{ "id": 1914684, "name": "David A. LUPO, M.D. v. Hon. John LINEBERGER, Circuit Judge", "name_abbreviation": "Lupo v. Lineberger", "decision_date": "1993-06-01", "docket_number": "92-1168", "first_page": "315", "last_page": "322", "citations": [ { "type": "official", "cite": "313 Ark. 315" }, { "type": "parallel", "cite": "855 S.W.2d 293" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "204 Ark. 943", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444152 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/ark/204/0943-01" ] }, { "cite": "256 Ark. 1054", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726444 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/1054-01" ] }, { "cite": "761 S.W.2d 602", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6034995 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/154-A-01" ] }, { "cite": "246 Ark. 210", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604079 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0210-01" ] }, { "cite": "833 S.W.2d 766", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1898850, 1898935 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0208-01", "/ark/310/0212-01" ] }, { "cite": "310 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898850 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0208-01" ] }, { "cite": "304 Ark. 321", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881056 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0321-01" ] }, { "cite": "303 Ark. 647", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882720 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0647-01" ] }, { "cite": "302 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884337 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0060-01" ] }, { "cite": "292 Ark. 13", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871369 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0013-01" ] }, { "cite": "373 P.2d 439", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1962, "opinion_index": 0 }, { "cite": "23 Cal. Rptr. 375", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1962, "opinion_index": 0 }, { "cite": "272 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174848 ], "weight": 4, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0400-01" ] }, { "cite": "261 Ark. 279", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678882 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0279-01" ] }, { "cite": "311 Ark. 80", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897023 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/311/0080-01" ] }, { "cite": "304 Ark. 321", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881056 ], "weight": 2, "year": 1991, "opinion_index": 1, "case_paths": [ "/ark/304/0321-01" ] }, { "cite": "303 Ark. 647", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882720 ], "weight": 2, "year": 1990, "opinion_index": 1, "case_paths": [ "/ark/303/0647-01" ] }, { "cite": "272 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174848 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/272/0400-01" ] } ], "analysis": { "cardinality": 736, "char_count": 12907, "ocr_confidence": 0.902, "pagerank": { "raw": 5.603771106992429e-07, "percentile": 0.9480073934812415 }, "sha256": "472d36e7a9c787c6e79bdc4b7b6d59712215036841f4a00684f7cd2a0c6dd927", "simhash": "1:4b6cd77f71264110", "word_count": 2164 }, "last_updated": "2023-07-14T19:14:05.799320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hays, J., dissents." ], "parties": [ "David A. LUPO, M.D. v. Hon. John LINEBERGER, Circuit Judge" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis is a petition for a writ of prohibition or writ of certiorari to prevent the Jefferson County Circuit Court, specifically the Honorable John Lineberger, sitting on special assignment, from ordering Dr. David A. Lupo to testify as a witness in a deposition in the matter of William Rodgers, individually and as administrator of the Estate of Patricia Rodgers v. Dr. Robert Teryl Brooks, No. 91-439-2-3. In response to the petition, we issued a temporary stay of all proceedings, including discovery, pending the submission of briefs on the main issue and the question of the propriety of a writ of certiorari. See Lupo v. Lineberger, 311 Ark. 80, 841 S.W.2d 158 (1992).\nThe parties have responded by submitting briefs on the appropriateness of both writs of prohibition and certiorari as well as on the main issue; however, we hold that the petitioner is not entitled to relief under either writ arid deny his application in all particulars.