METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY V. ROBERT B . OVERSTREET, JUDGE, SCOTT CIRCUIT COURT AND GARY AFTERKIRK, SYLVIA BANKS ; AND CHRIS HEARD, D/B/A LEXINGTON MOTORS
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2002-SC-0032-MR
METROPOLITAN PROPERTY & CASUALTY
INSURANCE COMPANY
V.
ORIGINAL ACTION FROM COURT OF APPEALS
2001-CA-1909
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
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART AND REVERSING IN PART
The underlying civil action was brought by Appellee Gary Afterkirk against
Appellant Metropolitan Property & Casualty Insurance Company ("MetLife"'), Afterkirk's
uninsured motorists insurer, for personal injuries sustained in an automobile accident
'Although the caption to the petition for a writ of prohibition filed in the Court of
Appeals identifies Appellant as Metropolitan Property & Casualty Insurance Company,
the body of the document continually refers to Appellant as "MetLife Auto & Home
Insurance Company." The text of Appellant's brief to this Court also identifies Appellant
as "MetLife Auto & Home Insurance Company ('MetLife') ." Thus, we adopt Appellant's
reference to itself as "MetLife ."
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 Plaintiffs 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.
Primm.
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
SSbbbach is famous, of course, for holding that rules regulating "procedure" are
valid under the Rules Enabling Act. 312 U .S . at 14 ; 61 S .Ct. at 426 .
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, 377
(1993) (noting that due process may nevertheless require an examination of a nonparty prosecuting witness) . In Perry v. Commonwealth ex. rel Kessinaer, 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. (uotin 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 registered nurse, that opportunity).
Federal trial courts have produced mixed results when deciding whether
particular circumstances warrant the presence of a video camera or other recording
3 Note that in Sexton v. Bates , supra , the Court of Appeals addressed the issue
of when an examinee may object to the opposing party's choice of examiner. However,
Sexton dealt with "the person or persons by whom [the examination] is made," rather
than the "conditions" of the examination .
device in the examination room . See 8A Charles Alan Wright, Arthur R. Miller, &
Richard L . Marcus Federal Practice & Procedure: § 2236 , at 496 (2d ed . 1994) (noting
that federal courts have responded to issues of a third party or recording presence at
Rule 35 examinations in "diverse ways that may, in large measure, be explained by the
Zabkowicz v. West Bend Co . . 585
particular circumstances presented ."); compare ,
F .Supp. 635, 636 (E.D. Wis. 1984) (allowing examination to be videotaped), with
Abdulwali v. Washinaton Metro . Area Transit Auth. , 193 F .R.D. 10, 14 (D.D.C. 2000)
(denying request to videotape) .
Nevertheless, we are not left completely without direction . Courts have
unanimously accepted the tenet that the conditions of a Rule 35 examination are left to
the sound discretion of the trial court. Wright, Miller, & Marcus, Federal Practice &
Procedure : § 2234, supra , at 476 ("The trial court has extensive discretion in
determining the details of the examination .") ; Sanden , supra, at 225; Lewin v. Jackson,
492 P.2d 406, 411 (Ariz . 1972) ; Haves v. District Court, 854 P.2d 1240, 1245-46 (Colo .
1993); Jacob v. Chaplin , 639 N.E .2d 1010, 1012 (Ind. 1994) ; Guskjolen v. Guskjolen ,
391 N .W .2d 639, 641 (N .D . 1986); State ex ref . Hess v. Henry, 393 S.E .2d 666, 669
(W .Va. 1990); cf. Mack v. Commonwealth , supra , at 277 (applying abuse of discretion
standard to trial court's decision whether examinee is a "party" under CR 35 .01) . We
have held in numerous cases that the trial court enjoys broad discretion in matters
pertaining to discovery . E.g., Berry v. Commonwealth , Ky., 782 S .W .2d 625, 627-28
(1990) ; see also Crawford-El v. Britton , 523 U.S . 574, 598-99, 118 S.Ct . 1584, 1597,
140 L.Ed .2d 759 (1998) (noting trial court's "broad discretion" to tailor and limit
discovery). Consequently, we conclude that the same standard should apply to a trial
court's decisions with respect to a CR 35.01 examination and will review such decisions
for abuse of discretion . Cf. Miller v. United States Fid . & Guar. Co ., Ky. App., 909
S .W.2d 339, 342 (1995) (applying "abuse of discretion" standard to trial court's decision
as to whether insurer had shown "good cause" for a physical examination under KRS
304.39-270) .
Other jurisdictions agree that some circumstances would merit an external
presence in the examination room . As noted supra , those federal courts that have
refused to allow such a presence have been federal district courts, and they have done
so on the particular facts of the cases before them. E
Abdulwali , supra , at 14
(denying request to videotape when plaintiff offered only "unsupported assertion" that
psychiatric examination was a manipulative attempt at deposing the plaintiff) ; Holland v.
