Hayes v. District Court In and For City and County of Denver, 92SA267

• Decision Date: 21 June 1993
• Docket Number: No. 92SA267,92SA267
• Citation: 854 P.2d 1240
• Parties: Nicole A. HAYES, Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER, and the Honorable H. Jeffrey Bayless, Respondents.
• Court: Colorado Supreme Court

Page 1240

854 P.2d 1240

Nicole A. HAYES, Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER and the Honorable H. Jeffrey Bayless, Respondents.

No. 92SA267.

Supreme Court of Colorado En Banc.

June 21, 1993.

Don & Hiller, P.C., Shelley B. Don, David L. Hiller, Watson W. Galleher, Denver, for petitioner.

Montgomery, Little, Young, Campbell & McGrew, P.C., Richard L. Murray, Jr., Craig A. Adams, Englewood, for respondents.

Justice KIRSHBAUM delivered the Opinion of the Court.

In this original proceeding ¹ the petitioner, Nicole A. Hayes, seeks an order directing the respondent, the District Court in and for the City and County of Denver, to enter an order allowing the petitioner to be accompanied by her attorney or a paralegal to a court-ordered medical examination and to tape record the examination. Having issued a rule to show cause why the requested relief should not be granted, we now discharge the rule.

I

This case arises out of an automobile accident involving the petitioner and the defendants, ABC Print & Frame, Ltd., and its employee, Russell T. Donelson (hereinafter collectively referred to as ABC). The petitioner filed a civil action against ABC for personal injuries she allegedly sustained in June 1990, as a result of an automobile accident. The petitioner alleges, inter alia, that as a result of ABC's negligence she suffered serious injuries, including headaches, neck and low back pain, and a closed head injury that affects both her short term and long term memory.

On May 22, 1992, ABC filed a motion pursuant to C.R.C.P. 35(a) requesting the trial court to order the petitioner to submit to a physical examination by a designated orthopedic surgeon, Dr. Barry Lindenbaum. ² The petitioner agreed to undergo an independent medical examination but objected to the designation of Lindenbaum as the examiner on the grounds that he was biased against plaintiffs in personal injury litigation and that her counsel and Lindenbaum had previously been involved in litigation over fees regarding treatment rendered by Lindenbaum to the petitioner's counsel. The petitioner asserted that under these circumstances Lindenbaum would inject bias and prejudice into his examination and that such issue could not be addressed adequately at trial by cross-examination. The petitioner requested the trial court to enter an order requiring the examination to be conducted by another orthopedic surgeon mutually satisfactory to counsel for all parties.

On June 4, 1992, the trial court issued an order granting ABC's motion and requiring the petitioner to submit to a medical examination by Lindenbaum on June 5, 1992. The trial court noted the petitioner's objections but concluded that Lindenbaum would be able to separate his prior litigation experience with the petitioner's counsel from the petitioner and render a professional, objective evaluation of the petitioner's medical condition.

Upon learning of the trial court's order, the petitioner's counsel directed his paralegal to accompany the petitioner to the medical examination and to tape-record the examination. When the petitioner's attorney informed ABC's attorney of this decision, the latter attorney communicated this information by telephone to Lindenbaum's office and was informed by Lindenbaum's office manager that Lindenbaum does not conduct independent medical examinations under such circumstances. The office manager explained that Lindenbaum felt such procedure would hinder his ability to establish rapport with the examinee, would intimidate him personally, and would inhibit the examinee from communicating candidly during the examination.

On June 5, 1992, the trial court conducted a hearing to review the status of his discovery order. ³ During the hearing the petitioner advanced the argument that she should not be examined by Lindenbaum in the absence of a third party and a tape recorder because an independent medical examination conducted pursuant to C.R.C.P. 35(a) is in reality a litigation matter and because at trial a jury would more likely believe the testimony of a defense- oriented board-certified physician rather than the testimony of a young woman with a high school education. The petitioner again emphasized her concern about Lindenbaum's alleged potential for bias, and cited Timpte v. District Court, 161 Colo. 309, 421 P.2d 728 (1966), for the rule that a trial court may allow a party's attorney to attend a client's medical examination.

