •physician were, treating a person for anemia, he would like to have a bipod count, which is an objective test which aids one, first, in making ; ; a diagnosis, and second, in defining obj ectively those areas which may be (therapeutively) accessible.

“Q. Was your reference to Mrs. Heide- ■ 'rich' to Df'. Heiderich reasonable and necessary in this particular case?

“A: To Dr. Tharp?

“Q. Dr. Tharp, yes.

“A. I think it was reasonable and neces- ‘ sary.”''

i. ¡Appellants’counsel remained silent. ■We are of the opinion that if the record discloses at any’ point that Dr. Beaton predicated his opinion upon that of another expert; it must'be here. However, failure of. appellants’ counsel to object to this line of questioning precludes consideration of the propriety of the admission of the testimony.

The final assignment of error is directed to the trial court’s refusal to instruct on contributory negligence which was alleged in the answer. Counsel indicated that he would submit special instructions thereon but failed to do so and is therefore deemed to have waived request for such instructions. Rule VIII (b) Uniform Rules of Practice, 17 A.R.S.

The judgment is affirmed.

KRUCKER, C. J., concurs.

1 . The Supreme Court of Arizona stated:

“The jury must be given an opportunity to evaluate the expert’s conclusion by his testimony as to what matters he took into consideration to reach it. Therefore the psychiatrist should be allowed to relate what matters he necessarily considered as a ‘case history’ not as to indicate the ultimate truth thereof, but as one of the bases for reaching his conclusion, according to accepted medical practice.” 99 Ariz. at 49, 406 P.2d at 401.

2 . The Psychiatrist As An Expert Witness: Some Ruminations and Speculations, Diamond and Louisell, 63 Mich.L.Rev. 1335 (June 1965). The authors point out that it is difficult, but nevertheless essential, that the psychiatrist convincingly communicate to the jury the relevancy of the patient’s total life history and suggest “that in all instances the psychiatric expert be allowed to relate to the court exactly how he reached his opinion and what were the sources of his information.”

3 . It is worthy of note that when the record establishes the practice of psychiatrists to rely upon psychologists’ reports in aid of diagnosis, it has been held that the psychiatrist may render his expert opinion despite its being partially based on such reports. Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637, 642 (1962); Smith v. United States, 122 U.S. App.D.C. 300, 353 F.2d 838, 842, note 8 (1965).