                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 43725

JAYMIE QUIGLEY, an individual, and      )
PAXTON QUIGLEY, an individual,          )
                                        )
      Plaintiffs-Respondents,           )
                                        )
v.                                      )
                                        )
                                                              Boise, February 2017 Term
TRAVIS KEMP, an individual,             )
                                        )
                                                              2017 Opinion No. 44
      Defendant-Appellant,              )
                                        )
                                                              Filed: May 11, 2017
and                                     )
                                        )
                                                              Stephen W. Kenyon, Clerk
SAINT ALPHONSUS REGIONAL                )
MEDICAL CENTER, Inc., an Idaho          )
corporation, and CHRISTOPHER TOBE,      )
an individual,                          )
                                        )
      Defendants.                       )
_______________________________________ )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, Ada County. Hon. Richard Greenwood, District Judge.

       The order of the district court is vacated, and the case is remanded.

       Duke Scanlan & Hall, PLLC, Boise, for appellants. Keely E. Duke argued.

       Fisher Rainey Hudson, Boise, for respondents. Rebecca A. Rainey argued.
                                 _____________________

BRODY, Justice.
       This case involves a thorny discovery dispute in a medical malpractice case. The issue to
be decided is whether a plaintiff must disclose the identity of a non-testifying medical expert
who has been consulted by a testifying expert to familiarize the testifying expert with the
applicable local standard of care. This issue has been addressed by district courts, but this Court
has never ruled on it. The district court held that Rule 26(b)(4)(B) of the Idaho Rules of Civil
Procedure shielded the Quigleys from disclosing the identity of the non-testifying medical




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expert. Defendant Dr. Travis Kemp was granted a permissive, interlocutory appeal to resolve this
issue.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
         Plaintiffs Jaymie and Paxton Quigley brought this medical malpractice action against Dr.
Travis Kemp, a board-certified orthopedic surgeon, Dr. Christopher Tobe, a board-certified
emergency medicine physician, and Saint Alphonsus Regional Medical Center (“SARMC”). Dr.
Kemp performed surgery on Mrs. Quigley’s right ankle and placed a temporary splint over her
right foot. Following surgery, Mrs. Quigley suffered several acute pain episodes. Allegedly,
SARMC’s nursing staff expressed reservations about Mrs. Quigley being discharged with
uncontrolled pain, but told Mrs. Quigley that Dr. Kemp would not keep her any longer in the
hospital. Mrs. Quigley was discharged.
         Several hours after being discharged, Mrs. Quigley went back to the SARMC emergency
room because of severe pain. Dr. Tobe examined her and admitted her to the hospital. Once
admitted, a nurse cut the splint away from Mrs. Quigley’s foot, providing Mrs. Quigley with
immediate relief. Dr. Kemp examined Mrs. Quigley and noted that the pressure from the post-
operative splint caused permanent damage to her foot that would require future treatment. The
Quigleys later brought this malpractice action.
         Shortly after receiving the complaint, Dr. Kemp sent the Quigleys the following
interrogatory requesting the identity of any medical providers who were called to familiarize an
expert witness with the local standard of care:
                 INTERROGATORY NO.5: Do you intend to call any person as an expert
         witness at trial? If so, with regard to each such person, state:
         (a) the name, address, telephone number, employer and job title or classification
             of such person;
         (b) the subject matter on which the expert is expected to testify;
         (c) any and all opinions the expert witness is anticipated to testify to;
         (d) the substance of the facts and opinions to which the expert is expected to
             testify and a summary of grounds for each opinion;
         (e) the information or materials provided to, or received from, the expert; and
         (f) the name of any medical provider that any of plaintiff's expert(s) called to
             familiarize himself/herself with the applicable standard of care in this case.
(Emphasis added).
         As the case progressed, the Quigleys disclosed Dr. Aprajita Nakra, an out-of-state board-
certified doctor of podiatric medicine, as their liability expert to testify concerning the negligence
of all defendants. As part of their disclosure, the Quigleys included Dr. Nakra’s resume and a


