METROPOLITAN PROPERTY v. REGARDING SCOTT CIRCUIT COURT HONORABLE ROBERT B. OVERSTREET, Judge, Scott Circuit Court AND GARY AFTERKIRK; SYLVIA BANKS; and CHRIS HEARD, d/b/a Lexington Motors
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RENDERED:
DECEMBER 21, 2001; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001909-OA
METROPOLITAN PROPERTY
& CASUALTY INSURANCE COMPANY
PETITIONER
ORIGINAL ACTION
REGARDING SCOTT CIRCUIT COURT
CIVIL ACTION NO. 98-CI-00437
v.
HONORABLE ROBERT B. OVERSTREET,
Judge, Scott Circuit Court
RESPONDENT
AND
GARY AFTERKIRK; SYLVIA BANKS; and
CHRIS HEARD, d/b/a Lexington Motors
REAL PARTIES IN INTEREST
OPINION AND ORDER
DENYING ORIGINAL ACTION
** ** ** ** ** ** ** ** **
BEFORE:
BARBER, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge.
In this original action brought pursuant to
Kentucky Rules of Civil Procedure (CR) 81, MetLife Auto & Home
Insurance Company (MetLife)1 seeks to have this Court to prohibit
the Honorable Robert B. Overstreet, Judge of Scott Circuit Court,
from allowing the videotaping of a medical examination of Gary
1
The caption of this original action names Metropolitan
Property & Casualty Insurance Company as petitioner. However, the
petitioner is referred to throughout the body of the document as
MetLife Auto & Home Insurance Company, and this Opinion and Order
adopts this designation.
Afterkirk, the plaintiff below and a real party in interest in this
Court, by Dr. Daniel D. Primm, Jr.
prohibiting
the
circuit
court
MetLife also seeks an order
from
requiring
it
to
provide
Afterkirk with certain information regarding Dr. Primm’s medical
practice.
MetLife, the intervening defendant in Gary Afterkirk v.
Sylvia Banks et al., Scott Circuit Court, Action No. 98-CI-00437,
is the automobile insurance carrier of Afterkirk who was injured in
a vehicular accident.
MetLife scheduled a medical examination of
Afterkirk pursuant to CR 35, to be conducted by Dr. Primm, an
orthopedic
surgeon
whose
offices
are
in
Lexington,
Kentucky.
Although Afterkirk did not object to the examination, he filed a
motion in which he proposed that the parties either agree on a
physician or that the court appoint “an impartial independent
medical examiner” other than Dr. Primm.
moved
the
court
to
order
Dr.
Primm
In the alternative, he
to
provide
business
financial information regarding his medical practice.
and
He also
asked that the examination be videotaped, or that medical personnel
be present. Following a hearing, the court entered the decision at
issue
herein,
which
orders
MetLife
to
provide
business
and
financial information regarding Dr. Primm’s medical practice for
the past twelve months, and allows Afterkirk to videotape the
examination “for impeachment purposes only.”
Hence, this original
action.
MetLife contends the respondent court is either acting
without jurisdiction, or erroneously within it. It claims that the
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production of the documents will “unduly burden and harass” Dr.
Primm.
of
Further, it argues, the videotaping will alter the nature
the
examination
and
cause
MetLife
irreparable
harm
by
interjecting the adversarial process into the only independent
opportunity available to it to evaluate Afterkirk’s condition, and
by turning the examination into a performance for the camera.
On the merits, MetLife contends that the documents sought
by Afterkirk are irrelevant to the subject matter of the action and
that his request for their production is inappropriate because it
would require a non-party to the action, unrepresented by counsel,
to come forward with information concerning his practice without
being served with a subpoena duces tecum.2
As to the videotaping
of the examination, MetLife argues it is contrary to the spirit of
CR 35 that aims at placing both sides to a controversy on an equal
footing regarding medical proof, and should not be allowed by a
court
without
evidence
of
Afterkirk failed to adduce.
a
compelling
reason
for
it,
which
Although MetLife refers to this
Court’s decision in Sexton v. Bates,3 it notes that there are no
reported Kentucky authorities specifically addressing the issue.
However, MetLife advises us that many federal courts have spoken
against the unfairness of allowing a plaintiff to use a recording
device
during
a
court-ordered
medical
examination,
while
a
defendant has no similar opportunity when the plaintiff visits her
2
Ky. R. Civ. Proc. (CR) 45.02.
