Wasmund v. Nunamaker, 40816

CourtSupreme Court of Minnesota (US)
Citation151 N.W.2d 577,277 Minn. 52
Docket NumberNo. 40816,40816
PartiesLeRoy WASMUND and Mrs. Geneva Wasmund, Respondents, v. Earl NUNAMAKER and Jeanne Nunamaker, Relators.
Decision Date06 June 1967

Syllabus by the Court

A party cannot thwart Rule 35.01, Rules of Civil Procedure, which provides that where the mental or physical condition of a party is in controversy the trial court may order the party to submit to examination by a physician, by an unreasonable objection to a physician chosen by his opponent to make such examination.

An objection based on a personal dislike of such physician by plaintiffs' counsel cannot be upheld as valid, and the trial court abused its discretion in refusing, on that ground, to name the physician selected by defendants.

Winter, Lundquist & Sherwood, Wheaton, for relators.

Mott, Grose, Von Holtum and Hefferan, Worthington, for respondents.


NELSON, Justice.

This is an application to have a writ of prohibition issued out of this court made absolute.

The issue set forth in the petition for the writ is a narrow one. Respondent plaintiffs, LeRoy Wasmund and Mrs. Geneva Wasmund, have brought an action against defendant relators, Earl Nunamaker and Jeanne Nunamaker, alleging that Mrs. Wasmund sustained permanent brain damage and damage to the nervous system in an automobile collision out of which the action arose. Pretrial procedures reveal that in connection therewith Mrs. Wasmund has been examined by doctors engaged in the specialty field of neurology and that at least one of the specialists will be present at the trial for the purpose of rendering medical testimony.

At the call of the district court calendar in Nobles County in February 1967, relators made a motion pursuant to Rule 35.01, Rules of Civil Procedure, seeking an order compelling an examination of Mrs. Wasmund by Dr. Andrew J. Leemhuis. This motion was opposed by counsel for plaintiffs. Relators based their motion upon the showing of the nature of the injury claims involved, the qualifications of the medical examiner requested, and their desire for his personal appearance at the trial. Plaintiffs made no objection to having an examination made of plaintiff Geneva Wasmund but did object to relators' choice of medical examiner, wholly upon the basis of a personal relationship claimed to exist between one of plaintiffs' counsel, Mr. Clint Grose, and Dr. Leemhuis which had developed as a result of a cross-examination of Dr. Leemhuis at another and previous trial where Dr. Leemhuis had testified at the request of a defendant and Mr. Grose had represented the plaintiff.

There is no claim on the part of plaintiffs that Dr. Leemhuis is not fully qualified to make the examination professionally nor any objection to the fact that an examination by Dr. Leemhuis would be made at his offices in Minneapolis. The objection is to the doctor's appearance to testify at the trial, not on account of any objections on the part of plaintiffs as litigants, but only on grounds of hostility personal to plaintiffs' counsel himself. The trial court, after hearing, denied defendants' motion to compel Mrs. Wasmund to submit to an examination by Dr. Leemhuis, holding that Rule 35.01, Rules of Civil Procedure, does not give defendants the right to select a doctor for the examination, especially when plaintiffs object to the selection. Defendants thereupon sought a writ of prohibition in this court to restrain the trial court from proceeding with trial of the action until reversal of its order denying their motion.

The issue thus is whether a personality conflict between plaintiffs' counsel and Dr. Leemhuis (claimed by Mr. Grose and denied by Dr. Leemhuis) is sufficient to thwart the effect of Rule 35.01. We think it is clearly shown that good cause exists for the physical examination by reason of the physical condition of Mrs. Wasmund. The application for the examination was made by relators before commencement of trial, and plaintiffs made no objection to the time, place, and scope of the examination. Relators also showed in their application that Dr. Leemhuis was willing to travel to the place of trial in order to testify.

