Wardell v. McMillan

In Wardell v. McMillan, 844 P.2d 1052 (Wyo. 1992), the defendants appealed a district court protective order prohibiting them from deposing one of the plaintiff's treating physicians regarding his expert opinion on the issues of causation and standard of care. Id. at 1065-67. The protective order limited the scope of the treating physician's deposition to the factual circumstances related to the plaintiff's condition and treatment. The defendants argued that the doctor's expert opinion should have been discoverable because the plaintiff waived any privilege by filing suit. After holding that the treating physician's opinion was not privileged, the Court nevertheless upheld the protective order based upon the circumstances of the case including the fact that the plaintiff had never designated the doctor as an expert witness for trial which made it unnecessary for the defendants to depose him regarding his expert opinion for purposes of cross-examination. Id. at 1067. The Court also noted that the doctor was a treating physician who was not "retained or specially employed" by the plaintiff in anticipation of trial, so his expert testimony was not discoverable under Rule 26(b)(4)(B). Id.