3
Ky. App., 41 S.W.3d 452 (2001).
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own doctor.4
In response, Afterkirk disputes MetLife’s entitlement to
a writ since the circuit court has yet to decide whether the
documents or the videotape are admissible at trial.
Further, he
invites this Court to decide that the court did not abuse its
discretion in granting his request for business and financial
documents because Dr. Primm is not an independent, neutral medical
witness.
Rather, he argues, Dr. Primm is a paid professional
retained to advocate MetLife’s position and who comes to this case
with a reputation for the volume of medical examinations he has
performed for the defense in a number of Kentucky counties and for
the substantial financial gain he has derived therefrom, as shown
by his testimony in other cases. Therefore, Afterkirk argues, the
business and financial information he seeks is relevant to show
bias and prejudice, thus being proper information to use in crossexamination.5
Likewise, Afterkirk contends, the court did not abuse its
discretion in allowing the “non-intrusive” videotaping of the
examination precisely because Dr. Primm is a professional defense
witness with “more experience than most attorneys in interrogating
people”
and
because
the
court
was
aware
of
certain
sworn
accusations made by some patients examined by Dr. Primm in other
cases, and which Dr. Primm has denied.
4
Therefore, he argues, the
See, e.g., Hertenstein v. Kimberly Home Health Care, Inc.,
189 F.R.D. 620 (D. Kan.1999); Tomlin v. Holecek, 150 F.R.D. 628 (D.
Minn. 1993).
5
See Ky. R. of Evid. (KRE) 607.
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presence
of
a
camera
will
eliminate
the
“I
said,
you
said,
accusations” for the protection of both Dr. Primm and Afterkirk.
In fact, a number of courts have construed a CR 35 medical
examination as a part of the adversarial process and have allowed
the presence of a third person or the recording of it.6
A writ of prohibition or mandamus is an extraordinary
remedy that is entirely within the discretion of the reviewing
court.7
court
To obtain relief, a petitioner must show that the lower
is
proceeding,
or
is
about
to
proceed,
outside
its
jurisdiction and there is no adequate remedy by appeal, or that it
is about to act incorrectly, albeit within its jurisdiction, and
there
is
no
adequate
remedy
by
appeal
or
otherwise
and
the
petitioner would suffer great injustice and irreparable injury
unless a writ issued.8
Further, once the afore-stated threshold
prerequisites to entitlement have been satisfied, a petitioner is
required
to
make
the
additional
showing
decision is an abuse of discretion.
that
the
challenged
The specific concept that
emerges from a long line of authorities is that:
Where
the
challenge
involves
matters
of
fact,
or
application of law to facts, . . . an abuse of discretion
should be found only where the factual underpinning for
6
See, e.g., Jacob and Sofo v. Chaplin, 639 NE 2d 1010 (Ind.
1994) relying upon Zabkowicz v. West Bend Co., 585 F. Supp. 635
(E.D. Wisc. 1984) and Rochen v. Huang, 558 A.2d 1108 (Del. Super.
1988).
7
Haight v. Williamson, Ky., 833 S.W.2d 821, 823 (1992).
8
See, e.g., Southeastern United Medigroup v. Hughes, Ky.,
952 S.W.2d 195, 199 (1997).
-5-
application of an articulated legal rule is so wanting as
to equal, in reality, a distortion of the legal rule.9
Applying the aforementioned concepts to MetLife’s claim
regarding the discovery of business and financial information about
Dr. Primm’s medical practice, we are of the opinion that MetLife
has failed to satisfy the prerequisites to entitle it to relief.
It is hard to see any irreparable harm that might be suffered by
MetLife from the discovery.
It claims that the information sought
by Afterkirk is not within the scope of CR 26 but does not explain
why.
It also claims that the discovery would unduly burden Dr.
Primm by requiring “hours of work to compile by Dr. Primm’s staff,
taking
valuable
patients.”
time
away
from
the
treatment
of
Dr.
Primm’s
The Court believes that only Dr. Primm could make such
an argument.