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summary of what steps she took to familiarize herself with the local standard of care as required
by the Medical Malpractice Act (specifically, Idaho Code sections 6-1012 and 6-1013). The
disclosure explained that Dr. Nakra has experience working with board-certified orthopedic
surgeons like Dr. Kemp and is familiar with the national standard of care applicable to them. The
disclosure also provided that Dr. Nakra consulted with a physician assistant who worked with
orthopedic surgeons in Boise at the time Mrs. Quigley was treated and that the physician
assistant confirmed that the national standard of care with which Dr. Nakra was familiar was the
same standard of care that was applicable in Boise at the time of Mrs. Quigley’s surgery. The
disclosure did not name the physician assistant, but stated that the person practiced in a post-
operative setting alongside and in conjunction with board-certified orthopedic surgeons in Boise
at the time of Mrs. Quigley’s surgery.
       Shortly after receiving the disclosure, Dr. Kemp sent the Quigleys a letter requesting the
identity of the physician assistant and asking for available deposition dates. The Quigleys denied
the request on the grounds that the identity of the physician assistant was protected under Idaho
Rule of Civil Procedure 26(b)(4)(B) because the provider was a non-testifying expert. Dr. Kemp
filed a Motion to Compel the identity of the physician assistant in response to his initial
interrogatory, arguing that the identity is relevant to whether Dr. Nakra has adequately
familiarized herself with the local standard of care as well as other issues of credibility. The
Quigleys filed a competing Motion for a Protective Order. The district court denied Dr. Kemp’s
Motion to Compel and granted Plaintiffs’ Motion for a Protective Order prohibiting the
discovery. The district court recognized that this discovery issue has yet to be resolved by this
Court and welcomed definitive guidance on the issue. We granted an interlocutory appeal.
                              II. ISSUE PRESENTED ON APPEAL
       Whether Rule 26(b)(4)(B) of the Idaho Rules of Civil Procedure protects the identity of a
medical provider who was consulted by a liability expert in order to familiarize herself with the
applicable local standard of care.
                                     III. STANDARD OF REVIEW
       “[C]ontrol of discovery is an area within the discretion of the trial court. Therefore, the
proper standard for reviewing a trial court’s grant of a protective order is abuse of discretion.”
Vaught v. Dairyland Ins. Co., 131 Idaho 357, 360, 956 P.2d 674, 677 (1998) (internal citations
omitted). Accordingly, a trial court’s decision to grant or deny a motion to compel will only be



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reversed when there has been a clear abuse of discretion. Doe v. Shoshone-Bannock Tribes, 159
Idaho 741, 745, 367 P.3d 136, 140 (2015). To determine whether a trial court abused its
discretion, this Court examines:
       (1) [W]hether the trial court correctly perceived the issue as one of discretion; (2)
       whether the trial court acted within the outer boundaries of its discretion and
       consistently with the legal standards applicable to the specific choices available to
       it; and (3) whether the trial court reached its decision by an exercise of reason.
Id. (quoting Kirk v. Ford Motor Co., 141 Idaho 697, 701, 116 P.3d 27, 31 (2005)).
                                           IV. ANALYSIS
       The district court denied Dr. Kemp’s Motion to Compel the identity of the physician
assistant based on Rule 26(b)(4)(B) of the 2015 version of the Idaho Rules of Civil Procedure.
The Rule states:
                 A party may not discover facts known or opinions held by an expert who
       has been retained or specially employed by another party in anticipation of
       litigation or preparation for trial and who is not expected to be called as a witness
       at trial, except as provided in Rule 35(b) or except upon a showing of exceptional
       circumstances under which it is impracticable for the party seeking discovery to
       obtain facts or opinions on the same subject by other means.
I.R.C.P. 26(b)(4)(B) (emphasis added). It is important to note that the rule has been subsequently
amended and the new language may now be found at 26(b)(4)(D). However, this amendment and
its minor changes do not substantively change the Rule. This opinion is binding as to the current
version of the Rule as well.
       The district court held that the physician assistant was retained by the Quigleys in
preparation for trial and is not expected to be called as a witness. The district court reasoned that
the facts or opinions at issue are the local standard of care and whether Dr. Kemp met that
standard. Ultimately, the district court concluded that Dr. Kemp had “lots of folks” ready to
testify about the local standard of care, and therefore, he had not made a showing of “exceptional
circumstances” requiring the disclosure of the physician assistant’s identity. We find that the
district court’s reliance on Rule 26(b)(4)(B) was misplaced and warrants reversal.
       Forty years ago, the Idaho legislature passed the Medical Malpractice Act, which requires
plaintiffs in a medical malpractice action to prove the local standard of care that applied to their
medical provider at the time of the alleged malpractice. See I.C. § 6-1012. The act provides in
detail what foundation must be laid before the testimony of a testifying expert is admissible:




