Jacob v. Chaplin

• Decision Date: 06 September 1994
• Docket Number: No. 46S04-9409-CV-00851,46S04-9409-CV-00851
• Citation: 639 N.E.2d 1010
• Parties: Charles R. JACOB and Antonio Sofo, d/b/a Antonio Sofo & Son Importing Co., Appellants-Defendants, v. Jerry L. CHAPLIN and Constance Chaplin, Appellees-Plaintiffs.
• Court: Indiana Supreme Court

Page 1010

639 N.E.2d 1010

63 USLW 2187

Charles R. JACOB and Antonio Sofo, d/b/a Antonio Sofo & Son Importing Co., Appellants-Defendants, v. Jerry L. CHAPLIN and Constance Chaplin, Appellees-Plaintiffs.

No. 46S04-9409-CV-00851.

Supreme Court of Indiana.

Sept. 6, 1994.

Timothy J. Walsh, Edward N. Kalamaros & Associates, P.C., South Bend, for appellants.

Robert F. Gonderman, Sr., Gonderman Law Offices, P.C., South Bend, for appellees.

ON PETITION TO TRANSFER

DeBRULER, Justice.

Appellees-plaintiffs Jerry and Constance Chaplin brought an action against appellants-defendants Charles R. Jacob and Antonio Sofo, who were doing business as Antonio Sofo & Sons Importing company. Jerry Chaplin sustained personal injuries in an automobile accident with Jacob. Jacob and Sofo moved for a medical examination of Chaplin, pursuant to Ind. Trial Rule 35. Chaplin agreed to the examination, but requested permission to tape record his conversations with the examining doctor during the examination. Jacob and Sofo refused. Chaplin sought trial court permission to record the examination. The Laporte Circuit Court, the Honorable Robert Gettinger, J., granted permission for the recording. Jacob and Sofo objected, and petitioned the trial court to certify the issue for interlocutory appeal. The trial court certified this issue for appellate review. On appeal, the Court of Appeals (Fourth District) vacated the trial court order and remanded the case to the trial court. Jacob v. Chaplin (1993), Ind.App., 625 N.E.2d 486. The Chaplins petition for transfer to this Court. We grant transfer.

On October 11, 1989, Jerry Chaplin was driving his automobile in the westbound lane of Vistula Road, Mishawaka, Indiana. Charles Jacob was operating a tractor-trailer southbound on Bittersweet Road. The two vehicles collided at the intersection of Vistula and Bittersweet. Antonio Sofo is the registered owner of the tractor-trailer. At the time of the accident, Jacob was an agent, servant, and employee of Sofo, and was acting within the scope of his employment.

In his complaint, Chaplin claimed the following temporary and permanent injuries due to the accident: physical and mental pain and suffering; intellectual and psychological impairment and disability; and physical impairment and disability. Specifically, Chaplin claimed that he suffered a closed head injury, a fractured right clavicle, a fractured right scapula, multiple rib fractures, and various mental injuries to his cognitive abilities, due to the head injury. In their answer to the complaint, Jacob and Sofo denied Chaplin's injuries. On March 5, 1992, Jacob and Sofo filed a T.R. 35 motion for Chaplin to submit to a medical examination, and the trial court granted the motion. The trial court order allowed Jacob and Sofo to define the scope of the examination. The extent of the examination was defined in their T.R. 35 motion, and reads as follows:

The scope of the examination will be such scope as in the opinion of the physician may be necessary or desirable to effect a complete examination of Jerry L. Chaplin with reference to the injuries and symptoms of which he complains secondary to the aforesaid motor vehicle accident ... absent any invasive procedures.... By this filing and service hereof, defendant gives notice to the plaintiff ... that at the time of said examination Dr. Heller will take a history from Jerry L. Chaplin, conduct a physical (orthopedic) examination of the parts of his body about which he has complained of injuries and, depending upon the doctor's advice for it, x-ray him by completely non-invasive procedures.

In a letter dated March 6, 1992, Chaplin alerted Jacob and Sofo that he would be available for an examination on April 13, 1992 at 8:00 A.M. In that same letter, Chaplin requested that Jacob and Sofo allow Chaplin to tape record all aspects of the examination. Jacob and Sofo refused. On March 10, 1992, Chaplin filed a Motion for a Protective Order, requesting that the trial court grant leave to tape record the conversations with the examining doctor. On April 6, 1992, the trial court held a hearing on the motion. Following the hearing, the trial court granted the Chaplins' motion. Jacob and Sofo moved for the trial court to reconsider and vacate the order granting the Chaplins' motion to record, or in the alternative, to certify an interlocutory appeal. On October 5, 1992, the trial court certified the issue for appeal.

The Court of Appeals found that there is no presumptive right for a party to tape record a court-ordered medical examination. The Court of Appeals did recognize that such a request is "best left to the sound discretion of the trial court," but found that the Chaplins had not presented any evidence of Jerry Chaplin's communication problem or cognitive impairment, nor any evidence of bias or prejudice on the part of the examining physician that would make a tape recording of the examination necessary. The Court of Appeals held that the trial court had abused its discretion, because the order granting tape recording was not supported by any evidence showing the need for the added condition, the tape recording of the medical examination. The Court of Appeals vacated the trial court order and remanded the case to the trial court. Chaplins petitioned this Court for transfer of this cause, alleging that the Court of Appeals committed error when it decided a new question of law--whether a party who is being compelled to submit to a T.R. 35 examination has the presumptive right to tape record all questioning that occurs. We grant transfer to address this case of first impression in Indiana. Because transfer is granted, the Court of Appeals opinion is vacated and held for naught. Ind.App.Rule 11(B)(3).

The specific question that appellants Jacob and Sofo present for review is whether a party who is subject to a court-ordered medical examination may tape record all conversations that the party has with the examining physician at the time of the examination. Appellants here challenge the action of the trial court imposing a certain condition on discovery, the tape recording of conversations occurring during a medical examination. Appellants contend that a party has no such right, because recording the examination would interfere with the physician's examination. The Chaplins, appellees here, argue the necessity of preserving an accurate, verbatim recording of the conversations, because anything the examinee says is admissible substantively at trial.

Discovery is the process by which the parties to an action ascertain the existence of material facts previously unknown. Black's Law Dictionary. Generally, parties may obtain discovery regarding any matter relevant to the subject matter involved in the pending action, or which appears reasonably calculated to lead to the discovery of admissible evidence. T.R. 26(B). One discovery method is a physical examination. T.R. 26(A)(4). Jacob and Sofo requested a medical examination pursuant to this discovery procedure. T.R. 35 outlines the proper...