However, he has not been served with a subpoena duces
tecum and, consequently, has no vehicle by which to challenge the
discovery sought by Afterkirk before the court.10
Although it
appears that Dr. Primm might have produced similar information in
other cases, the issue in this case is simply not ripe for review
at this time, and the denial of relief to MetLife should not be
interpreted to foreclose Dr. Primm from raising his own challenge
below, if he so chooses, should he be properly brought into the
9
Id. at 199-200.
10
Pursuant to CR 45.02, a person who is directed to produce
books, papers, documents or tangible things may move the court
issuing a subpoena duces tecum to quash or modify the subpoena if
it is unreasonable and oppressive or require the party seeking the
subpoena to pay the reasonable cost of producing the books, papers,
etc.
-6-
controversy.
We
turn
next
to
MetLife’s
argument
videotaping of the CR 35 medical examination.
regarding
the
MetLife is entitled
to a review of the merits of this issue because, if videotaping
were ultimately held not permissible after it had already taken
place, any injury suffered by MetLife could not be redressed in
subsequent proceedings.11 In addition, as this Court said in Sexton
v. Bates,12
“[t]he absence of any Kentucky reported authority
construing and applying an important component of CR 35.01 by
itself would justify a review of the merits of the case sub
judice.”13
However, in view of the circumstances that surround the
trial court’s decision, MetLife’s argument does not pass muster on
the merits.
CR 35.01 provides that:
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 expert, or to produce
for examination the person in his custody or legal
11
See Sisters of Charity Health Sys. Inc. v. Raikes, Ky., 984
S.W.2d 464, 466 (1998); Bender v. Eaton, Ky., 343 S.W.2d 799
(1961).
12
Ky. App., 41 S.W.3d 452 (2001).
13
Id. at 455.
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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.
Afterkirk does not object to being examined by Dr. Primm.
Thus, the issue becomes whether the “conditions” to be specified by
a court “for good cause shown” may properly include the videotaping
of a medical examination made pursuant to the CR 35.01.
Without
question, the circuit court is vested with broad discretion over
the discovery process.
In this original action, we are not called
upon to decide whether we would have ruled as the circuit court did
had we been in its shoes, but we must decide whether the latitude
given to the plaintiff to videotape his CR 35 examination exceeds
the parameters of reasonable discovery and, therefore, was an abuse
of the court’s discretion.
While the appellate courts of Kentucky have yet to issue
guidelines regarding the videotaping of CR 35 medical examinations,
some other states and some federal courts have had the opportunity
to do so.
These authorities have also analyzed other issues that
have come before those courts with even more frequency, including
whether the party to be examined may demand the presence of
counsel, treating physician, court reporter or other third person;
and we take note that the issues relating to who may observe the
examination and those relating to the videotaping of it share many
of the same principles.
To set the stage, we first turn to the
-8-
treatises that have distilled the concepts that may be gleaned from
a study of those cases.
The presence of a court reporter or the use of a tape
recorder is permissible during a medical examination to
protect
prevent
the
subject
misleading
from
improper
accounts
inquiries
by
the
and
to
examining
physician. . . .
* * *
It has been noted that the videotaping of an examination
is not expressly authorized, and a request that an
examination be videotaped will not be granted unless the
subject shows that videotaping is necessary to protect
the subject and assure the integrity of the physician’s
report.14
And we find helpful this comment:
The examination is likely to be an important, perhaps
crucial, event in the development of the case. During
this episode, the party will have to interact with, and
answer questions from, a trained representative of the
opposing side. It may seem odd to deprive the party of
representation during this encounter . . . .
There have been varying views on whether the attorney for
the examined party may be present during the examination,
with
14
the
difference
23 Am. Jur.2d
(1983)(footnotes omitted).
in
view
Depositions
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perhaps
and
reflecting
Discovery
§
the
306
indecision of the courts about whether the examination is
part of an adversary proceeding, in which the examining
doctor is acting for the other side, or whether the
doctor is an impartial expert seeking only the truth.
There would seem to be some instances in which the
presence of the attorney would be clearly inappropriate
. . . .15
This Court’s review of the various federal and state
cases available on the matter reveals many different, and often
contrary, views.
