Curry v. Klein
| Decision Date | 30 October 1992 |
| Docket Number | No. 66320,66320 |
| Citation | 251 Kan. 670,840 P.2d 443 |
| Parties | Scott B. CURRY, Appellee, v. William P. KLEIN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 60-235 vests a trial court with broad discretion in determining whether or not to order a party to submit to a physical or mental examination by a physician designated by an opposing party.
2. A trial court has discretion to limit cumulative evidence.
3. K.S.A. 60-445 grants discretion to a court to exclude evidence otherwise admissible if the court finds that its admission will unfairly and harmfully surprise a party who has not had a reasonable opportunity to anticipate that such evidence will be offered.
Paul Hasty, Jr. of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, argued the cause, and Leonard R. Frischer, of the same firm, was with him on the briefs for appellant.
Mark Beam-Ward of Hill, Beam-Ward & Alberg, Overland Park, argued the cause, and Lisa Ashner Adkins and Sarah A. Brown, of the same firm, were with him on the briefs for appellee.
This is a personal injury action arising out of an automobile accident occurring on April 4, 1987, in Prairie Village. Defendant William P. Klein admitted liability and a jury trial was held on the issue of damages. A verdict was reached fixing damages in the amount of $110,502, and judgment was entered in said amount in favor of plaintiff Scott B. Curry. Defendant appealed therefrom. The Court of Appeals, in an unpublished opinion filed March 13, 1992, reversed the judgment and remanded the case for a new trial. The matter is before us on petition for review. 827 P.2d 83.
There is no claim of trial error. Rather, all issues relate to the propriety of three rulings made which excluded defendant from utilizing Dr. Joseph Lichtor as an expert medical witness. Accordingly, only facts relative to those rulings are necessary for our decision herein.
Defendant filed a motion pursuant to K.S.A. 60-235 for an order directing the plaintiff to submit to an examination by Dr. Joseph Lichtor, an orthopedic physician. Plaintiff filed a motion objecting thereto, and, following a hearing thereon, District Judge G. Joseph Pierron, Jr., declined to enter the requested order for examination. Defendant then requested that said ruling be certified pursuant to K.S.A.1991 Supp. 60-2102(b) for interlocutory appeal, but said request was denied.
K.S.A. 60-235 provides, in pertinent part:
Judge Pierron's lengthy decision may be summarized as follows. K.S.A. 60-235 affords a trial judge wide discretion in determining whether or not to order a party to submit to examination by the specified physician. Dr. Lichtor had testified as an expert witness in certain specified cases involving other parties which had been tried before him. As a result of these prior experiences involving Dr. Lichtor, Judge Pierron had formed certain opinions as to Dr. Lichtor as an expert witness. These included: (1) Dr. Lichtor was very biased in his testimony; (2) Dr. Lichtor exhibited a lack of candor and an evasiveness when questioned on his professional qualifications and experiences as an expert witness; and (3) Dr. Lichtor ascribed base motives of personal gain to the injured person's complaints of pain. Based upon these considerations, the trial court refused to order the examination.
The defendant attacks this ruling on the following grounds:
1. It was based wholly on the trial judge's experience with Dr. Lichtor in other cases not involving the parties hereto.
2. No evidence was introduced at the hearing relative to Dr. Lichtor.
3. The trial court was not exercising discretion under the statute as no evidence was before it on which it could deny defendant's request for a K.S.A. 60-235 examination.
First, it should be noted that the propriety of an examination by an orthopedic physician under K.S.A. 60-235 was not an issue. Plaintiff is seeking in this action monetary damages for injuries within the orthopedic medical area of specialty. The conflict is squarely over defendant's designation of Dr. Lichtor as the examining physician. This is not the first time unfavorable views held by members of the Johnson County judiciary as to Dr. Lichtor as an expert medical witness have been before this court. See Jones v. Bordman, 243 Kan. 444, 759 P.2d 953 (1988) ().
Was it error for Judge Pierron to consider and base his ruling on his prior experience with Dr. Lichtor in other cases coming before him? Generally, the answer to such a question would be in the affirmative. If a statute requires a hearing, then the judicial decision should be based upon evidence introduced at the hearing. However, within the context of K.S.A. 60-235 and the unusual circumstances herein, we believe the answer should be answered in the negative. Inherent in the statute is judicial discretion in two areas: (1) whether to order the examination; and (2) if ordered, what physician shall conduct it.
In the typical automobile accident case, a request that plaintiff be examined by a designated orthopedic physician or surgeon would be granted rather routinely. But it must be considered that the statute is considerably broader. A motion by one parent in a child custody dispute to have the other parent or a child examined by a psychiatrist is also within the purview of the statute. Extremely sensitive issues may be involved relative to whether to order any such examination and, if so, by whom it should be done. Let us assume an extreme scenario. In a child custody matter, a motion is made by the father of a child to have the child examined by Dr. John Doe, a child psychologist. The wife's attorney knows nothing about Dr. John Doe, opposes any examination, and presents no evidence as to Dr. Doe. The trial judge knows, from prior judicial experiences with Dr. Doe that Dr. Doe will likely be biased in his testimony, will attempt to manipulate the child's true feelings, and may well inflict psychological trauma on the child in the process of his examination. Should the trial court restrict the operation of its judicial discretion to just what is presented in court on the day the motion is heard? We believe not. Further, it would be rather ridiculous if evidence of the judge's own prior cases and experiences is required to be introduced before the judge can consider same.
There is no showing herein that Dr. Lichtor was the only physician or one of a small number of physicians in the field of expertise being sought. This could be a factor in appropriate circumstances. K.S.A. 60-235 provides that upon a showing of good cause the court may order the examination. Clearly, the legislature has granted the court broad discretion in this area. There is nothing in the record to indicate that the court was not going to order an examination regardless of the physician designated. The denial of the examination was wholly predicated upon the designation of Dr. Lichtor as the examining physician.
Our standard of review in the instant matter is abuse of discretion. The cases indicate that discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. This is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983).
We conclude no abuse of judicial discretion has been shown in the district court's refusal to order the requested examination pursuant to K.S.A. 60-235.
On January 17, 1990, defendant designated Dr. Lichtor and Dr. Victoria Cook as his expert witnesses to be called at trial. The plaintiff moved to strike Dr. Lichtor. A hearing was held and the court struck Dr. Lichtor's name on the basis his testimony would be cumulative. Judge Pierron held that the two physicians designated by plaintiff were treating physicians and it...
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State v. Leitner
...is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. See Curry v. Klein, 251 Kan. 670, 675, 840 P.2d 443 (1992). On cross-examination, the prosecutor succeeded in getting Leitner to admit that she was involved in witchcraft and at......
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State ex rel. Lichtor v. Clark
...v. Klein, Case No. 88C5612, District Court of Johnson County, Kansas.Judge Pierron's findings were recently upheld in Curry v. Klein, 251 Kan. 670, 840 P.2d 443 (1992). The Kansas Supreme Court noted that Judge Pierron had based his refusal primarily on observations of Dr. Lichtor's testimo......
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