Review the fact pattern below and compose a memorandum of not less than 2 pages and not more than 3 pages outlining a plan of discovery focusing on the means and methods of:
- Discovering and obtaining evidence to support plaintiff’s claim
- Discovering witnesses and obtaining testimony to support plaintiff’s claim
Your plan should include at least two additional interview questions or facts you would seek in other investigations. Your plan should include at least four of the five methods of discovery outlined in the discovery and investigation document supplied in this assignment.
Discovery choices include:
1.Interrogatories. They are questions that can be sent to the opposing parties.
If your side is suing only one party, only that party receives the interrogatories. Doe plans to sue Doctor Jones, the hospital, and the auto manufacturer as well. Interrogatories can be sent to each party opponent.
2.Depositions. They are an opportunity to seek testimony, under oath, from parties and from witnesses, in advance of trial. They are expensive due to the costs of court reporters and transcripts, but are very realistic and helpful in trial preparation. They are usually done last, but there is no rule requiring this.
3.Requests for Admission. These are similar to interrogatories, but are more restricted. They are often used to ask the opponent to admit certain facts that should not be controversial, but which would otherwise cost money and time to prove. The identity of people, verification of official documents, whether a medical bill is a true and accurate copy of an actual bill, and other obvious things that should not require a live witness should be admitted. If they are denied without cause, the costs of proving them can be shifted to the “stubborn side.”
4.Adverse medical exam. You can require an opponent to submit to a medical exam by your expert. Smith claims to be injured in the accident.
5.Request or demand for production of records, reports and statements. You can require a professional like a doctor or a business such as a hospital to provide reports or statements about their qualifications or their business operations, if it is relevant to the case. For instance, we do not know whether the hospital was negligent in allowing Dr. Jones to have hospital privileges or should have excluded Dr. Jones from performing surgery at the hospital.
About a month after completing the medical records summary for John Q Doe, your supervising attorney calls you into his office. He tells you that the defendant’s insurance company is being resistant to plaintiff’s settlement demands. He tells you that a complaint has been filed and he wants to start the discovery process. He asks you to prepare a memo outlining a plan of discovery for the case. He further explains that John is still in a coma so he will not be able to provide any information and his wife was not in the car at the time of the accident.
Before digging into the project, he asks you to refresh you knowledge of the Minnesota Rules of Civil Procedure regarding Discovery and particularly rules 26-36 to make sure that the rules actually allow you to proceed in the manner in which you will recommend.
The attorney does inform you that police were called to the scene and a report is in the file. Statements were taken from three people who purportedly saw the accident: Alvin Smith, Simon Mathews, and Theodore Simmons. Your supervising attorney also reminds you to carefully review the medical records to see if you can spot issues that need to be explored through discovery, such issues in the medical history, statements that help or hurt a case of negligence and recovery for damages arising out of the plaintiff’s current medical condition.
Your supervising attorney tells you he wants the memo to be divided into sections where each section identifies the method of discovery you intend to use, what you intend to obtain from the method and the citation to the relevant Minnesota Discovery Rule permitting you to obtain the information from the discovery method recommended.
Finally, your supervising attorney suggests you refresh your recollection on the required elements needed for John to prevail and tells you to check out the case of Lubbers v. Anderson issued by the Minnesota Supreme Court in 1995. He tells you it will help you fashion your plan for discovery.
You pull the case and find this relevant language:
The essential elements of a negligence claim are: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury was sustained; and (4) breach of the duty was the proximate cause of the injury.
We have said that in order for a party’s negligence to be the proximate cause of an injury “the act [must be] one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, though he could not have anticipated the particular injury which did happen.” Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992) (quoting Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 915 (Minn. 1983)). There must also be a showing that the defendant’s “conduct was a substantial factor in bringing about the injury.” Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980).
Lubbers v. Anderson, 539 N.W.2d 398, 401-402 (1995).