It is the claim of relators that plaintiffs' refusal to agree to the examination by Dr. Leemhuis in the instant case is unreasonable and is based on a whim, personal to counsel himself, and therefore is not grounds to prevent an examination of Geneva Wasmund by the doctor of relators' choice. To hold otherwise would, relators argue, result in a virtual elimination from future appearances in court of many qualified medical experts of proven ability, and this possibly because they are of exceptional ability in their field. This brings us to the question of whether the use of a writ of probibition may in the discretion of this court be justified under the circumstances. We have concluded that it is a proper case for its use.

The essentials to the issuance of the writ are (1) that the court, officer, or person against whom the writ issues is about to exercise judicial or quasi-judicial power; (2) that the exercise of such power by such court, officer, or person is unauthorized by law; and (3) that it will result in injury for which there is no other adequate remedy at law.

The writ is an extraordinary writ issued for the purpose of preventing inferior courts or tribunals or other individuals vested by law with judicial or quasi-judicial authoity from going beyond their jurisdiction. The general nature and office of the writ is to furnish a preventive rather than a corrective remedy. The writ is not one of right but of discretion and issues only in extreme cases where the law affords no other adequate remedy by motion, trial, appeal, certiorari, or otherwise. In the absence of another legal remedy which is reasonably efficient and adequate, it may properly be issued in the discretion of the court to prevent an inferior tribunal from proceeding in a matter over which it is wholly without jurisdiction or to prevent it from exceeding its legitimate powers in a matter over which it has jurisdiction, and it may also issue to prevent an abuse of discretion where there is no other adequate remedy at law. 1

We held in Thermorama, Inc. v. Shiller, 271 Minn. 79, 135 N.W.2d 43, that whether the supreme court of this state, before actual commencement of trial, should review a pretrial discovery order is dependent upon whether it appears that the court is about to exceed its jurisdiction or its action relates to a matter that is decisive of the case; where the court has ordered the production of information clearly not discoverable and there is no adequate remedy at law; or where, in rare instances, it will settle a rule of practice affecting all litigants. See, also, Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649; Boldt v. Sanders, 261 Minn. 160, 111 N.W.2d 225.

In Brown v. St. Paul City Ry. Co., 241 Minn. 15, 62 N.W.2d 688, 44 A.L.R.2d 535, this court discussed the harshness of the rule which requires an attorney to subject himself to a finding of contempt and then appeal from the contempt order before a pretrial order can be reviewed, and we there suggested that possibly a better remedy would be to permit the use of a writ of prohibition so that the matter could be reviewed before irreparable harm had been done.

Rule 35.01, Rules of Civil Procedure, provides:

'In an action in which the mental or physical condition or the blood relationship of a party * * * is in controversy, the court in which the action is pending may order the party to submit to * * * a mental or physical or blood examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party or person to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is made.'

In Sibbach v. Wilson & Co. (7 Cir.) 108 F.2d 415, it was held under a similar Federal rule 2 that where the plaintiff in an action for injuries refused to submit to physical examination as required by a district court order, the district court's action in committing plaintiff to jail for contempt of court was not error. The Supreme Court reversed, holding that the rule exempted refusal to obey an order requiring a physical or mental examination from punishment as for contempt, but held that the provision permitting a district court to order a party to submit to such an examination when his physical or mental condition was in controversy was within the rule-making authority granted the Supreme Court by Congress. Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479.

In Ex parte Fahey, 332 U.S. 258, 259, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041, 2043, Mr. Justice Jackson, speaking for the court, said with respect to the use of extraordinary writs in an area similar to the one here involved:

'Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him. These remedies should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as substitutes for appeals. As extraordinary remedies, they are reserved for really extraordinary causes.'

In Annotation, 51 A.L.R. 183, 184, relative to physical examination of a plaintiff, we find this expression:

'As stated in the former annotations, the rule in the majority of jurisdictions is that the trial court has the power to require the plaintiff, in an action to recover for injuries, to submit to a physical examination in order that the extent of the injuries may be ascertained. However, the defendant does not have an absolute right to require the plaintiff to submit to the examination, the matter being...

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