United States, 182 F.R.D. 493, 496 (D.S .C . 1998) (denying request where no
"compelling circumstances") ; Romano v. II Morrow. Inc. , 173 F.R .D. 271, 274 (D. Or.
1997) (denying request when "the plaintiffs have not provided an explanation for why
they would require comfort during the examinations .").
Other federal district courts have allowed an audio recorder, stenographer, or
video camera in the examination room. Sidari v. Orleans Ctv. , 174 F.R.D. 275, 291
(W.D.N.Y. 1996) (audio recorder) ; Di Bari v. Incaica Cia Armadora. S.A . , 126 F.R.D . 12,
14 (E.D.N .Y. 1989) (stenographer) ; Zabkowicz , supra , at 636 (video camera) . Still other
federal district courts have allowed the examinee's attorney to attend the examination
(a request Afterkirk did not make in the underlying action here) . Gensbauer v. May
Dep't Stores Co. , 184 F .R.D . 552, 553 (E.D. Pa. 1999) ; Vreeland v. Ethan Allen, Inc.,
151 F.R.D. 551, 551 (S .D .N .Y. 1993) . And, some federal district courts have permitted
the examinee's physician to attend in lieu of his attorney . Lowe v. Philadelphia
Newspapers . Inc . , 101 F.R.D. 296, 299 (E .D . Pa . 1983) ; Warrick v. Brode , 46 F.R.D.
427, 428 (D. Del . 1969) ; Dziwanoski v. Ocean Carriers Corp. , 26 F.R .D . 595, 598 (D .
Md . 1960).
In some states, the right to an external presence in the examination room is
provided within the rule. Ariz. R. Civ. P. 35(a) (providing for right to audiotape and for
examinee's "representative" to attend physical examination, and for videotaping upon
showing of "good cause") ; Cal . Code Civ. Proc. § 2032(g)(1) (giving attorney right to
attend and record, but not participate in or disrupt, the examination) ; III . Stat. ch . 735, §
512 - 1003(d) (providing right of attendance by attorney or . "other such person as the
plaintiff may wish.") ; Mich . Ct. R . 2 .31 1 (providing that order "may" provide for
attendance of examinee's attorney); Okla . Stat. tit. 12, § 3235(d) (giving examinee's
"representative" right to attend); Pa. R. Civ. P . 4010(4)(i) ("The person to be examined
shall have the right to have counsel or other representative present during the
examination .").
Even absent a specific provision in the rule, many state courts have allowed a
recording device or other external presence as a matter of course. Langfeldt-Haaland
v. Saupe Enters . . Inc . , 768 P.2d 1144, 1147 (Alaska 1989) ("We align Alaska with those
authorities which allow plaintiffs counsel to attend and record, as a matter of course,
court-ordered medical examinations in civil cases.") ; U . S. Sec. Ins. Co. v. Cimino , 754
So.2d 697, 700-01 (Fla . 2000) ("Florida follows a liberal view when determining whether
attorneys may attend examinations ."); Jacob v. Chaplin , 639 N .E.2d 1010, 1013 (Ind.
1994) (allowing either party to record "in the absence of some overriding reason to
prohibit that recording ."); B . D. v. Carlev, 704 A.2d 979, 981 (N .J . Super . Ct. App. Div.
1998) ("Plaintiffs right to preserve evidence of the nature of the examination, the
accuracy of the examiner's notes or recollections, the tones of voice and the like
outweigh the examiner's preference that there be no recording device.") ; Parsons v.
Hytech Tool & Die. Inc. , 241 A.D .2d 936 (N .Y. App . Div. 1997) ("A plaintiff being
examined by a defense physician is entitled to have his or her attorney present during
the examination unless defendant makes a positive showing of necessity for the
exclusion of the attorney ."); Tiet,ien v. Dep't of Labor and Indus. , 534 P.2d 151, 154
(Wash . Ct. App. 1975) (holding that attorney is entitled to be present and "[a]ny
unnecessary interference caused by an attorney could be alleviated by specific court
order.").
Thus, it cannot be seriously argued that under no circumstances should an
external presence be allowed in the examination room . The debate lies in what
circumstances and in what form an external presence may be appropriate . As the
discussion supra indicates, federal district courts have been less likely to allow such a
presence than state courts . Commentators have attributed this trend to a difference in
how the examination is perceived . See William S . Wyatt & Richard A. Bales, The
Presence of Third Parties at Rule 35 Examinations , 71 Temp . L. Rev. 103, 116-24
(1998); Wright, Miller, & Marcus, Federal Practice & Procedure: § 2236 , supra, at 49697 . Is the Rule 35 examination a purely objective and scientific procedure? Or is the
examination a fundamental part of the adversary process?
