Jacob v. Chaplin

• Decision Date: 09 December 1993
• Docket Number: No. 46A04-9210-CV-377,46A04-9210-CV-377
• Citation: 625 N.E.2d 486
• Parties: Charles R. JACOB and Antonio Sofo d/b/a Antonio Sofo & Sons Importing Co., and individually, Appellants-Defendants, v. Jerry CHAPLIN and Constance Chaplin, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 486

625 N.E.2d 486

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

No. 46A04-9210-CV-377.

Court of Appeals of Indiana Fourth District.

Dec. 9, 1993.

Timothy J. Walsh, Edward N. Kalamaros & Associates, South Bend, for appellants-defendants.

Robert F. Gonderman, Sr., Gonderman Law Offices, South Bend, for appellees-plaintiffs.

MILLER, Judge.

This certified interlocutory appeal is a case of first impression in Indiana. The broad issue presented is whether a party has a presumptive right to establish conditions for a court ordered routine, Ind.Trial Rule 35 physical examination. ¹ The specific issue is whether the trial court abused its discretion (and in the process, decided a new question of law) by issuing a protective order which in effect said that a plaintiff in a personal injury action, ordered to undergo a routine T.R. 35 examination, is entitled as a matter of right to tape record all conversations with the physician selected by the defendants. ²

We find that there is no such presumptive right. The question of what, if any, conditions may be set by a protective order for such examinations are best left to the sound discretion of the trial court. However, the party seeking such an order bears the burden of establishing the need for such relief.

In the instant case, because the trial court's order is unsupported by any evidence, we find that the trial court abused its discretion in ordering the presence of a tape recorder at the examination and, therefore, we vacate its protective order.

FACTS AND PROCEDURAL HISTORY

The underlying cause of action is a personal injury claim brought by the Chaplins against Jacob and Sofo (Jacob) for money damages. On October 11, 1989, Chaplin was injured in an accident in Mishawaka between his pickup truck and a semi-trailer operated by Jacob and owned by Sofo. The Chaplins filed their complaint on December 4, 1989. Mr. Chaplin complained of multiple fractures, multiple soft tissue injuries and a closed head injury with cognitive losses caused by the accident. On March 5, 1992, Jacob filed a motion for a physical examination under T.R. 35 asking that Chaplin be examined by a South Bend orthopedic surgeon, Doctor Earl J. Heller. The Order was granted the next day.

On March 10, 1992, Chaplin filed a motion for a protective order asking the court to allow him to tape record any conversations he had with Dr. Heller during the course of the examination. A hearing was held on April 6, 1992, after which the court granted the motion and said it "specifically grants the plaintiff leave to tape record any conversations he has with Dr. Heller during his T.R. 35 examination." R. 55.

On May 4th, Jacob filed a motion to reconsider and vacate the April 6th Order or, alternatively, to allow a certified interlocutory appeal. Attached were letters from a number of doctors stating they would not conduct an examination of a patient under such a condition (Heller and his partner had submitted similar affidavits with Jacob's motion in opposition to the order). Jacob also notified the court he would need two further medical examinations, one by a neurosurgeon and a second by a neuropsychologist. About four weeks later, Jacob supplied the court with affidavits from these two specialists. The neurosurgeon said he would only allow tape recording of the "history" part of the examination. The neuropsychologist stated he would allow a video tape of the entire examination providing a one-way mirror was used to prevent any distraction by the taping equipment.

The battle continued with Chaplin's counsel maintaining he could find an orthopedic surgeon willing to do the examination (Dr. Sobal) under the tape recording condition while Jacob's counsel continued to bombard the court with affidavits from numerous health care providers stating the opposite. Chaplin even suggested Jacob use the expert (Dr. Sobal) he had found. Needless to say, the parties never came to an agreement and on October 5, 1992, the trial court certified its order for an interlocutory appeal.

Chaplin then filed alternative motions with the trial court asking it to either reconsider its certification or vacate the protective order. Jacob opposed these motions on the grounds that the motion to vacate did not remove all obstacles to a routine examination. Chaplin's reply then asked that his attorney be present at the examinations. The trial court denied both motions on November 25, 1992, stating:

I am interested in the answer to this question because it is rather novel. There is no Indiana case on it and the only case I was ever able to find where this was permitted was where a psychological problem was involved and there was some problem where the patient would tell the doctor one thing and then say something else at the trial and based on that one case, I granted this order because there is a psychological problem ³ here and I'm quite interested to know whether the Supreme Court or the Court of Appeals is gonna follow this foreign jurisdiction or not. If not, and I'd like to have it settled. I think it's an important question.

