Metropolitan Property & Cas v. Overstreet, 2002-SC-0032-MR.

• Decision Date: 24 April 2003
• Docket Number: No. 2002-SC-0032-MR.,2002-SC-0032-MR.
• Citation: 103 S.W.3d 31
• Parties: METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. Robert B. OVERSTREET, Judge, Scott Circuit Court, Appellee, and Gary Afterkirk, Sylvia Banks; and Chris Heard, d/b/a Lexington Motors (Real Parties in Interest), Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 31

103 S.W.3d 31

METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. Robert B. OVERSTREET, Judge, Scott Circuit Court, Appellee, and Gary Afterkirk, Sylvia Banks; and Chris Heard, d/b/a Lexington Motors (Real Parties in Interest), Appellees.

No. 2002-SC-0032-MR.

Supreme Court of Kentucky.

April 24, 2003.

Catherine M. Stevens, John W. Walters, Lexington, for Appellant.

Robert Overstreet, Versailles, for Appellee Robert B. Overstreet, Judge, Scott Circuit Court.

Richard M. Rawdon, Jr., Georgetown, for Real Party in Interest Appellee Gary Afterkirk.

Jerry Anderson, Lexington, for Real Party in Interest Appellee Sylvia Banks.

R. Craig Reinhardt, Fowler, Measle & Bell, Lexington, for Real Party in Interest Appellee Chris Heard, d/b/a Lexington Motors.

Pamela Yvette Hourigan, Lexington, for Amicus Curiae Kentucky Academy of Trial Attorneys.

COOPER, Justice.

The underlying civil action was brought by Appellee Gary Afterkirk against Appellant Metropolitan Property & Casualty Insurance Company ("MetLife"¹), Afterkirk's uninsured motorists insurer, for personal injuries sustained in an automobile accident caused by the alleged negligence of an uninsured motorist. Pursuant to CR 35.01, MetLife moved for an order requiring Afterkirk to submit to a physical examination by Dr. Daniel D. Primm, Jr., an orthopedic surgeon. Alleging that Dr. Primm is biased against personal injury plaintiffs, Afterkirk objected and requested that a different doctor be appointed to conduct the examination. Alternatively, he moved for an order (1) permitting him to videotape the examination and/or permitting a physician or nurse of his choice to attend the examination, and (2) requiring Dr. Primm to provide information as to the number of CR 35.01 examinations performed by him during the past year, the number of patients seen for treatment purposes during the same period, and information concerning the income derived by Dr. Primm from his CR 35.01 examinations, reports, depositions and trial testimony. Appellee Judge Overstreet overruled Afterkirk's objection to Dr. Primm as the examiner pursuant to Sexton v. Bates, Ky.App., 41 S.W.3d 452 (2001) (which arose out of another CR 35.01 examination by Dr. Primm) but entered the following order:

1. The Plaintiff may videotape the medical examination by Dr. Primm of the Plaintiff. The videotape may be used by either party for impeachment purposes only.

2. The Defendant shall provide to Plaintiff's attorney at least ten (10) days prior to trial, the following information:

a. The number of people the doctor saw for one time medical examinations or evaluations upon behalf of employers, insurance companies, defendants in lawsuits or attorneys representing any of the above in the past twelve (12) months;

b. The number of patients seen by the doctor for treatment purposes in the past twelve (12) months;

c. The doctor's charge for each examination;

d. The doctor's charges for each deposition given as a result of having examined the person.

(Emphasis added.)

We assume that paragraphs 2c and 2d of the order pertain to CR 35.01 examinations and not examinations for purposes of treatment. MetLife filed a petition in the Court of Appeals for a writ to prohibit the enforcement of this order. CR 76.36(1); CR 81. The Court of Appeals denied the petition on the merits and MetLife now appeals to this Court as a matter of right. Ky. Const. § 115; CR 76.36(7)(a).

Since the Court of Appeals exercised its discretion to address the petition on its merits, Southeastern United Medigroup v. Hughes, Ky., 952 S.W.2d 195, 199 (1997), and Afterkirk does not even assert that MetLife has an adequate remedy by appeal, see Wal-Mart Stores. Inc. v. Dickinson, Ky., 29 S.W.3d 796, 800 (2000) ("`once the information is furnished it cannot be recalled'") (quoting Bender v. Eaton, Ky., 343 S.W.2d 799, 802 (1961)), we, too, will proceed directly to the merits of the appeal. For the reasons set forth infra, we affirm the Court of Appeals with respect to that portion of the trial court's order that permits the CR 35.01 examination to be videotaped and reverse with respect to that portion of the order that requires MetLife to furnish documents and information solely within the possession, custody and control of Dr. Prim.