While the federal courts are split on the topic,
it is clear that “the greater weight of authority” disfavors the
presence of observers or a recording device during a court-ordered
medical examination as compromising the “level playing field”
intended by CR 35.01, and leading to “the infusion of the adversary
process” into the examining room.16
Another stated concern is that
the presence of an observer or recording device “would constitute
a distraction during the examination and work to diminish the
accuracy of the process . . . .”17
By contrast, some state courts view the court-ordered
medical examination as an integral part of the adversarial process
15
8A Wright, Miller & Marcus, Federal Practice and Procedure:
Civil 2d, § 2236 (1994)
16
Tomlin v. Holocek, supra, at 632-34. See also, Hertenstein
v. Kimberly Home Health Care, Inc., supra, at 631.
17
Shirsat v. Mutual Pharmaceutical Co., Inc., 169 F.R.D. 68,
70 (E.D. Pa. 1996); Romano v. II Morrow, Inc., 173 F.R.D. 271, 274
(D. Or. 1997) (adopting Shirsat reasoning.)
-10-
and give a party the absolute right to have an observer present.
Others leave the decision to the sound discretion of the trial
court.
Still others require the party who wants the presence of an
observer or the recording of the examination to carry the burden of
showing the court that good cause exists for the favorable exercise
of its discretion.18
While we find this background instructive, our task is
actually simple because this Court has already spoken on a closely
related question. In Sexton v. Bates,19 the issue was whether the
defendant
was
required
to
accept
a
physician
of
the
court’s
choosing to conduct a CR 35 examination of the plaintiff after the
latter objected to the defendant’s selection of Dr. Primm, whom he
characterized
as
a
“defense
doctor”
with
a
“large
incentive to ensure that his opinions are conservative.”20
economic
We said
that:
It is a well established principle that a trial court has
broad discretion over disputes involving the discovery
process.
However, this discretion is not unlimited, and
we
determined
have
that
the
respondent’s
outright
rejection of Dr. Primm to perform the [examination] is an
abuse of discretion for lack of proper legal basis.21
18
See, e.g., a compilation of illustrative cases in Galieti
v. State Farm Mut. Auto. Ins. Co., 154 F.R.D. 262 (D. Colo. 1994).
19
Supra, n. 2.
20
Id. at 454.
21
Id. at 455.
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In Sexton, we adopted the position espoused by many
federal courts that “a defendant may choose the examining doctor
and that such choice is entitled to respect but for the plaintiff’s
‘valid objection’.”22
We found that the plaintiff’s objection to
the selection of Dr. Primm was based on unsubstantiated allegations
regarding the physician’s “track record”.
We concluded that a
defendant was entitled to choose the examining doctor unless the
plaintiff
made
“a
valid
objection,
supported
by
compelling
evidence, regarding the physician’s qualifications or record, not
upon a mere conclusory assertion discrediting the selection.”23
We
based our decision on a principle enunciated by the afore-mentioned
federal authorities, that “the purpose embodied in CR 35.01 is to
provide ‘a level playing field between the parties.’”24
We apply the same principle in this case.
We hold that
a party does not have an unqualified right to have an observer or
a recording device present in the CR 35 examination room.
Rather,
the party who seeks this type of relief must demonstrate to the
court that there is a compelling need for it.
The court shall
review each case on its own facts and exercise its discretion
accordingly.
In this case, Afterkirk demonstrated a compelling need to
the respondent court and, therefore, its decision allowing the
22
Id. at 457.
23
Id. at 457.
24
Id. at 457.
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videotaping of his CR 35 examination by Dr. Primm was not an abuse
of discretion.
First, in the memorandum accompanying his motion
seeking leave to videotape the examination, Afterkirk states:
Dr. Daniel Primm has the reputation among the Plaintiff’s
bar of being biased in favor of Defendants who frequently
hire him to testify on their behalf. He usually testifies
that there is nothing wrong with the person, or if they
are obviously hurt, that it is not a serious injury, will
not affect their future or that the condition preexisted
the accident.
From
previous
testimony
by
Dr.
Primm,
it
has
been
calculated that Dr. Primm earns between $500,000 and
$750,000
per
year
doing
medical
examinations
and
testifying.
Next, Afterkirk asserts in his response to the petition
that the same respondent court presided over another case where the
plaintiff was examined by Dr. Primm and testified, in open court
and, subsequently, in an affidavit appended to the response, that:
3. When Dr. Primm took my history he was very rude and
repeatedly distorted what I told him. He tried to get me
to
say
things
that
I
had
not
stated.