Federal courts generally have adopted the philosophy that such an examination
should be objective and scientific . Accordingly, they have been wary of any external
presence that has the potential to insert the adversary process into the examination
room . E.4 , Romano , supra, at 274 ("'the presence of the observer interjects an
.
adversarial, partisan atmosphere into what should be otherwise a wholly objective
inquiry."'), quoting Shirsat v. Mut. Pharm . C o.. 169 F.R.D . 68, 71 (E .D. Pa . 1996) ;
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Tomlin v. Holecek, 150 F .R.D. 628, 633-34 (D. Minn. 1993) ("Were we to honor the
Plaintiffs request, that his counsel be present during the interview or that a
taperecording of the interview be preserved so as to assist in his attorney's questioning
of Dr. Aletky, we would be endorsing, if not promoting, the infusion of the adversary
process into the psychologist's examining room . . . ."); but see Gensbauer, supra , 184
F .R.D . at 553 ("Although, in theory, an [independent medical examination] is to be
scientific rather than adversarial, experience suggests that it is often the latter.") ; Di
Bari, supra, 126 F.R.D. at 14 ("a psychiatric examination by defendant's doctor is in
reality adversarial in nature .").
States have generally recognized that while a Rule 35 examination is ideally a
purely scientific exercise, it is also, inevitably, another arena in which the litigation is
joined . E .g ., Jacob, supra , 639 N.E .2d at 1013 ("The purpose of the examination is to
further the litigation process ."); Jakubowski v. Lengen, 86 A.D .2d 398, 400-01 (N .Y.
App. Div. 1982) ("A physician selected by defendant to examine plaintiff is not
necessarily a disinterested, impartial medical expert, indifferent to the conflicting
interests of the parties ."). The examining doctor may be encouraged by his employer to
treat the examination as a de facto deposition . Wright, Miller, & Marcus, Federal
Practice & Procedure : § 2236, supra , at 496 . Given this reality, these states hold by
rule or decision that the examinee may be entitled to a degree of protection against a
physician hired by the adversary .
We are persuaded by the latter view. By its very terms, CR 35.01 applies only
when the mental or physical condition of the examinee is "in controversy ." The
examining party, almost by definition, moves for a CR 35 .01 examination with the hope
of furthering its litigation position .' Thus, the examining physician will nearly always be
hired with an adversarial mind-set. In Tuttle v. Perrv, Ky., 82 S .W.3d 920 (2002), we
recognized that "expert witnesses are often compensated handsomely and it is widely
believed that they may be expected to express opinions that favor the party who
engaged them and who pays their fees ." Id . a t 923 . Tuttle also noted that "certain
expert witnesses derive a significant portion of their total income from testifying in
litigation ." Id. "We would close our eyes to reality," Hill v. Colorado, 530 U.S . 703, 767,
120 S .Ct. 2480, 2517, 147 L .Ed .2d 597 (2000) (Kennedy, J., dissenting), were we to
pretend, simply because CR 35.01 examinations should be conducted with only the
health of the examinee in mind, that they always are so conducted .'
Nevertheless, recognition of this potentiality does not mean that an external
presence should automatically be permitted, as it is in some jurisdictions discussed
supra . Indeed, the purpose of CR 35 .01 is to "level the playing field ." Taylor v. Morris ,
supra, at 379; Sexton v . Bates, supra , at 457. An external presence that deprives the
examining party of the opportunity to level the playing field by conducting a truly
objective examination would destroy the very purpose of the rule.
Therefore, we hold that the trial court may impose an external presence at a CR
35.01 examination only upon a showing of "good cause" by the examinee . This holding
places Kentucky in the median of the authorities discussed supra . We reject the
' Of course, a CR 35 .01 examination may also convince the examining party
that the "mental and physical condition" of the examinee is no longer "in controversy"
and thereby lead to settlement .
5 This is not to say that CR 35.01 examinations are necessarily biased . No
doubt, most doctors approach such examinations with a cold and scientific eye that
gives no thought to financial remuneration . We merely recognize that each such
examination is at least potentially colored by the adversarial process .
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"compelling need" test invented by some federal district courts, finding that test to be
unsupported by the language or rationale of CR 35 .01 . Similarly, we decline to make
an external presence automatic. Unlike jurisdictions such as California and
Pennsylvania, our rule contains no provision for the automatic attendance of the
examinee's attorney, physician, or recording device.
This approach also most closely conforms to the plain language of CR 35.01 and
the ordinary operation of the Kentucky Rules of Civil Procedure . As noted supra , CR
35 .01, like FRCP 35(a), is procedurally unusual in that it permits the examination only
upon a showing of "good cause" by the examining party. This requires "an affirmative
showing by the movant that each condition as to which the examination is sought is
really and genuinely in controversy and that good cause exists for ordering each
particular examination ." Schla_ enhauf , supra , at 118, 85 S.Ct. at 242-43 . The rule
imposes no such requirement upon the examining party with regard to the "conditions"
of the examination . It simply requires that the trial court's order "shall specifx the time,
place, manner, conditions, and scope of the examination and the person or persons by
whom it is to be made." (Emphasis added.)
