Ragan v. Petersen

• Decision Date: 26 June 1997
• Docket Number: No. 95-1441,95-1441
• Citation: 569 N.W.2d 390
• Parties: Catherine A. RAGAN, Plaintiff-Appellee, v. Brent A. PETERSEN and August B. Petersen, Defendants-Appellants.
• Court: Iowa Court of Appeals

Page 390

569 N.W.2d 390

Catherine A. RAGAN, Plaintiff-Appellee, v. Brent A. PETERSEN and August B. Petersen, Defendants-Appellants.

No. 95-1441.

Court of Appeals of Iowa.

June 26, 1997.

Thomas J. Shields and Theodore F. Olt, III of Lane & Waterman, Davenport, for defendants-appellants.

Michael K. Bush of Carlin, Hellstrom & Bittner, Davenport, for plaintiff-appellee.

Heard by HABHAB, C.J., and SACKETT, and CADY, JJ., but decided en banc.

CADY, Judge.

This single issue we face in this appeal is whether the district court abused its discretion by refusing to grant a motion for continuance of trial. We conclude the district court abused its discretion. We reverse and remand for a new trial.

Catherine Ragan instituted this action against Brent Petersen and August Petersen on July 7, 1993, for personal injuries arising from an accident on July 11, 1991. Ragan was struck by a grain auger which broke loose from a grain truck operated by Brent Petersen. Ragan was primarily represented by attorney James T. Carlin from Davenport. The Petersens were represented by attorney Steven E. Mayer from Clinton. Trial was scheduled for January 9, 1995.

Ragan moved for a continuance of trial on December 20, 1994. The motion claimed Vernon Varner, M.D., a neuropsychiatrist, had recently examined Ragan and believed she suffered a previously undiagnosed closed-head injury as a result of the accident. The motion explained Dr. Varner had scheduled additional tests, including a complete neuropsychological evaluation for January 6, 1995. The motion further explained the nature and extent of Ragan's previously undiagnosed and untreated head injury would not be known until Dr. Varner completed his neuropsychological evaluation. The motion claimed Ragan would be prejudiced if required to go to trial before Dr. Varner's evaluation was completed.

The trial court granted the motion and rescheduled the trial for June 5, 1995. Mayer did not resist the motion.

On January 18, 1995, Mayer wrote Carlin indicating he may want to obtain an independent medical evaluation of Ragan, and requested Carlin to voluntarily produce Dr. Varner's records. Carlin promptly responded, indicating he would voluntarily produce the requested information. Carlin explained he had requested the records from Dr. Varner and would provide them to Mayer after he received them from Dr. Varner.

On February 27, 1995, Mayer wrote Carlin indicating he had not received the requested records. He asked Carlin to produce all Dr. Varner's records even if Dr. Varner had not yet prepared a written report. He also requested to arrange for the deposition of Dr. Varner. Mayer followed this letter with another letter on March 10, 1995, again indicating the records had not been received.

Carlin responded to the March 10, 1995 letter on March 13, 1995. He informed Mayer no records had been received from Dr. Varner despite his requests. Carlin also indicated Ragan was scheduled to see Dr. Varner on March 27, 1995. Carlin expressed his belief Dr. Varner would be in a position to provide the records and a report following the March 27 examination of Ragan. Mayer responded he would not wait any longer, and would be seeking the records by court action. This, however, was never done.

Carlin forwarded the requested records and report by Dr. Varner to Mayer on April 28, 1995. The report was dated April 24, 1995. Dr. Varner's deposition was taken on May 9, 1995.

On May 19, 1995, Mayer filed a motion to continue the trial scheduled for June 5, 1995. He believed an independent medical examination was needed and there was insufficient time before trial for it to be completed. He alleged the Petersens would be seriously prejudiced if required to proceed to trial without independent discovery.

The district court denied the motion. It faulted Mayer for putting off the decision to seek an independent medical examination until the results and opinions of Dr. Varner's evaluation had been discovered. The court determined a further continuance was not warranted because Mayer should have employed his own medical expert independent of the opinions of Dr. Varner after Carlin told him in December 1994 that Dr. Varner believed Ragan had suffered a closed-head injury. The court also observed Mayer could have used a subpoena to obtain any records he needed. The district court did not specifically consider the impact of any prejudice to the Petersens of proceeding to trial without an independent evaluation, but indicated the case was beyond the Supreme Court standards for the processing of a civil case. It further observed Mayer had failed to identify a medical expert to conduct an independent examination.