He
was
very
intimidating.
4. After he was finished I asked him if I could speak, he
said, “yes, I would like to get a straight answer from
you.”
5. One of my problems was with my shoulder. I had trouble
-13-
raising my arm. When I told him I had problems raising
it, he grabbed my arms and jerked them up hurting me.
6. I have walked with a very distinct limp since I was a
child. Dr. Primm stated in his notes that I did not walk
with a limp.25
Afterkirk also provides as an exhibit the affidavit of
another plaintiff examined by Dr. Primm, which states in pertinent
part:
4. During the examination Dr. Daniel D. Primm, Jr. was
extremely rude to me and tried to mislead me regarding my
description of my symptoms.
5. During the examination Dr. Daniel D. Primm, Jr. asked
me to perform physical movements which I was unable to
perform such as reaching down and touching my toes. When
I advised Dr. Primm that I was unable to make such a
physical movement he placed his hands upon me and tried
to physically force me to make the bending movement that
he had requested.
6. Dr. Primm never asked me about any of the pain I was
experiencing. When I tried to get him to address that
issue by bringing the subject up, he abruptly turned away
from [me] and walked out of the room concluding the
examination without further discussion.
7. Subsequently Dr. Primm reported that I was able to
25
Excerpts from affidavit of Betty Votaw.
-14-
make such movements and wrote a report contradicting my
physicians’ findings, particularly stating that I was
able to work a full five day work week.
8.
Had
the
examination
been
videotaped
the
above
information could easily be verified and Dr. Primm’s
mistreatment of me would be evident.26
Dr. Primm has denied the allegations.
In view of such
conflicting reports of what took place during previous CR 35
examinations by the same physician, we conclude that the respondent
court crafted a sound and wise decision under the circumstances,
one that might eliminate what Afterkirk calls a “swearing match”
between doctor and patient, and one best fashioned to protect him,
Dr. Primm and the integrity of the process.
The record of the
Sexton action did not include any “valid” or “cogent” reason
supporting the court’s appointment of a physician other than Dr.
Primm, and this Court determined that the “outright rejection of
Dr. Primm . . . [was] an abuse of that discretion for lack of
proper legal basis.”27 In this case, however, we are satisfied that
the respondent court had a “proper legal basis” to grant Afterkirk
leave to videotape his CR 35 examination.
Lastly, we are not persuaded by MetLife's argument that
26
Excerpts from affidavit of Rose Rhodus who is a real party
in interest in another original action pending before this Court
styled Primm v. Judge Sheila Isaac, Fayette Circuit Court, 2001-CA001965-OA in which Dr. Primm seeks to prevent the enforcement of an
order granting Rhodus’s request for the discovery of business and
income tax records relating to his medical practice.
27
Id. at 455.
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the videotaping of Afterkirk's examination will irreparably alter
its nature.
Afterkirk's counsel has stated on the record that the
process chosen by him will be "non-intrusive."
We also note that
courtrooms in a significant number of Kentucky counties routinely
use videotape equipment to record proceedings.
This Court is not
aware of any suggestion that this system causes a distraction to
the bench, the bar or to witnesses.
Like the Supreme Court of
Indiana in Jacob and Sofo v. Chaplin,28 we "fail to see any reason
why electronic recording of the [CR 35] examination would in and of
itself impede an examiner's ability to conduct a fair and complete
examination."
the
When "good cause" for using this process is shown,
videotaping
of
a
CR
35
examination
is
an
appropriate
"condition" for a court to order.
Metlife’s petition seeking to prohibit Judge Overstreet
from ordering the videotaping of Gary Afterkirk’s CR 35 examination
is denied.
Likewise denied is Metlife’s petition seeking an order
prohibiting Judge Overstreet from requiring it to provide certain
information regarding Dr. Primm’s medical practice.
ALL CONCUR.
ENTERED: December 21, 2001
/s/ Joseph R. Huddleston
Judge, Court of Appeals
COUNSEL FOR PETITIONER:
COUNSEL FOR REAL PARTY
IN INTEREST GARY AFTERKIRK:
Catherine M. Stevens
GOLDEN & WALTERS
Lexington, Kentucky
Richard M. Rawdon, Jr.
Georgetown, Kentucky
28
Supra, n. 6, at 1013.
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