R. 339-340.

We granted the petition for interlocutory appeal over Chaplin's objections on February 9, 1993. The motion war continued and Chaplin asked us to issue a writ of certiorari ordering the clerk of the trial court to supplement the record with the transcript of a June 8, 1992, hearing. We granted this request and on July 26, 1993, the case was fully briefed and transmitted to this court. On August 20, 1993, we sua sponte ordered Oral Argument for September 21, 1993, which was postponed at counsel's request to October 5, 1993.

We note that in spite of Chaplin's request that the transcript of the June 8, 1992, hearing be part of the record, he now insists that our review is limited only to the material reviewed by the trial court prior to issuing its order on April 6, 1992, and that none of the material submitted by either party after the April 6th hearing is relevant to the issue before us. The trial court's order was issued at the end of the April 6th hearing. Therefore, the issue is whether the trial court abused its discretion by issuing its protective order based upon the material before it at that hearing. In addition, the issue and arguments raised in this case are not new and have been discussed in other jurisdictions, both state and federal, numerous times.

POLICY CONSIDERATIONS

As stated by Professor Harvey, the general scope of discovery is established in Rule 26(B)(1), ⁴ and, thus, this rule is extraordinarily important. "It contains limitations which apply to all forms of discovery, and it speaks to the spirit, as Indiana decisions have also spoken, with which the use of discovery should be approached." William F. Harvey 2 Indiana Practice 492-493 (1992 supp.). In 1972, our supreme court said: "The true spirit of the new discovery rules may be described as twofold: (1) to provide for a minimum of court involvement in the discovery process and, (2) to allow for a more liberal discovery procedure." Chustak v. Northern Indiana Public Serv. Co. (1972), 259 Ind. 390, 288 N.E.2d 149, 153.

This court has stated: "Discovery is designed to be self-executing with little, if any, supervision necessary by the trial court. Its implementation is automatic in most instances with deadlines designed to accelerate the process and expedite the trial of causes." Chrysler Corp. v. Reeves (1980), Ind.App., 404 N.E.2d 1147, 1151.

Indiana law vests the trial court with considerable discretion in the area of discovery. Thus, in the rare cases when we review a claim of trial court error involving discovery questions, our standard of review is whether the trial court abused its discretion. Harvey, supra, at 517-518.

In a 1961 Note published by the Harvard Law Review and printed in its entirety in Harvey, supra, at 656, the writer noted that discovery serves these basic purposes:

1. it may remove before trial issues which are not likely to be seriously contested;

2. it brings about the disclosure and presentation at trial of all the relevant evidence;

3. it exposes fraudulent or groundless claims; and

4. it encourages pretrial settlements whenever possible in order to minimize the time, effort, and funds expended on the resolution of controversies.

Id. at 659-660. In sum, the policy behind the discovery rules is to narrow issues for trial, conserve valuable judicial time, limit litigation expenses and encourage settlements.

DECISION

I. SURVEY OF THE COMMON LAW

A. Introduction

Indiana's version of T.R. 35, as amended, is taken almost verbatim from the Federal Rule. "As a result, Indiana's Rule 35 should be regarded as the same as Federal Rule 35, insofar as borrowing Federal cases for either instruction or interpretation." William F. Harvey, 3 Indiana Practice at 32 (1992 supp.).

We find ourselves in the same position as the Colorado Supreme Court where the court stated "[t]his 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 [T.R. 35]." Hayes v. District Court for the City and County of Denver (1993), Colo., 854 P.2d 1240, 1244. The Colorado court then noted that other courts, both federal and state, have addressed this issue under rules containing identical or substantially identical language with diverse results. ⁵ Id. at 3 citing 84 A.L.R.4th 558 (1991).

Some state courts have concluded that a party ordered to undergo a T.R. 35 (or its counterpart) examination has a right to require the attendance of an attorney during the examination. Most recent of these is Langfeldt-Haaland v. Saupe Enterprises, Inc. (1989), supra, n. 2 at 1147 (the court also found the examinee had the right to tape record the examination). Other states which have followed...