Ordinarily, a party seeking to limit discovery is required to move for a protective
order pursuant to CR 26 .03 . See Sexton v. Bates , supra , at 457 (noting propriety of
application of protective order to CR 35 .01); see also Volvo Car Corp. v. Hopkins, Ky.,
860 S .W.2d 777, 779 (1993) ; Shobe v. EPI Corg . , Ky., 815 S.W .2d 395, 398 (1991) .
Parties may limit discovery pursuant to CR 26 .03 only "for good cause shown ." Given
the frequency of its usage, this standard is well known to both trial courts and attorneys .
Thus, we find that "good cause" is the appropriate standard by which to evaluate
conditions sought by the examinee on a CR 35.01 examination . See Wright, Miller, &
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Marcus, Federal Practice & Procedure : § 2234, supra, at 475-76 ("The provisions of
Rule 26(c) on protective orders are applicable to Rule 35 and a court ordering a
physical or mental examination may make appropriate protective provisions in its
order.").
The trial court should examine each request individually, and decide in its
discretion whether the proposed external presence in the examination room is
supported by "good cause." In exercising this discretion, the trial court should weigh
three primary factors . First, it should consider the nature of the proposed external
presence. An attorney is most likely to be problematic because of the potential to
unfairly disrupt the examination . As some commentators have noted, "[e]ven a few
well-timed objections could seriously undermine the examination, and it is not difficult to
imagine an overzealous attorney making more than a few objections ." Wyatt & Bales,
supra, at 117 . A court order requiring the attorney to remain silent lessens the potential
for disturbance but the attorney's presence is then of doubtful utility to the examinee
because an attorney may not act as a witness . SCR 3.130(3 .7); Morrison's Adm'r v.
Redmon , Ky., 287 S.W .2d 167, 168 (1956) ("when a lawyer is a witness for his client
. . . he should leave the trial of the case to other counsel") . Thus, an attorney could not
dispute a perceived inaccuracy in the doctor's testimony without jeopardizing his
representation of the examinee. In fact, Afterkirk's attorney advised during oral
argument that this was precisely why he did not ask that he be permitted to attend the
examination . While we do not hold that an attorney should never be allowed to attend a
CR 35 .01 examination of his client, it is difficult to conceive of circumstances where
such attendance would be warranted .
On the other hand, the potential disturbance from a video or audio recorder is
minimal, assuming the operator remains stationary, a suitable distance from the
examination table, and does not otherwise interfere with the conduct of the
examination . See Jacob, supra, 639 N.E .2d at 1013 ("We also fail to see any reason
why electronic recording of the examination would in and of itself impede an examiner's
ability to conduct a fair and complete examination ."); Hen
, 393 S .E.2d at 669 ("an
unobtrusive device, such as a tape recorder, presents little risk of interference in the
physician's examination ."). A video camera also has the advantage of creating an
exact record of the examination . Even if so inclined, no examiner would physically
abuse an examinee in front of a camera. Further, there will be no battle of words at
trial. If the examiner remembers the details of the examination differently from the
examinee, the videotape will be available to put the matter to rest. See Gibson v.
Gibson . 456 So .2d 1320, 1321 (Fla . Dist. Ct . App. 1984) ("it is the privacy of the
[examinee] that is involved, not that of the examiner, and if the [examinee] wants to be
certain that this compelled, although admittedly reasonable, intrusion into her privacy be
accurately preserved, then she should be so entitled .").
The presence of a physician or nurse will usually fall somewhere in the middle of
this spectrum . When the examiner is aware that a colleague is observing the
examination, he or she may be more likely to conform to the highest technical and
ethical medical standards. See Wyatt & Bales, supra, at 127 ("The presence of a
physician may have a minimally adverse effect on the examination, but the presence
also has a high probability of facilitating a fair and impartial search for the relevant
information ."). Medical observers are less likely than attorneys to act as adversaries yet
may ensure that the examination is fairly and properly conducted . See Wright, Miller &
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Marcus, Federal Practice & Procedure: ~ 2236, supra, at 497 (noting that a
scientifically valid test may be conducted in a faulty manner) . As noted supra , several
courts have allowed a physician to be present when the examinee's attorney has been
excluded from the examination . Lowe v. Philadelphia Newspapers. Inc. , 101 F.R.D .
296, 299 (E .D . Pa. 1983) ; Warrick v. Brode, 46 F .R.D . 427, 428 (D. Del . 1969) ;
Dziwanoski v. Ocean Carriers Corp . , 26 F.R.D . 595, 598 (D. Md. 1960) . Except in
unusual circumstances, the trial court should order that such persons, if allowed, be
only silent observers. The concern for a level playing field mandates that the CR 35.01
examiner be permitted to work in peace. Generally speaking, interruption will be
unnecessary because evidence obtained through improper questioning by the examiner
may be excluded at trial. Wheat v. Biesecker, 125 F.R.D. 479, 480 (N .D. Ind . 1989) .