II. CR 35.01 EXAMINATION.

Civil Rule 35.01 provides as follows: When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control 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, dentist or appropriate health care expert, or to produce for examination the person in his custody or legal control. 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.

The rule was born out of controversy. Prior to the adoption of the Federal Rules of Civil Procedure ("FRCP"), the common law viewed court-ordered medical examinations as repugnant to a person's privacy and bodily integrity. Indeed, in Union Pacific Ry. Co v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), the Court held that "[t]he inviolability of the person is as much invaded by a compulsory stripping and exposure [by the examining doctor], as by a blow." Id. at 251-52, 11 S.Ct. at 1001.

The drafters of CR 35.01's federal counterpart, FRCP 35(a), attempted to console the holders of this viewpoint by making the rule different from nearly every other federal rule. Whereas the basic rule of discovery is that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant," see FRCP 26(b)(1) and CR 26.02(1), FRCP 35 is more restrictive. Before discovery is permitted under Rule 35, the movant must prove that the condition of the examinee is "in controversy" and demonstrate "good cause" for the examination. See Schlagenhauf v. Holder, 379 U.S. 104, 117-18, 85 S.Ct. 234, 242, 13 L.Ed.2d 152 (1964) (noting this distinction between FRCP 35(a) and other federal rules); Guilford Nat'l Bank of Greensboro v. S. Ry. Co., 297 F.2d 921, 924 (4th Cir.1962) ("there must be greater showing of need under Rules 34 and 35 than under the other discovery rules.").

However, this restriction did not mollify all of the rule's critics. In the seminal case of Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941),² FRCP 35 was attacked as invalid under the Rules Enabling Act, 28 U.S.C. § 723 (1934) (now 28 U.S.C. § 2072), in part because it allegedly violated "the important right to freedom from invasion of the person." Id. at 14, 61 S.Ct. at 426. While the Court upheld the rule, Justice Frankurter registered a vehement dissent joined by Justices Black, Douglas, and Murphy: "I deem a requirement as to the invasion of the person to stand on a very different footing from questions pertaining to the discovery of documents, pretrial procedure and other devices for the expeditious, economic and fair conduct of litigation." Id. at 18, 61 S.Ct. at 428.

Despite this storied past, Kentucky law since the enactment of the Kentucky Rules of Civil Procedure (CR), 1952 Ky. Acts, ch. 18, eff. July 1, 1953, has heretofore been silent on the question of what "conditions" may be imposed upon a CR 35.01 examination for the protection of the examinee once it has been determined that an examination is warranted. In Turner v. Commonwealth, Ky., 767 S.W.2d 557 (1988), and Bart v. Commonwealth, Ky., 951 S.W.2d 576 (1997), we clarified that CR 35.01 applies only to a "party" or one under the control or custody of a party. 767 S.W.2d at 559, 951 S.W.2d at 578; but cf. Mack v. Commonwealth, Ky., 860 S.W.2d 275, 277 (1993) (noting that due process may nevertheless require an examination of a nonparty prosecuting witness). In Perry v. Commonwealth ex. rel Kessinger, Ky., 652 S.W.2d 655 (1983), we held that the rule applies to a defendant in a paternity proceeding. Id. at 660. And, in Taylor v. Morris, Ky., 62 S.W.3d 377 (2001), we held that the plaintiffs claim that she had injured her neck and back, accompanied by the expected testimony of the plaintiffs doctor that she had a permanent impairment, was sufficient for the trial judge to find "good cause" to compel her to submit to a CR 35.01 examination. Id at 380.

A plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.

Id. (quoting Schlagenhauf v. Holder, supra, at 119, 85 S.Ct. at 243) (internal citation omitted). However, these decisions only addressed when the rule authorizes a trial court to compel an examination, not what conditions the trial court may place on the examination itself.³

Because FRCP 35(a) mirrors CR 35.01, "federal court decisions interpreting [FRCP 35(a)] may be accepted as persuasive authority when examining CR 35.01." Taylor, supra, at 379. However, federal decisions are of only limited assistance with respect to the propriety of ordering the examination videotaped. To date, no published federal court of appeals opinion has reviewed a federal district court's decision to order, or refuse to order, the videotaping of a Rule 35(a) examination. Indeed, only one published federal court of appeals opinion has reviewed any district court decision with respect to Rule 35(a) "conditions" — and that was a review of a decision denying the imposition of conditions. See Sanden v. Mayo Clinic, 495 F.2d 221, 225 (8th Cir.1974) ("[a]lthough the examined party will usually be permitted to have his or her own physician present," the trial court did not abuse its discretion by denying the plaintiff, who was a...