The case proceeded to trial on June 5, 1995. The Petersens renewed their motion for a continuance, which the trial court summarily denied. The Petersens acknowledged liability. They introduced no medical testimony. The jury returned a verdict for Ragan of $1,108,907. The district court denied the Petersens' motion for a new trial based in part on the failure to continue the trial.

The Petersens appeal. They claim the trial court abused its discretion by failing to continue the trial. Ragan asserts the trial court acted within its discretion in denying the continuance, and error was not preserved because the Petersens failed to articulate facts to establish prejudice.

I. Motion for Continuance.

The decision to grant or deny a continuance of trial rests within the discretion of the trial court. Hawkeye Bank &amp Trust v. Baugh, 463 N.W.2d 22, 26 (Iowa 1990). We will reverse only when that discretion is abused. Id.

The trial court is given guidelines to help exercise its discretion when presented with a motion for continuance, which we in turn use to measure the reasonableness of the trial court's decision. Id. These guidelines provide "a continuance may be allowed for any cause not growing out of the fault or negligence of the applicant, which satisfies the court that substantial justice will be more nearly obtained." Iowa R. Civ. P. 183(a). Thus, when a motion for continuance is promptly filed, "alleging a cause not stemming from the movant's own fault or negligence, the court must determine whether substantial justice will be more nearly obtained by granting the request." State v. Birkestrand, 239 N.W.2d 353, 360 (Iowa 1976).

We first examine the conduct of defense counsel in failing to seek an independent medical examination prior to receiving Dr. Varner's evaluation, and in failing to utilize the power of the court to obtain the requested medical records of Dr. Varner. The trial court found this conduct was the cause for the requested continuance, which was the fault of defense counsel.

We do not believe a defense attorney's decision to delay a request for an independent medical examination until the plaintiff's medical information on the particular injury has been disclosed constitutes negligence or fault for the purposes of determining whether to grant a continuance. An independent medical examination is not available as a matter of right, but is permitted only within the discretion of the trial court. McQuillen v. City of Sioux City, 306 N.W.2d 789, 790 (Iowa 1981). It is granted only when the mental or physical condition of the party is in controversy, and good cause is shown for the examination. Id. at 790-91; Iowa R. Civ. P. 132. Moreover, these two requirements are not simply formalities and are not satisfied by mere conclusory allegations or by mere relevance to the case. Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 243, 13 L.Ed.2d 152, 163-64 (1964).

In some instances, a pleading may form a sufficient basis to satisfy the requirements of Rule 132. See Curtis v. Express, Inc., 868 F.Supp. 467, 468 (N.D.N.Y.1994). In this case, however, the only basis for seeking an independent medical evaluation in the four months following the continuance was the conclusory allegation in Ragan's motion for continuance that Dr. Varner's initial evaluation "indicated the presence" of a closed-head injury. Carlin acknowledged Dr. Varner's preliminary evaluation was incomplete and the "nature and extent" of Ragan's injuries were unknown and would not be known until the evaluation was complete. Moreover, no medical evidence was produced during this period of time to substantiate this claim and no pleadings or interrogatories were amended to place the condition squarely in issue until May 1, 1995.

Under these circumstances, we have doubts whether Mayer would have been entitled to obtain an independent medical evaluation before Dr. Varner's evaluation was complete. The only ground for an independent medical examination was a preliminary, incomplete claim. Even if good cause was present to support a request for an independent medical examination prior to the completion of a plaintiff's medical evaluation, we cannot conclude it would be imprudent to delay requesting an independent examination until the plaintiff identified the nature and extent of the injuries claimed. There are a multitude of reasons to postpone the decision to request an independent medical examination until the plaintiff's own evaluation is complete, most fundamentally that an independent examination may not be necessary.

We also decline to find fault because Mayer failed to resort to the court process to obtain the medical information prior to the time this information was voluntarily disclosed. ¹ Our rules of trial procedure require counsel to make a good faith effort to resolve discovery disputes prior to seeking assistance from the court. See Iowa R. Civ. P. 122(e). The discovery process is intended to be self-executing. Here, the parties had no real legal dispute over discovery which required court action. Instead, the basic problem was the information subject to discovery was not available for production.

We also consider the concepts of civility and professionalism, which have become increasingly important...