Second, the trial court should consider evidence that the requested examination
might by conducted in an unfair manner. This evidence may include, but should not be
limited to: (a) evidence of past physical abuse of examinees by the examiner; (b)
evidence of past misrepresentations by the examiner; (c) evidence that the examiner
has financial incentives to consider the examinee as an adversary ; and (d) evidence
that the examiner's testimony is almost always slanted against the examinee, e.g. by
showing that the doctor has seldom if ever found an examinee to be disabled .
The mere fact that the doctor is being compensated should carry little weight
since virtually all CR 35.01 examiners are compensated . However, the trial court
should consider an allegation, e .g_, that the examiner will be paid a bonus if the jury
returns a verdict against the examinee, or that a substantial portion of the examiner's
income is derived from repeat CR 35 .01 business . Cf. Wyatt & Bales, supra , at 125-26
(listing examples of potential financial bias) .
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Third, the trial court should consider the nature of the examination itself. For
example, some courts have recognized that psychiatric examinations in particular
"necessitate an unimpeded, one-on-one exchange between the doctor and patient ."
Tomlin v. Holecek, 150 F .R.D. 628, 631-32 (D. Minn . 1993); see also Abdulwali , supra ,
193 F.R.D. at 13. An examining party resisting an external presence may submit an
affidavit or other evidence detailing the precise reasons why the examination should
proceed in isolation . Obviously, an affidavit supported by medical evidence and/or
scientific analysis of the negative effects of an external presence during a particular
examination will carry greater weight with the trial court than the physician's mere stated
preference to work unobserved.
Given the analysis and factors discussed supra , we conclude that Judge
Overstreet had "good cause" to order that Dr. Primm's examination of Afterkirk be
videotaped, thus, did not abuse his discretion in that respect . Pursuant to CR
76.36(5), Afterkirk submitted evidence to the Court of Appeals in support of the order
that tended to indicate Dr. Primm's bias. Although this evidence was not formally
placed before Judge Overstreet, Appellees note that Judge Overstreet was the trial
judge in one of the trials from which the information was gathered, i .e. , Votaw v. Anchor
Foods , No 98-CI-000489 (Scott Cir. Ct. 2001), and called the judge's attention to the
Votaw case during oral argument on the proposed CR 35 .01 conditions .
6 We do not address whether the trial court would be within its discretion to allow
the videotape to be used for purposes other than impeachment . That is an evidentiary
issue not raised in the petition . However, it was suggested during oral argument that
the videotape might serve as a useful visual aid during the examiner's direct testimony,
much as does an x-ray film or a mock human skeleton .
-1 7-
In the Votaw case, Dr. Primm testified by deposition that in the year 2001 his CR
35 .01 examinations amounted to approximately ten to fifteen percent of his practice.
Dr. Primm estimated that he saw between thirty-five and seventy patients per week .
Therefore, it may be estimated that he conducted between 3.5 (10% of 35) and 10.5
(15% of 70) CR 35 .01 examinations per week. In general, he charged between
$410.00 and $625 .00 for each such examination, including the cost of x-rays . He was
required to give a deposition in about one-third of such cases, and Appellees estimated
that his charge for each deposition ranged from $650 .00 to $900 .00 .7 Dr . Primm
testified that he was "slowing down" in 2001 and working only forty to forty-two weeks
per year . Thus, based on forty weeks of work in 2001, it could be estimated for
purposes of the petition that Dr. Primm earned annually between $83,400 .00 (assuming
3.5 examinations per week at $410 .00 and one deposition at $650 .00) and $370,500 .00
(assuming 10.5 examinations per week at $625 .00 and three depositions at $900.00)
for his CR 35.01 work .
Dr. Primm also noted in his Votaw deposition that he had been performing these
examinations for some time . He conceded that during a 1993 deposition he testified
that he worked fifty weeks per year and CR 35.01 examinations constituted as much as
twenty-five percent of his practice . Thus, Dr. Primm earned as much as $832,500 .00
annually from such examinations at that time (50 weeks x (18 exams at $625 .00) + (6
Unlike the other figures listed supra, Dr. Primm's deposition fee in 2001 is not
indicated by the excerpt in the record from his deposition in the Votaw trial.
Nevertheless, since the figure is not disputed by MetLife, we use it for the sake of
illustration . We do not rely on any particular numbers here but only note evidence that
Dr. Primm earned substantial income from his CR 35.01 work in 2001 .
-1 8-
depositions at $900 .00)).$ Judge Overstreet was familiar with these figures from having
presided over the Votaw trial.
Appellees also submitted to the Court of Appeals affidavits from the Votaw
examinee and another examinee from a different case, Rose Rhodus, regarding their
experiences with Dr. Primm . Betty Votaw averred in her affidavit that Dr. Primm 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 ." She claimed that although she has walked
with a distinct limp since childhood, Dr. Primm stated in his notes that she did not walk
with a limp. Further, when she told Dr. Primm she had problems raising her arm, "he
grabbed [her] arms and jerked them up hurting [her]."