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               The applicable standard of practice and such a defendant’s failure to meet
       said standard must be established in such cases by such a plaintiff by testimony of
       one (1) or more knowledgeable, competent expert witnesses, and such expert
       testimony may only be admitted in evidence if the foundation therefor is first laid,
       establishing (a) that such an opinion is actually held by the expert witness, (b) that
       the said opinion can be testified to with reasonable medical certainty, and (c) that
       such expert witness possesses professional knowledge and expertise coupled
       with actual knowledge of the applicable said community standard to which his
       or her expert opinion testimony is addressed; provided, this section shall not be
       construed to prohibit or otherwise preclude a competent expert witness who
       resides elsewhere from adequately familiarizing himself with the standards and
       practices of (a particular) such area and thereafter giving opinion testimony in
       such a trial.
I.C. § 6-1013.
       Under this statute, a plaintiff’s testifying medical expert must be able to demonstrate
“actual knowledge” of the local standard of care. “Actual knowledge” does not mean that the
testifying expert has to practice medicine in the same community or even the same specialty as
the provider at issue. Section 6-1013 expressly allows an out-of-state/out-of-area expert to testify
so long as the expert “adequately” familiarizes himself with the standards and practices
applicable in a given case.
       The Quigleys contend that there is nothing in the Medical Malpractice Act which requires
the disclosure of the identity of the physician assistant as part of the foundation for Dr. Nakra’s
testimony. We agree and have addressed this argument. In Bybee v. Gorman, 157 Idaho 169, 335
P.3d 14 (2014), we reversed the district court’s decision to grant summary judgment in favor of a
medical provider based on the plaintiff’s failure to identify a non-testifying medical expert. The
district court concluded that the testifying medical expert’s “failure to name the cardiologist with
whom he conferred proves fatal to the admissibility of his affidavit.” Id. at 177, 335 P.3d at 22.
We reversed that decision, stating: “Today we hold that an affidavit that fails to identify an
anonymous consultant does not categorically fail to comply with the foundation requirements for
admissibility of an out-of-area expert’s testimony under Idaho Code section 6-1013.” Id. at 178,
335 P.3d at 23. Certainly, if Dr. Nakra were on the witness stand testifying as to how she became
familiar with the local standard of care applicable to Dr. Kemp, there is nothing in Section 6-
1013 which would require her to identify the physician assistant by name. While it may leave an
unanswered question in the minds of the jurors, we understand that such a decision is within the
discretion of the Quigleys’ attorney and does not render her testimony inadmissible.



