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Adams v. Squibb1/29/2004
ired in anticipation of the litigation, is not an expert under Rule 56.01(b)(4). Hruban v. Hickman Mills Clinic, Inc. , 891 S.W.2d 188, 190 (Mo.App. 1995).
All of the cases discussed thus far, Brandt, Mulberry, Hruban , were decided prior to the effective date of the amendment to Rule 56.01 that added the provision regarding non-retained experts, section (b)(5), to the rule. In addition to considering the cases listed above, Appellant asks that we consider a case decided in 2000, after the provision was added, which compares Rule 56.01(b)(4) and Rule 56.01(b)(5). State ex rel. Tracy v. Dandurand , 30 S.W.3d 831 (Mo. banc 2000). Appellant is correct that this case discusses differences in the discovery process between the two provisions. Id. at 834-35. However, Appellant's conclusion that "Rule 56.01(b)(5) affects how discovery on non-retained experts witnesses is conducted but does not affect the trial court's discretion in ordering witness fees to be paid to a non-retained expert[,]" goes beyond the holding and issues in Tracy.
We must determine whether, given Rule 56.01 as it was written at the time of the facts of the case before us, it is an abuse of discretion for a trial court to not compel such payment. We find that it is not.
The important distinction is not whether a deposed witness is an expert or not, but rather, whether that witness, as an expert, is retained or non-retained. It is that distinction which distinguishes the provisions within Rule 56.01. The Missouri Supreme Court acknowledges that a treating physician, as someone who has direct knowledge of the facts of the case and, therefore, is not retained solely for the purposes of the litigation, may also be qualified to render expert opinions in the case. Tracy , 30 S.W.3d at 834 n.4. We conclude that a treating physician ordinarily has "direct knowledge, or involvement in, the events in controversy" and, under the facts of this case, is not a retained expert under Rule 56.01(b)(4), but is a non-retained expert under Rule 56.01(b)(5). See id.
The section addressing experts under Rule 56.01(b)(4) contains a provision that mandates that the trial court "require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed." Rule 56.01(b)(4)(b). When the rule was amended in 1995, section (b)(5) was added, which included language that addressed discovery issues similar to those addressed under (b)(4)(a). A paragraph concerning payment for the time of a non-retained expert was not added. We can only assume that such an omission was intentional and not ambiguous. See Home Business Ass'n of Greater St. Louis, Inc. v. City of Wildwood , 107 S.W.3d 235, 239 (Mo.banc 2003). As there is no provision requiring payment, there was no abuse of discretion in denying Appellant's motion. Point II is denied.
Conclusion
The judgment is affirmed.
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