Rhodus similarly averred that Dr. Primm "was extremely rude to me and tried to
mislead me regarding my description of my symptoms ." She claimed that Dr. Primm
"never asked me about any of the pain I was experiencing," and when she brought the
subject up, "he abruptly turned away from [her] and walked out of the room concluding
the examination ." Rhodus also described Dr. Primm as physically abusive . When she
explained that she was unable to touch her toes, Dr. Primm allegedly "placed his hands
upon [her] and tried to physically force [her] to make the bending movement that he had
requested ." Of course, we take no view with respect to the accuracy of these
allegations but only note that they support Judge Overstreet's decision .
MetLife does not articulate any convincing way in which a video camera would
impair Dr. Primm's examination . Its suggestion that Afterkirk would "perform" for the
camera is speculative and unconvincing . Issues of credibility, including any false
80f course, this estimate would need to be decreased for any difference in fees
between 1991-1992 and 2001 .
-1 9-
performance by Afterkirk, are for the jury to evaluate . Norris v . Commonwealth , Ky., 89
S.W .3d 411, 417 (2002); Young v. Commonwealth , Ky., 50 S .W .3d 148,165 (2001) ;
Commonwealth v. Smith , Ky., 5 S.W .3d 126,129 (1999) . And, while Dr. Primm
purportedly prefers to work unobserved, MetLife provided no persuasive reason why
that preference is medically necessary.
Our analysis of CR 35.01 applies equally to examinations conducted by plaintiffs
and defendants . Although MetLife correctly observes that in most circumstances it is a
defendant's physician who will conduct an examination of a plaintiff, that is not always
the case. Schla_ enhauf, supra , at 112-14, 85 S.Ct . at 239-40 (noting that Rule 35
applies equall y to defendants and plaintiffs); Harabedian v. Superior Court , 195
Cal .App .2d 26, 31-32 (Cal . Ct. App. 1961) (ordering defendant to undergo eye
examination) ; Brewster v. Martin Marietta Aluminum Sales Inc., 309 N.W.2d 687, 691
(Mich. Ct. App. 1981) (reversing order denying mental examination of sexual
harassment defendant); Constantine v. Diello, 24 A.D.2d 821, 821-22 (N .Y. App. Div.
1965) (ordering defendant to undergo eye examination) . Moreover, even when the
defendant's physician is conducting the examination for the purpose of evaluating the
plaintiffs claimed injuries, a video record of that examination has the potential to be
extremely helpful . The videotape may be used both to bolster the examining doctor's
testimony and to impeach the plaintiff and the plaintiffs medical expert . Any video or
audio record of the examination should be made available to both parties pursuant to
CR 35 .02 .
Finally, we reject Appellant's suggestion that it is "unfair" to allow Dr. Primm's
examination to be recorded when Afterkirk had the opportunity to meet with his own
doctor unobserved . While this viewpoint admittedly has been advanced by some
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federal trial courts, e.g_, Tomlin , supra , at 633, Hertenstein v. Kimberly Home Health
Care. Inc. , 189 F.R.D . 620, 631 (D . Kan. 1999), we find it unpersuasive here . First, we
have allowed Dr. Primm's examination to be videotaped only after a showing of "good
cause ." The district courts in Tomlin and Hertenstein recognized their own authority to
record the examination upon a showing of "good cause," 150 F .R .D. at 633 n.4; 189
F .R.D . at 628, but decided that "good cause" had not been shown, largely because the
examinations in those cases were psychiatric examinations that those courts believed
required an "unimpeded, one-on-one exchange between the doctor and patient." 150
F.R.D. at 633 ; 189 F.R.D. at 630-31 . This case presents only the issue of a physical
examination .
Second, there is an important difference between a party's examination by his
own doctor and a court-ordered examination by a doctor hired by that party's adversary.
The former is voluntary, usually (though admittedly not always) non-adversarial, and
unlikely to produce differing accounts of what occurred during the examination . The
latter, as discussed supra, is compelled by the court, inherently adversarial, and likely to
produce accusations of misrepresentation like those made by Betty Votaw and Rose
Rhodus. Indeed, the United States Supreme Court once referred to the compelled
examination, not inaccurately, as "a compulsory stripping and exposure." Union Pac.
Ry. Co. v. Botsford , 141 U.S . 250, 252, 11 S .Ct. 1000, 1001, 35 L .Ed . 734 (1891) .
Third, a trial court simply has no power to order conditions for a party's
examination by that party's own doctor . The trial court's power to do so with respect to
Dr. Primm's examination is authorized by CR 35 .01, the same rule that provides the
only authorization for the involuntary examination, itself. There will be equal access to
the only videotape produced in this case pursuant to CR 35 .02 and, under Judge
-2 1-
Overstreet's order, both parties may make use of the videotape equally for
impeachment purposes. The order thus gives rise to no cognizable "unfairness ."
II. FINANCIAL DISCOVERY .
In support of its argument that the trial court should not have ordered the
discovery of Dr. Primm's financial records, MetLife relies almost entirely on the
comment of our predecessor court in Current v. Columbia Gas of Kentucky, Ky., 383
S .W.2d 139 (1964), that while evidence of the expert witness's compensation is
admissible at trial, "the better rule is to limit the showing to the fact that payment is
being made . To permit details of the compensation injects collateral matter into the
trial ." Id . at 144. However, we overruled that passage in our recent decision in Tuttle v.