\nWRIT OF PROHIBITION\nIn Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977), we reiterated our general position that a writ of prohibition is a discretionary writ and is only proper when the trial court has no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts. In Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), where the court\u2019s order in question was essentially a pretrial discovery order, discretionary, and within our Rules of Civil Procedure, Ark. R. Civ. P. 26(b)(1), we cited Webb with approval. Yet we altered Webb\u2019s language somewhat and granted a writ of prohibition stating that such a procedure was proper in extraordinary cases. In support of our decision, we noted that the California Supreme Court had used writs of prohibition to review interim orders in discovery matters which ordinarily would not be reviewed until after the case was tried and appealed. Ocean Side Union School District v. Superior Court, 23 Cal. Rptr. 375, 373 P.2d 439 (1962).\nIn Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), we were confronted with a question of whether a writ of prohibition should issue. We correctly granted the writ as the trial court did not have jurisdiction over a workers\u2019 compensation matter, although this was not our holding. Instead, we utilized some rather loose language in declaring that the writ was warranted to prevent untold time and expense, as well as unnecessary grief to the parties. We should have simply said writs of prohibition lie when the court is without jurisdiction and has clearly exceeded its authority.\nLater, in Duncan v. Cole, 302 Ark. 60, 786 S.W.2d 587 (1990) , we concluded that a discovery order was not the proper subject for a writ of prohibition and commented further, \u201cWe regard the Curtis decision as unique in that the demonstration of irreparable harm was compelling.\u201d In a concurring opinion, Justices Glaze and Newbern agreed with the majority\u2019s results but made specific note \u201cthat the majority should have completed this job and overruled Curtis.\u201d In Ridenhower v. Erwin, 303 Ark. 647, 799 S.W.2d 535 (1990) we declared, \u201cit would be a mistake to read Curtis as a general precedent for the issuance of writs of prohibition in discovery disputes.\u201d\nWe also labored over the Curtis issue in Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991) and explained:\nPetitioner does argue that in the case of Curtis v. Partain, 272 Ark. 400, 614 S. W.2d 671 (1981), we granted a writ of prohibition when the trial court had personal and subject matter jurisdiction, and we did not hold there was an inadequacy in the remedy of appeal. It asks us to do the same again. Curtis was an anomaly involving an issue of first impression which we resolved \u201cfor the benefit of the trial courts.\u201d It is doubtful that we will ever again follow the procedure in Curtis. We limit that case to its facts.\nAs we are confronted with Curtis once again, we take this opportunity to overrule Curtis and retreat from the overreaching language in Fore to our earlier posture on writs of prohibition, as most recently stated in Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992):\nProhibition will not lie unless the trial court is clearly without jurisdiction or has acted without authority and the petitioner is unquestionably entitled to such a relief. The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy by appeal or otherwise. It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction.\nThe taking of Dr. Lupo\u2019s deposition pursuant to Ark. R. Civ. P. 26(a) falls within our discovery procedures. In this regard our rules provide:\n(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under subdivision (c) of this rule, the frequency of use of these methods is not limited.\nSince issues of discovery are squarely under the trial court\u2019s jurisdiction, it necessarily follows that a writ of prohibition is not the solution to this discovery problem. For this reason, Dr. Lupo\u2019s petition for writ of prohibition is denied.\nWRIT OF CERTIORARI\nNor is the issuance of a writ of certiorari appropriate under the factual circumstances of this case. Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy and is available to us in exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. State v. Nelson and Barry Petroleum Co., 246 Ark. 210, 438 S.W.2d 33 (1969). Sexton v. Supreme Court, 297 Ark. 154A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). However, certiorari may only be resorted to in cases where an excess of jurisdiction is apparent on the face of the record. Nelson and Barry Petroleum Co., supra. From our inspection of the trial court\u2019s proceedings, we do not see any irregularities for which there is no other adequate remedy which would require the issuance of a writ.\nLinder Ark. R. Civ. P. 26(a), a party has an absolute right to take a deposition. If the deponent is asked questions that are inappropriate or unreasonable, he has a right to refuse to answer the question and request a protective order from the trial court to prevent the deposer from asking further questions along that line. More particularly, Ark. R. Civ. P. 26(c) provides:\n(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or other commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.