ANDREW SILVESTRI V. HON. ROBERT E. GILLUM, JUDGE ET AL
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL ATOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : NOVEMBER 23, 2005
NOT TO BE PUBLISHED
ixprettts Gaud of
2005-SC-000392-MR
ANDREW SILVESTRI
V.
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
2005-CA-000182
PULASKI CIRCUIT COURT NO. 03-CI-01269
HON . ROBERT E. GILLUM, JUDGE,
PULASKI CIRCUIT COURT, ET AL.
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant Andrew Silvestri, appeals from the Court of Appeals' denial of
his petition for extraordinary relief. Specifically, Silvestri sought a writ of prohibition to
prevent the trial court from enforcing its order allowing the Plaintiff below, Kathy Ashley,
to have her CR 35 medical examination videotaped .
The underlying litigation involves a car accident between Ashley and
Silvestri's sixteen-year-old daughter who was driving a vehicle owned by her father at
the time of the accident . Ashley filed suit against Silvestri and his daughter for alleged
injuries sustained in the accident . After the Silvestris requested a CR 35 examination of
Ashley, Ashley moved to have the examination videotaped . The court granted the
motion and ordered that Ashley be allowed to videotape the examination . The Silvestris
sought a writ of prohibition to prevent the trial court from enforcing this order.
CR 35.01 permits the court to order a party to submit to a physical
examination by an appropriate health care expert when the party's mental or physical
condition is in controversy and good cause is shown for the examination . The
examined party is entitled to "a detailed written report of the examining health care
expert setting out all findings, including results of all tests made, diagnoses and
conclusions[ .]"' While the rule is silent on what conditions a court may impose on the
examination, this Court has held that the trial court has discretion to determine whether
to impose certain conditions, including the appropriateness of certain external
presences such as a video recorder . While the parties disagree as to whether the trial
court abused its discretion, both agree that Metropolitan Property & Cas. Ins. Co., v.
Overstreet3 governs the issue .
In Overstreet , this Court conducted a thorough review of the jurisprudence
from federal courts and other state jurisdictions concerning the permissibility of an
external presence in the examination room, such as an audio or video recording device.
Our review revealed that some states allow an external presence as a matter of course .
Federal courts have taken a more conservative approach and allow an external
presence only if the circumstances of the particular case warrant it. However, "[c]ourts
have unanimously accepted the tenet that the conditions of a Rule 35 examination are
left to the sound discretion of the trial court. "4 Thus, in Overstreet, this court held that a
trial court could impose an external presence in the Rule 35 examination upon a
showing of good cause. We pronounced three primary factors to aid the trial court in
' CR 35 .02 .
2 Metropolitan Property & Cas . Ins. Co., v. Overstreet , 103 S .W.3d 31 (Ky. 2003) .
3
_Id .
4
Id . at 35-36 .
evaluating the "good cause" standard . We held that the court should consider the
nature of the proposed external presence, the nature of the exam itself, and any
evidence that the examination may be conducted in an unfair manner.5 In the instant
case, the Appellant contends that the trial court's ruling was erroneous because Ashley
failed to show good cause for having the examination videotaped .
In response, we first note that the challenged ruling is interlocutory and
therefore not immediately appealable .s Thus, Appellant attempts to utilize a special
procedural vehicle to obtain interlocutory review. CR 81 allows a party to bring an
original action against a trial court in the Court of Appeals . An appellate court may
grant relief under CR 81 to correct an erroneous interlocutory ruling .' Such relief takes
the form of an extraordinary writ, and is only granted in rare circumstances, after certain
firm prerequisites are met.8 Precisely, only upon a showing that the ruling, if erroneous,
would result in irreparable injury and could not be corrected through conventional
appeal or otherwise, will the petitioner be entitled to a review of the merits-9
Accordingly, the Court of Appeals need only review the merits of the alleged error if the
threshold showing is made .' ° If a petitioner fails to meet the threshold, the petitioner is
not entitled to the relief sought regardless of whether the interlocutory order is
erroneous."
5 _Id.
6 CR 54.02. See also Vaught v. Vaught, 296 Ky. 754, 178 S.W .2d 590 (Ky. 1944) .
Bender v. Eaton, 343 S .W .2d 799 (Ky. 1961) (A court may also grant relief where the
trial court is acting outside its jurisdiction . As noted, however, Overstreet held that the
imposition of conditions on a Rule 35 examination was within the sound discretion of
the trial court. Clearly, then, the trial court in the instant case was acting within its
jurisdiction).
Bender , 343 S.W.2d 799 .
9
_Id.
i° Id
11
1d
In Overstreet , the Court of Appeals did not explicitly decide whether an
extraordinary writ was the appropriate avenue for relief in this situation . Instead, it
proceeded directly to the merits of the writ petition. Consequently, this Court also
reviewed the decision on the merits . In the instant case, the Court of Appeals did not
reach the merits of the alleged error. Rather, it declined to review the merits of the
petition because Silvestri failed to meet the prerequisite showing of irreparable injury
and lack of an adequate remedy by appeal or otherwise . Accordingly, we first focus on
the threshold requirements and declare this to be the better practice .
The Court of Appeals pointed out that "[t]he Silvestris make no argument
as to the adequacy of an appeal of the matter." Furthermore, the only argument of
irreparable injury is that the examination will become a mere performance due to the
presence of a video recorder and will place the parties in unequal positions. Our
jurisprudence illustrates that we have acted with extreme reluctance in entertaining
extraordinary writ petitions, let alone, granting them. 12 The most common types of
injuries that we have held to be irreparable and incapable of appellate remedy are
those which require disclosure of potentially privileged information, for example, trade
secrets or information protected by the attorney-client privilege . 13 This is not such a
case. Simply stated, Appellant has not shown irreparable injury . If prejudicial error
occurs at trial as a result of the videotaped examination, Petitioner may present his
claim on appeal after entry of a final judgment.
Accordingly, we affirm the Court of Appeals' decision as Appellant has not
met the threshold requirements necessary to entertain the merits of his petition .
'2
Grange Mut. Ins. Co. v . Trude, 151 S.W .3d 803 (Ky . 2004).
See, e .g ., Trude, 151 S.W.3d 803; The St . Luke Hosp., Inc ., v. Kopowski , 160
S .W .3d 771 (Ky. 2005) .
'3
All concur.
COUNSEL FOR APPELLANT :
John W . Walters
Catherine M. Stevens
GOLDEN & WALTERS, PLLC
771 Corporate Drive, Suite 905
Lexington, KY 40503
COUNSEL FOR APPELLEES :
David C. Teater
P . O. Box 2130
Danville, KY 40423
Ron Nichols, Process Agent
State Farm Insurance Company
2500 Memorial Blvd .
Murfreesboro, TN 37131
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