Perry, Ky., 82 S.W .3d 920 (2002).9 Tuttle held that an expert witness may be
questioned as to the amount of his or her compensation because "it is widely believed
that [expert witnesses] may be expected to express opinions that favor the party who
engaged them and who pays their fees ." Id . at 923 . Thus, we held that juries are
entitled, before relying on an expert's opinion, to know how much that expert is being
paid for the opinion. Id. at 924.
We now hold that an expert physician's annual Rule 35 .01 income, and the
percentage such examinations constitute of his general practice, is discoverable,
subject, of course, to the relevant provisions of CR 26.03. Tuttle relied extensively on a
decision by Maryland's highest court in Wrobleski v. Nora de Lara , 727 A.2d 930 (Md .
1999), which addressed almost this very issue in the context of cross-examination. Id.
9MetLife's brief was filed and oral arguments were conducted before Tuttle was
rendered .
-22-
at 517. As we noted in Tuttle, Wrobleski confronted the question of whether a
Maryland trial court had erred by "allowing inquiry as to the amount of income earned
by the expert witness and the approximate portion of the witness's total income derived
from serving as an expert witness ." 82 S .W .2d at 923 . Finding that "it is generally
appropriate for a party to inquire whether a witness offered as an expert in a particular
field earns a significant portion or amount of income from applying that expertise in a
forensic setting," Wrobleski held that the trial court did not abuse its discretion. Id. at
938 .
It is undeniable that an expert's tendency to slant his testimony may be affected
not just by how much he is being compensated on one particular occasion, but also by
how much of his annual income is derived from similar testimony . Tuttle , supra , at 923
(agreeing that "certain expert witnesses derive a significant portion of their total income
from testifying in litigation .") ; Collins v. Wayne Corp. , 621 F .2d 777, 784 (5th Cir. 1980)
("[a] showing of a pattern of compensation in past cases raises an inference of the
possibility that the witness has slanted his testimony in those cases so he would be
hired to testify in future cases .") . A jury could reasonably believe that a physician who
derives a substantial percentage of his annual income from CR 35.01 examinations,
potentially earning hundreds of thousands of dollars every year from such examinations
alone, might be tempted to slant his testimony to suit his employer.'° As the Supreme
Court of Illinois has noted,
'° Of course, we agree with Maryland's highest court that "the fact that an expert
witness devotes a significant amount of time to forensic activities or earns a significant
portion of income from those activities does not mean that the testimony given by the
witness is not honest, accurate, and credible. It is simply a factor that is proper for the
trier of fact to know about and consider ." Wrobleski, supra, at 938 .
-2 3-
[T]he financial advantage which accrues to an expert witness in a
particular case can extend beyond the remuneration he receives for
testifying in that case . A favorable verdict may well help him establish a
"track record" which, to a professional witness, can be all-important in
determining not only the frequency with which he is asked to testify but
also the price which he can demand for such testimony . . . . We thus find
that it was proper to inquire how much Dr. Martins was earning annually
from services relating to rendering expert testimony.
Trower v. Jones , 520 N.E .2d 297, 300 (III . 1988). In contrast, a physician conducting
his first and only CR 35.01 examination, but earning the same fee, might face a lesser
temptation . Yet, the jury would be unable to distinguish that physician from the
"professional witness" if we were to flatly prohibit the discovery ordered in this case .
We hold that such evidence is generally discoverable and that the extent to which it
may be used for impeachment purposes at trial is within the sound discretion of the trial
judge exercised pursuant to KRE 403 and KRE 611 .
Another issue here, however, is whether the evidence is discoverable by a court
order directed to the part who employed the expert witness . We note at the outset that
CR 26 .01 permits discovery "by one or more of the following methods : depositions
upon oral examination [CR 30] or written questions [CR 31 ]; written interrogatories [CR
33] ; production of documents or things or permission to enter upon land or other
property, for inspection and other purposes [CR 34] ; physical and mental examinations
[CR 35] ; and requests for admission [CR 36]." If discovery is sought by deposition, CR
45 .04 provides the additional tool of a subpoena duces tecum. A court order is
generally appropriate only upon the failure of a party or witness to comply with a proper
discovery request . CR 37.01(b)(i) .
Afterkirk has never sought discovery through the methods described in CR
26.01 . He simply requested an order requiring Dr. Primm , a nonparty, to produce his
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business and financial records or information contained therein pertaining to the
number of CR 35 .01 examinations performed by him and the income he derived
therefrom . Such an order equates to a CR 37 .01 order to comply with a CR 33
interrogatory or a CR 34 request for production of documents.