                                                 5
       Having said that, the Quigleys also argue that if this Court were to rule that disclosure of
the physician’s identity is required, it would impermissibly heighten the foundation requirements
of Section 6-1013. In particular, they contend that the holding in Bybee cannot be reconciled
with footnote 8 of that decision which states:
              The corollary of this holding is that defendants should be permitted to
       conduct discovery as to the identity of consulting physicians. As in [Dunlap v.
       Garner, 127 Idaho 599, 903 P.2d 1296 (1994)], an expert’s claim to have
       consulted with a local practitioner in order to gain familiarity with the applicable
       standard of health care practice may present questions of credibility for
       consideration by the ultimate trier of fact.
Id. at 180, 335 P.3d at 14, 25 n.8. The Quigleys’ argument confuses the issue of admissibility
with discoverability and is not well taken.
       The identity of the physician assistant is discoverable under Rule 26(b)(1)(A) of the
Idaho Rules of Civil Procedure—not the Medical Malpractice Act. The Rule specifically
provides for the discovery of any nonprivileged matter that is relevant to a party’s claim or
defense, including the identity of persons who know of any discoverable matter:
               Unless otherwise limited by order of the court in accordance with these
       rules, the scope of discovery is as follows: (1) Parties may obtain discovery
       regarding any matter, not privileged, which is relevant to the subject matter
       involved in the pending action, whether it relates to the claim or defense of the
       party seeking discovery or to the claim or defense of any other party, including
       the existence, description, nature, custody, condition and location of any books,
       documents, or tangible things and the identity and location of persons having
       knowledge of any discoverable matter. It is not ground for objection that the
       information sought will be inadmissible at the trial if the information sought
       appears reasonably calculated to lead to the discovery of admissible evidence.
I.R.C.P. 26(b)(1) (emphasis added).
       Dr. Kemp argues persuasively that the identity of the physician assistant should be
discoverable because it enables him to explore and raise issues pertaining to Dr. Nakra’s actual
knowledge of the local standard of care. If Dr. Nakra were to testify at trial that she consulted
with a local physician assistant about the standard of care without revealing the person’s identity
(which we agree may be permissible), a natural question to ask on cross-examination would be
“who did you talk to.” The answer to this question could be important because it might reveal,
for example, that the conversation did not actually take place. See, e.g., Dunlap v. Garner, 127
Idaho 599, 604–05, 903 P.2d 1296, 1301–02 (1994) (involving the situation where a defendant
submitted affidavits from local physicians stating that they did not consult with the plaintiff’s


                                                 6
testifying expert). It might reveal that the physician assistant did not actually work in Boise at the
time in question or had a suspended license. Or, it might reveal that the physician assistant had a
run-in with Dr. Kemp in the past and might have an ax to grind now. Of course all of this is
purely hypothetical, but the point is that Dr. Kemp has a legitimate interest in knowing who the
physician assistant is so he can prepare his defense. There is nothing inconsistent or
irreconcilable with the Court holding that a testifying medical expert’s testimony can be admitted
without identifying the medical expert who provided the local standard of care, but that the
identity of that non-testifying expert is subject to a properly formulated discovery request.
       The Quigleys argue that this Court should use Rule 26(b)(4)(B) to protect the identity of
the physician assistant. We decline to do so. Rule 26(b)(4)(B) does not apply to non-testifying
expert witnesses who have been called to provide the foundation for a testifying witness’
testimony. Our discovery rules require a testifying witness to disclose the basis and reasons for
all opinions and all of the data and information considered by the witness in forming the
opinions. See I.R.C.P. 26(b)(4)(A)(i) (2015). This requirement fairly encompasses the names of
any non-testifying medical experts who provide information concerning the local standard of
care. If we were to interpret Rule 26(b)(4)(B) as the Quigleys advocate, we would effectively
undermine the full disclosure requirements in Rules 26(b)(1) and 26(b)(4)(A)(i). As such, we
find that the district court’s decision to preclude discovery under Rule 26(b)(4)(B) was not
consistent with applicable legal standards, and constitutes reversible error.
       We do not make this decision lightly. We understand that finding a medical expert who
has actual knowledge of the local standard of care and who is willing to get involved in a
medical malpractice action against a colleague is difficult at best. In some cases, it may be
impossible depending on the location and specialization of the medical provider at issue. Some
may argue that our holding today will further impede plaintiffs’ ability to get help from the local
medical community. We understand that the Medical Malpractice Act poses real, substantial
hurdles for plaintiffs bringing medical malpractice cases. We have an obligation, however, to see
that the laws passed by the legislature are followed. We also believe that secreting the identity of
a medical expert who provides the foundation for a testifying expert’s testimony is incompatible
with our system of justice.
                                          V. CONCLUSION




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       We vacate the district court’s order and remand for further proceedings consistent with
this opinion. Costs to Appellant.


       Chief Justice BURDICK, and Justices EISMANN, JONES and HORTON CONCUR.




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