\nIf the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any person or persons provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.\nSpecifically, Ark. R. Civ. P. 26(c)(4) is available and has been available at all times as an adequate remedy to Dr. Lupo for matters that should not be inquired into. Granted, the trial court, through its written order and statements made in open court, gave the parties apparently inconsistent guidelines as to what it considered to be acceptable or unacceptable deposition questions; however, the giving of these guidelines or setting of these parameters does not preclude the taking of Lupo\u2019s deposition or take away from the trial court\u2019s jurisdiction to sit and pass judgment on each one of the issues raised during discovery. Dr. Lupo has the option to return to the trial court and ask for a protective order if he is asked a question during the deposition which he considers unacceptable. Ark. R. Civ. P. 26(c).\nA writ of certiorari is a remedy to quash irregular proceedings \u201cbut only for errors apparent on the face of the record; not to look beyond the record to ascertain the actual merits of a controversy or to control discretion or to review of finding upon facts.\u201d (Citations omitted.) Hardin, Comm\u2019r of Revenues v. Norsworthy, 204 Ark. 943, 165 S.W.2d 609 (1942). Under the circumstances and facts of this case, we find that there is no such patent error.\nSince the petitions for writs of prohibition or certiorari do not properly lie, we do not address the main issues in controversy.\nPetition denied.\nHays, J., dissents.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "Steele Hays, Justice,\ndissenting. I could agree with the majority if this were a discovery dispute between litigants. But petitioner is not a party and is without the recourse otherwise available, a circumstance the majority ignores. Consequently he is confronted with the distasteful prospect of facing contempt charges for refusing to answer questions involving his opinions as a physician. That, I believe, provides the extraordinary circumstances appropriate to prohibition or certiorari.\nRespondent insists he does not propose to obtain expert testimony from Dr. Lupo. \u201cThe crux of the case,\u201d he tells us, is that Dr. Lupo \u201cis not being forced to provide expert testimony against his will. . . . He is merely another person who is being deposed because he has knowledge concerning matters involved in the case. [Respondent] is merely seeking to discover what that knowledge is.\u201d Respondent\u2019s brief, page 14.\nThat assurance is reenforced elsewhere:\n[Respondent] will concede that it would be error for Judge Lineberger to compel Dr. Lupo to testify as an expert against his will at trial. However, Judge Lineberger\u2019s order does not do this. It does not require Dr. Lupo to divulge any specialized knowledge to assist the trier of fact. A.R.E. 702. All it requires is that Dr. Lupo submit to a discovery deposition as an ordinary witness and answer questions based on his first-hand knowledge, experience and past statements. [Emphasis in original.]\nId. at 21.\nYet it is all too apparent from oral argument and respondent\u2019s brief that the \u201cknowledge\u201d respondent hopes to discover is essentially Dr. Lupo\u2019s professional judgment and opinion as to the appropriate standard of care for urologists in the community, whether certain medical texts are \u201clearned treatises\u201d in their field, and opinions he may have formed concerning the deceased patient not protected by the scope of peer review. But these are patently areas of expert testimony and not obtainable by compulsion. Ark. R. Evid. 706.\nNor can I see anything to be gained by overruling Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981). That decision, issued unanimously, was expressly for the guidance of the trial bench when privileged information is sought by discovery. We have made it clear the case is not to be read broadly for the issu\u00e1nce of writs of prohibition in discovery disputes. Ridenhower v. Erwin, 303 Ark. 647, 799 S.W.2d 535 (1990). And we have said as to prohibition that Curtis v. Partain is \u201climited to its facts.\u201d Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991). Why not leave it at that. There are principles of law announced in that opinion \u201cof general interest to all trial courts\u201d that I believe are sound today. To overrule Partain needlessly undermines those pronouncements.", "type": "dissent", "author": "Steele Hays, Justice," } ], "attorneys": [ "Wright, Lindsey & Jennings, for appellant.", "Peter A. Miller, for appellee." ], "corrections": "", "head_matter": "David A. LUPO, M.D. v. Hon. John LINEBERGER, Circuit Judge\n92-1168\n855 S.W.2d 293\nSupreme Court of Arkansas\nOpinion delivered June 1, 1993\nWright, Lindsey & Jennings, for appellant.\nPeter A. Miller, for appellee." }, "file_name": "0315-01", "first_page_order": 349, "last_page_order": 356 }