Avila v. Superior Court In and For County of Maricopa

• Decision Date: 29 August 1991
• Docket Number: CA-SA,No. 1,1
• Citation: 816 P.2d 946,169 Ariz. 49
• Parties: Victor G. AVILA, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Gary E. Donahoe, a judge thereof, Respondent Judge. Dorna Esther BUNG, individually; and Dorna Esther Bung dba Dee's Flowers and Gifts, an Arizona corporation, Real Parties in Interest. 91-082.
• Court: Arizona Court of Appeals

Page 946

816 P.2d 946

169 Ariz. 49

Victor G. AVILA, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Gary E. Donahoe, a judge thereof, Respondent Judge Dorna Esther BUNG, individually; and Dorna Esther Bung dba Dee's Flowers and Gifts, an Arizona corporation, Real Parties in Interest.

No. 1 CA-SA 91-082.

Court of Appeals of Arizona Division 1, Department A.

Aug. 29, 1991.

Douglass & Ferrarino by Bedford Douglass, Jr., Mesa, for petitioner.

Burrell, Seletos & Tinsley by Ernest D. Tinsley, Phoenix, for real parties in interest.

OPINION

JACOBSON, Judge.

Petitioner is the plaintiff in a personal injury suit that includes a claim for loss of earning capacity. The trial court has granted defendant's motion to compel plaintiff to be examined by a vocational rehabilitation specialist, pursuant to Rule 35, Arizona Rules of Civil Procedure. The issue presented is whether a vocational rehabilitation examination, performed by a specialist who is concededly not a physician, is authorized within the scope of Rule 35.

Facts and Procedural History

On November 20, 1989, plaintiff filed a negligence complaint against respondent Bung individually and doing business as Dee's Flowers and Gifts (defendant), alleging personal injury and loss of earning capacity as a result of an automobile accident. The prayer requested, among other things, special damages for "loss of earnings, past and future," and for "loss of earning power."

During the course of discovery it became apparent that the lost wages claim would be the predominant damages sought. Defendant notes that, although plaintiff's medical bills total about $10,000, plaintiff alleges his lost earnings will exceed $200,000.

On January 19, 1991, defendant filed a Motion for Independent Examination, requesting "an order requiring Plaintiff to submit to an examination by a qualified vocational rehabilitation specialist and his consultants in order that Defendant might obtain an independent opinion with respect to the issue of Plaintiff's ability to work." Defendant alleged that pretrial discovery established that plaintiff intended to present evidence from a vocational rehabilitation specialist that plaintiff is no longer able to work in his former profession, as a carpenter. Defendant requested that plaintiff be ordered to undergo similar testing, to be administered by defendant's vocational rehabilitation specialist, including "certain psychological and mental testing ... and ... physical testing, including range of motion," administered by defendant's specialist. The motion did not establish that defendant's specialist was a physician, or give any other information regarding his qualifications. Defendant urged the court to issue the order on the basis of its authority to order a party "to submit to a physical or mental examination by a physician" under Rule 35.

Plaintiff opposed the motion, arguing first that Rule 35 authorizes examinations only by physicians; second, that defendant had not shown good cause for the exam because defendant had other discovery devices available to obtain the information necessary for his specialist to render an opinion on plaintiff's ability to work; and third, by pointing out that the discovery period had ended under the local rules. Defendant argued that the court's broad authority to order discovery should be invoked in order for the defendant to be able "to put on a defense concerning Plaintiff's claim of future lost wages."

After oral argument on the motion, the trial court granted defendant's motion, ordered plaintiff to appear before defendant's vocational rehabilitation specialist, ordered that defendant make the results available to plaintiff after the examination, and to make the specialist available for deposition if requested by plaintiff. Plaintiff filed this special action from that order.

