Browne v. Superior Court

CourtCalifornia Court of Appeals
Citation98 Cal.App.3d 610,159 Cal.Rptr. 669
Decision Date15 November 1979
PartiesJeff D. BROWNE, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF SANTA CLARA, Respondent; Wilmer S. REEVES, Helen Christensen Reeves, Real Parties in Interest. Civ. 46792.

Boccardo, Lull, Niland & Bell, Richard D. Capparella, San Jose, for petitioner.

Ropers, Majeski, Kohn, Bentley & Wagner, Mark G. Bonino, Redwood City, for real parties in interest.

RACANELLI, Associate Justice.

We issued our alternative writ of mandate to examine the single question whether a personal injury litigant may be compelled to submit to a physical examination by a vocational rehabilitation expert who is not a licensed physician. We conclude that neither statutory nor other authority sanctions the examination ordered by the trial court; accordingly, the petition must be granted.


The facts are undisputed: Petitioner filed a civil damage action against real parties for injuries allegedly sustained as a result of an automobile-motorcycle accident. Petitioner's future wage loss is one of the disputed issues in the pending litigation. Although petitioner voluntarily submitted to a medical examination conducted by a licensed physician selected by real parties, he refused the latter's request "to be examined and tested by Dr. Hal Ulery, a rehabilitation expert" on the grounds that a physical examination by a non-physician was unauthorized by law. 1 Thereafter real parties filed a written motion for an order pursuant to Code of Civil Procedure section 2032, subdivision (a) 2 compelling petitioner "to submit to an interview and physical examination and/or testing by Dr. Hal Ulery" resulting in an order requiring petitioner to attend the requested "physical examination." Aside from the designated time and place of the examination, the order made no mention of the manner, condition and scope of such examination. The order was stayed pursuant to stipulation pending review by extraordinary writ.

I. Propriety of Mandamus Review

Initially we address real parties' contention that the use of the prerogative writ to review discovery orders is generally disfavored and the petition should thus be denied. (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 170, fn. 11, 84 Cal.Rptr. 718, 465 P.2d 854.) It is unnecessary to engage in extended discussion concerning the propriety of extraordinary review of an important issue of statutory construction raised by a discovery order permitting the physical examination of a party by a non-physician examiner, particularly where the aggrieved party is confronted with the Hobsonian choice of either submitting to the intrusive procedure or risking the sanctions of noncompliance. (See Roberts v. Superior Court (1973) 9 Cal.3d 330, 336, 107 Cal.Rptr. 309, 508 P.2d 309.) Moreover, since the petition presents a question of first impression likely to recur in future litigation, it provides an opportunity to establish clear guidelines for the benefit of trial courts and the legal profession and thus falls within the exception to the general rule precluding extraordinary review in discovery matters. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439; Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 336, 155 Cal.Rptr. 525.) Finally, having issued our alternative writ, we have concluded that the remedy afforded by direct appeal is inadequate and that the use of the prerogative writ is appropriate herein. (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 155, 118 Cal.Rptr. 14, 529 P.2d 46; Brown v. Superior Court (1971) 5 Cal.3d 509, 515, 96 Cal.Rptr. 584, 487 P.2d 1224; People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 492, 96 Cal.Rptr. 553, 487 P.2d 1193.)

II. Examination by a Non-physician

While recognizing general principles favoring liberal construction of discovery statutes in favor of disclosure unless clearly prohibited by statute or policy considerations (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378, 15 Cal.Rptr. 90, 364 P.2d 266; accord Bailey v. Superior Court (1977) 19 Cal.3d 970, 978, fn. 11, 140 Cal.Rptr. 669, 568 P.2d 394; Shepherd v. Superior Court (1976)17 Cal.3d 107, 118, 130 Cal.Rptr. 257, 550 P.2d 161), petitioner contends that where as here the Legislature has expressly provided that a party's physical examination may be taken by a Physician, such limitation implicitly excludes such examination by a non-physician. Real parties counter that while the subject statute does not expressly authorize a non-physician examination, neither does it prohibit it; thus, since discovery is intended to be a "two-way street" permitting mutual discovery as a matter of fundamental fairness (see Edwards v. Superior Court (1976) 16 Cal.3d 905, 912, 130 Cal.Rptr. 14, 549 P.2d 846; see also Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 41 Cal.Rptr. 721), the examination by a competent vocational rehabilitation counselor should be allowed consistent with the liberal policy favoring disclosure or, alternatively, in the exercise of judicial discretion to prevent manifest oppression. (See Code Civ.Proc., § 2019, subd. (b)(1).) Moreover, real parties insist that the request for the examination should be treated no differently from other forms of physical examination traditionally performed by non-physicians as approved by the courts. (Cf. Bittle v. Superior Court (1976) 55 Cal.App.3d 489, 127 Cal.Rptr. 574 (X-ray examination).) We believe that fundamental principles of statutory construction as judicially explicated in parallel factual situations impel a conclusion that the challenged examination procedure is unauthorized by law and that the order constitutes an abuse of discretion.

While the precise factual setting is a novel one, nonetheless we are aided by a number of decisions involving related principles of construction pertaining to discovery statutes. In Bailey v. Superior Court (1977) 19 Cal.3d 970, 140 Cal.Rptr. 669, 568 P.2d 394, the court directed that the trial court quash its order authorizing the videotaping of the plaintiff's deposition on the basis that such method of recording and reporting deposition testimony had not been "Authorized by the Legislature." (Id. at p. 977, 140 Cal.Rptr. 669, 568 P.2d 394, emphasis in original; accord Edmiston v. Superior Court (1978) 22 Cal.3d 699, 150 Cal.Rptr. 276, 586 P.2d 590 (held: notwithstanding the absence of statutory prohibition, videotaping of plaintiff's medical examination improper since not "affirmatively authorized" by the Legislature); cf. People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 143 Cal.Rptr. 609, 574 P.2d 425 (deposition in criminal proceedings restricted to statutory conditions).) Thus, while wide latitude attends the process of pretrial discovery in general (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355, 378, 15 Cal.Rptr. 90, 364 P.2d 266), such discretion may not be exercised in a manner conflicting with an express statutory procedure authorizing the method of discovery. (See Bailey v. Superior Court, supra, 19 Cal.3d 970, 978, fn. 11, 140 Cal.Rptr. 669, 568 P.2d 394.) To read into the governing statute authority to conduct a physical examination by a non-physician would subvert the express legislative policy that such physical examinations be conducted only by a physician, by definition a person holding a valid certificate to practice medicine issued by a competent medical authority. (See Bus. & Prof. Code, § 4033; Reuter v. Superior...

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