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Whorton v. Dixon9/29/2005
introduce her own expert to attest to the standard of care. Moreover, if Dr. Dixon had offered a favorable expert opinion at trial, the "privilege" would have been lost, and thus, Whorton would have been able to seek unfavorable expert testimony from Dr. Dixon.
Whorton also contends that equal protection was violated and her right to a fair trial was severely constrained by her inability to engage in effective discovery. In fact, the statute expressly states that the "privilege" does not extend to discovery. Ark. Code Ann. ยง 16- 114-207(3). While it may have been error for the circuit court to deny Whorton's motion to compel Dr. Dixon "to resubmit to a `follow-up' deposition . . . and answer the questions posed to him," that issue is not presented to us on appeal.
Finally, we decline to address the merits of Whorton's argument that the legislature's enactment of section 16-114-207(3) violates the separation-of-powers doctrine. This court will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case. Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003)(citing National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996) and Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995)). In her motion challenging the constitutionality of the statute, Whorton made no reference to the separation-of-powers doctrine or Article 4 of the Arkansas Constitution. Furthermore, during the hearing on the motion, her counsel only mentioned the phrase "separation of powers" in the context of another case. The circuit court did not have the benefit of development of the law on the separation-of-powers issue. We will not address an issue that is fully developed for the first time on appeal. Raymond v. State, supra. This argument is therefore procedurally barred.
Affirmed.
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