At the conclusion of the hearing, the trial court ordered the petitioner to submit to the medical examination by Lindenbaum and denied what it deemed to be the petitioner's request for protective orders. The trial court found that, contrary to the petitioner's assertions, Lindenbaum was not biased against her or her attorney and that he could conduct an impartial medical examination. Noting that the petitioner had been examined by a physician selected by her, which examination had not been tape recorded or witnessed by a representative of ABC, the trial court concluded that in fairness to both parties and in the absence of a showing of bias or prejudice on Lindenbaum's part, the petitioner was not entitled to the presence of her attorney or a paralegal or a tape recorder at the scheduled medical examination. The trial court stayed its order for seven days to permit the plaintiff to request relief from this court pursuant to C.A.R. 21.

The petitioner subsequently filed a motion for reconsideration of the trial court's order, together with a supporting affidavit which raised new grounds for the granting of protective orders. In her affidavit the petitioner averred that because the injuries suffered in the underlying accident affected her memory she would be unable to recollect any questions asked by the doctor and her answers thereto. She also averred that she was afraid to submit to an examination by an unfamiliar doctor selected by ABC knowing that he might testify against her at trial. The petitioner argued that a tape recording of the examination would enable her to effectively respond at trial to any possible mischaracterizations of her answers by Lindenbaum and that the presence of a third party would mitigate an otherwise intimidating atmosphere. When the trial court denied her motion for reconsideration, the petitioner brought this original proceeding.

II

An original proceeding pursuant to C.A.R. 21 is not a substitute for an appeal and is limited to an inquiry into whether the trial court exceeded its jurisdiction or abused its discretion. Halliburton v. County Court, 672 P.2d 1006, 1009 (Colo.1983). Matters pertaining to pretrial discovery are committed to trial court discretion, and review of discovery orders is normally limited to appeal. Harris v. District Court, 843 P.2d 1316, 1318 (Colo.1993) (citing Kerwin v. District Court, 649 P.2d 1086, 1088 (Colo.1982)). However, we find the exercise of original jurisdiction warranted in the circumstances here presented.

The trial court determined that the petitioner does not have a right to designate an attorney or some other third party to accompany her during a medical examination ordered pursuant to C.R.C.P. 35(a) or to tape-record such examination. The trial court also determined that in the circumstances of this case the petitioner's request for protective orders imposing such conditions on her examination by Lindenbaum was not warranted. We conclude that the trial court did not abuse its discretion in reaching those determinations.

In Timpte v. District Court, 161 Colo. 309, 421 P.2d 728 (1966), we held that C.R.C.P. 35(a) grants a defendant the right to designate a physician in the absence of a showing of bias or prejudice on the part of that physician and in the absence of an agreement by the parties as to the identity of the physician. We also made the following observations:

[The right is] subject to protective orders by the trial court such as, among others; those limiting the number of doctors who may examine; those providing who may be present at the examinations, including plaintiffs' attorneys if the court deems it wise; and those setting the time, types, place, scope and conduct of the examination. Moreover, the court may, upon a finding, sustained by a showing, of bias and prejudice, reject a particular physician and order the defendant to submit the names of other physicians.

It is suggested that certain doctors testify only for the defense in matters of personal injury, and that that in itself suggests bias and prejudice and demands disqualification of such a doctor to make examinations and testify. We do not agree. Such matters are relevant only as to weight and credibility, and cross-examination upon this subject affords full protection to the plaintiff's rights.

Id., 161 Colo. at 311-12, 421 P.2d at 729. Although these comments are merely dicta, they support the view that in this jurisdiction most issues concerning the conditions under which medical examinations of parties to personal injury actions are to be conducted shall be determined by the trial court in the exercise of its discretion.

C.R.C.P. 35(a) grants a trial court authority to issue an order requiring a party to submit to a physical or mental examination upon a showing of good cause. C.R.C.P. 35(a) also provides that such order shall specify the conditions of the examination. In specifying the conditions of a physical examination the trial court may authorize an attorney or some other third party to observe the examination and may permit the examinee to tape record the examination.

This court has not previously considered whether an examinee has a right to have a third party present at or to tape-record a medical examination ordered pursuant to C.R.C.P. 35(a). Other courts have addressed this issue under rules with identical or substantially similar language, with diverse results. See Thomas M. Fleming, Annotation, Right of Party to Have Attorney or...