However, both CR 33 .01 and CR 34.01 apply only to interrogatories and
requests for production directed to a "party." It has long been the law that, while a
nonparty witness can be required by subpoena duces tecum to produce in conjunction
with the witness's deposition or trial testimony relevant and unprivileged documents in
his or her possession, the witness cannot be ordered to produce those documents for
purposes of discovery in advance of the testimony. Marion Nat. Bank v. Abell's Adm'x ,
88 Ky. 428, 11 S .W. 300, 301 (1889) . Adoption of the Kentucky Rules of Civil
Procedure effected no change in that respect . See Kurt A. Philipps, Jr., 6 .Kentucky
Practice, Rules of Civil Procedure Annotated , CR 34.01, Comment 5, at 642 (5th ed .
West 1995) ("Rule 34 relates only to parties to an action"). See also Hatch v. Reliance
Ins. Co . , 758 F .2d 409, 416 (9th Cir. 1985) ("Rule 34 may not be used to discover
matters from a nonparty ."); Fisher v. Marubeni Cotton Corp. , 526 F.2d 1338, 1341 (8th
Cir. 1975) (production of documents from a nonparty can be compelled only by a
subpoena duces tecum issued under CR 45 .01's federal counterpart, FRCP 45(d)(1));
Wright, Miller & Marcus, 8A Federal Practice & Procedure: § 2108, supra , at 60 .
The order as actually entered requires MetLife to produce Dr. Primm's business
and financial records or information contained therein . However, CR 34.01, as
enforced through CR 37.01, permits production and inspection only of documents and
other records "which are in the possession, custody or control of the party upon whom
the request is served ." See Phillips, supra , CR 34.01, Comment 3, at 641 ("The only
-2 5-
limitations upon the pursuit of this discovery method are that the materials or property
be in the possession, custody or control of the party from whom discovery is sought and
the discoverable matter must fall within the scope of Rule 26.02 .") . "'Control' with
respect to the production of documents is defined 'not only as possession but as the
legal right to obtain the documents requested upon demand ."' Cochran Consulting . Inc.
v. Uwatec USA. Inc. , 102 F.3d 1224, 1229-30 (Fed . Cir. 1996) (quoting Searock v.
Stripling, 736 F.2d 650, 653 (11th Cir. 1984)) . The fact that MetLife employed Dr.
Primm to examine Afterkirk does not give MetLife the legal right to obtain upon demand
Dr. Primm's business and financial records or information contained therein . Searock,
supra , at 653-54 (purchaser of sunken vessel counterclaiming against seller for
negligent design could not be compelled to produce documents in possession of
persons and corporations hired by him to perform repair work on the vessel); Lewis v.
Cotton Belt Route -- St. Louis S .W . Ry. Co., 576 N.E .2d 918, 928 (III. App . Ct. 1991)
(plaintiff could not be compelled to produce handwritten notes taken by nurse who
accompanied plaintiff to Rule 35-equivalent examination because nurse was not an
employee of plaintiff or counsel but an independent contractor) .
This is not to say that MetLife cannot be compelled to produce, pursuant to CR
33 and CR 34, records and information in its possession, custody or control,
.g._, the
number of examinations performed by Dr. Primm on its behalf and the amounts paid by
it to Dr. Primm for examinations, reports, depositions and trial testimony; or that Dr.
Primm cannot be compelled by subpoena duces tecum issued pursuant to CR 45.04 to
produce at a properly noticed deposition or at trial the requested documents and
information in his possession . We hold only that MetLife cannot be compelled to
produce documents and information pertaining to Dr. Primm that are not in its
"possession, custody or control."
Accordingly, 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, reverse the Court
of Appeals 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.
Primm, and direct that the writ be issued with respect to that latter aspect of the trial
court's order.
All concur.
COUNSEL FOR APPELLANT :
Catherine M . Stevens
John W. Walters
Suite 905
771 Corporate Drive
Lexington, KY 40503
COUNSEL FOR APPELLEE ROBERT B . OVERSTREET, JUDGE, SCOTT CIRCUIT
COURT :
Robert Overstreet
Room 304
Woodford County Courthouse
Versailles, KY 40383
COUNSEL FOR REAL PARTY IN INTEREST APPELLEE GARY AFTERKIRK :
Richard M. Rawdon, Jr.
226 East Main Street
P .O . Box 1481
Georgetown, KY 40324
COUNSEL FOR REAL PARTY IN INTEREST APPELLEE SYLVIA BANKS :
Jerry Anderson
120 North Upper Street
Lexington, KY 40507
COUNSEL FOR REAL PARTY IN INTEREST APPELLEE CHRIS HEARD, D/B/A
LEXINGTON MOTORS :
R. Craig Reinhardt
Fowler, Measle & Bell
Kincaid Towers
6th Floor, Suite 650
300 West Vine Street
Lexington, KY 40507-1660
COUNSEL FOR AMICUS CURIAE KENTUCKY ACADEMY OF TRIAL ATTORNEYS :
Pamela Yvette Hourigan
Suite 200
145 West Main Street
P .O. Box 752
Lexington, KY 40588-0752
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