Special Action Jurisdiction

Orders compelling discovery are interlocutory in nature and thus are not appealable. However, if plaintiff is wrongly compelled to submit to an examination the trial court was not authorized to order, the damage will have been done and cannot be remedied by an appeal. Other courts have concluded that the ability of a trial court to coerce a party to submit to a vocational examination and interview, without the presence of counsel, is a serious question of law that is likely to escape resolution if review is delayed. E.g., Acosta v. Tenneco Oil Co., 913 F.2d 205, 208 (5th Cir.1990). Moreover, courts have historically utilized the common law extraordinary writs to review orders compelling medical examinations. See, e.g., Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (granting mandamus); Martin v. Superior Court, 104 Ariz. 268, 451 P.2d 597 (1969) (granting writ of certiorari); Pedro v. Glenn, 8 Ariz.App. 332, 446 P.2d 31 (1968) (application for writ of certiorari or writ of prohibition is proper procedure to seek review of order compelling examination). Therefore, special action is an especially appropriate vehicle for such review. See Rule 1(a), Rules of Procedure for Special Actions. Additionally, this is a pure issue of law, and a case of first impression in Arizona. E.g., Mullet v. Miller, 168 Ariz. 594, 816 P.2d 251 (App.1991). In the exercise of our discretion, we accept special action jurisdiction in this case.

Merits

Rule 35(a), Arizona Rules of Civil Procedure, provides:

When the mental or physical condition ... of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician.... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

(Emphasis added.) This rule is substantially the same as the federal rule, except that the federal rule has been amended to specifically authorize examination by a psychologist as well as a physician. Rule 35, Federal Rules of Civil Procedure, as amended by Act of Nov. 18, 1988, Pub.L. 100-690, Title VII, § 7047(b), 102 Stat. 4401. Prior to this amendment, most federal courts held that Federal Rule 35 authorized an examination only by a licensed physician. See 8 C. Wright & A. Miller, Federal Practice & Procedure § 2235 at 293 (Supp.1991). Thus, the rule did not authorize a trial court to compel an examination by a licensed psychologist. See, e.g., Landry v. Green Bay & Western R.R. Co., 121 F.R.D. 400 (E.D.Wis.1988).

Since the amendment, the commentators have agreed that the scope of the rule is limited to examinations conducted by a physician or a psychologist, and does not include examinations by a vocational rehabilitation expert who is not licensed in either of those disciplines. 4A Moore's Federal Practice p 35.03 at 35-17 (1991) ("A Rule 35 examination must be conducted by a physician or a psychologist.... The rule does not, however, permit a court to order an examination to be conducted by someone who is not a physician or a licensed psychologist."); Wright & Miller, supra ("The rule does not authorize examination by a vocational rehabilitation expert.")

The weight of federal case law agrees with the commentators by excluding a vocational rehabilitationist from the scope of Rule 35 as a matter of law when there is no showing that the examiner is either a physician or a psychologist. See Acosta, supra, and district court cases cited therein. ¹

The policy reasons given for this narrow reading of Rule 35 are persuasive. First, the language of the rule itself specifically limits its application to physicians. See, e.g., Landry, 121 F.R.D. at 401 ("Rule 35's language is self-limiting and cannot be expanded to include examination by non-physicians.") The court's license to broadly interpret discovery rules "does not give courts the authority to substantially expand a rule's scope, insert new language, or create new provisions out of whole cloth.... The rule clearly does not permit a physician or 'any other qualified health professional with appropriate training and experience' to perform the examination." Comastro v. Tourtelot, 118 F.R.D. 442, 443 (N.D.Ill.1987) (interpreting Federal Rule 35 prior to its 1988 amendment to exclude psychologists). As one court reasoned:

Given the myriad of possible backgrounds--clinical, behavioral, or educational psychology; counseling or vocational experts; and degrees ranging from a bachelor's to a Ph.D.--expanding Rule 35 would put courts in the difficult business of determining whether a particular individual has received sufficient training to conduct a highly intrusive examination into a party's private life. The current rule obviates the need for additional inquiry and effectively relies upon the clearly defined, rigorous training program provided to [physicians] in medical school and residency programs.

Id. at 443 n. 1.

A second reason for excluding a vocational...