TAYLOR BANKS V. HON. BARRY L. WILLETT, JUDGE, JEFFERSON CIRCUIT COURT, DIVISION ONE AND JAMES WILLIAMS, JR.Annotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2010-CA-000408-OA
JEFFERSON CIRCUIT COURT NO . 09-CI-005325
HON. BARRY L . WILLETT, JUDGE
JEFFERSON CIRCUIT COURT, DIVISION ONE
JAMES WILLIAMS, JR .
REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
Appellant, Taylor Banks, and the real-party-in-interest, James Williams,
Jr., were involved in a car accident in February of 2009 . . Williams suffered
severe injuries and sought damages for permanent impairment, pain and
suffering, medical expenses, and lost wages. He filed suit against Banks in
Jefferson Circuit Court.
As discovery progressed, Banks requested a defense-sponsored physical
examination of Williams pursuant to CR 35 .01 . Banks secured Dr. Martin G.
Schiller to perform the examination. Over the objections of Banks, Williams
successfully moved the trial court to establish conditions under which the
examination could be conducted and also requested that the exam be
The trial court's order granting Williams' motion stated, in pertinent part:
[T]he CR 35 .01 exam of Plaintiff [shall] be conducted under the following
conditions and guidelines :
1 . The scope of the examination shall only be for the injuries claimed in
this subject wreck and not any unrelated injuries ;
2 . This shall be a physical examination only and the Plaintiff shall not be
questioned by the doctor or his staff regarding details of how the
wreck occurred, employment, or other areas outside specific questions
about her (sic) physical injury;
3 . The Plaintiff shall not be required to produce any documentation or
diagnostic test results;
4 . Any testimony or report from the Defendant's expert physician(s) shall
be limited in scope to Plaintiff's injury from the wreck and shall only
be within the scope of his professional specialty ;
5 . The doctor's failure to produce any and all financial information
properly requested under the law of Commonwealth of Kentucky shall
prohibit his right to testify at trial .
Banks moved the trial court to reconsider and included with the motion
a sworn response from Dr. Schiller . In his letter, Dr. Schiller declined to
proceed with the examination under the guidelines imposed. He explained that
the conditions would impair his ability to conduct a thorough and effective
examination and would violate the standards of practice set forth by the
American Medical Association . The trial court denied the motion.
Banks then moved the Court of Appeals for a writ of prohibition, arguing
that the trial court was acting erroneously, though within its jurisdiction. The
Court of Appeals denied the motion, determining that Banks failed to. meet the
threshold requirements for the granting of a writ. That is, Banks failed to
demonstrate that he lacked an adequate remedy by appeal and that irreparable
injury would result. He now appeals to this Court.
In the seminal case of Hoskins v. Maricle, this Court not only clarified the
history and function of writs in Kentucky, but also the circumstances under
which they will be granted . 150 S .W.3d 1 (Ky . 2004) . When, as here, the
petitioner alleges that the trial court is acting erroneously, though within its
jurisdiction, a writ will only be granted when two threshold requirements are
satisfied: there exists no adequate remedy by appeal or otherwise ; and the
petitioner will suffer great and irreparable injury. Id. at 18. These two
requirements are prerequisites to the issuance of a writ and will be considered
prior to any analysis of the merits . "[O]nly after determining that the
prerequisites exist will the court decide whether an error occurred for which a
writ should issue ." Id.
"`No adequate remedy by appeal' means that any injury to Appellants
`could not thereafter be rectified in subsequent proceedings in the case .'
Independent Order ofForesters v. Chauvin, 175 S.W.3d 610, 614-15 (Ky. 2005)
(quoting Bender v. Eaton, 343 S.W.2d 799, 802 (Ky.App. 1961)) . In cases
where, as here, the writ action concerns a trial court's discovery orders, this
Court has drawn a distinction between orders limiting or prohibiting discovery
and those allowing discovery. "[T]here will rarely be an adequate remedy on
appeal if the alleged error is an order that allows discovery ." Grange Mut. Ins.
Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004) . This is so because "[o]nce the
information is furnished it cannot be recalled." Bender, 343 S .W .2d at 802 .
Cases where we have granted a writ to prevent discovery typically involve the
disclosure of privileged materials or documents . See, e.g., CSX Transp., Inc. v.
Ryan, 192 S .W.3d 345 (Ky. 2006) (writ issued to prohibit disclosure of attorney
work product material) .
In this case, the trial court's order limits discovery and does not involve
the potential disclosure of privileged information. When, and if, an adverse
final judgment is rendered in this case, Banks will have the normal and usual
avenues of appeal available to him. As such, we find no error in the Court of
Appeals' conclusion that Banks failed to satisfy this threshold requirement.
Further, Banks has not satisfied his burden in demonstrating irreparable
injury . Irreparable injury is of a "grievous or ruinous" nature. Radford v.
Lovelace, 212 S .W.3d 72, 78 (Ky. 2006) (overruled on other grounds by Cardine
v. Commonwealth, 283 S .W.3d 641, 646-47 (Ky . 2009)) . The crux of Banks'
argument is that he will not be able to employ the medical expert of his choice
or to otherwise fully exercise his rights under CR 35 . Even if we were to
assume that Banks' rights have been infringed upon, a question we do not
reach herein, "the mere loss of valuable rights . . . [does not] constitute great
and irreparable injury entitling the loser automatically to relief from the error."
Schaetzley v. Wright, 271 S .W .2d 885, 88.6 (Ky.App. 1954) . Moreover, this
Court has repeatedly explained that the "[i]nconvenience, expense, annoyance,
and other undesirable aspects of litigation" do not constitute irreparable injury.
Fritsch v. Caudill, 146 S .W.3d 926, 930 (Ky. 2004) . The potential injury to
Banks is not an egregious or irreparable harm so as to warrant relief in the
form of a writ.
Though not pled before the Court of Appeals, Banks seems to now argue
that this matter falls within the "special cases" exception. In these special
cases, the prerequisite showings of inadequate appellate remedy and
irreparable injury may be set aside . Trude, 151 S.W.3d at 808 . Instead, there
must be a showing that "a substantial miscarriage of justice will result if the
lower court is proceeding erroneously, and correction of the error is necessary
and appropriate in the interest of orderlyjudicial administration ." Bender, 343
SM.2d at 801 . This argument was not presented to the Court of Appeals and,
therefore, we need not address it. Suffice it to say, however, that Banks has
failed to demonstrate that correction of the trial court's error, assuming one
does exist, is necessary to maintain orderly judicial administration . Cf. Mills v.
Messer, 268 S .W .3d 366, 367 (Ky . 2008) (where criminal defendant sought
evidentiary hearing to determine whether he was entitled to state-sponsored
expert assistance, it was in the interest of orderly judicial administration to
grant writ of mandamus and avoid needless retrial) .
A writ is an unusual remedy reserved for extraordinary circumstances
and is granted rarely. Where, as here, it is alleged that the trial court is
proceeding erroneously, but within its jurisdiction, we review the Court of
Appeals' decision for an abuse of discretion.
rude, 151 S .W.3d at 810 . In
light of the precedent cited herein, we find no abuse of discretion in the Court
of Appeals' determination that Banks failed to meet the threshold requirements
for issuance of a writ.
The order of the Court of Appeals is hereby affirmed .
Minton, C .J ., Cunningham, Noble, Schroder, Scott and Venters, JJ .,
concur. Abramson, J ., also concurs with the majority opinion for the reason
that Appellant Banks has not met the Court's standard requiring "no adequate
remedy by appeal" and demonstration of "irreparable injury" and is compelled
to reiterate that these constitute the grounds for denial of the writ, not any
determination regarding the legal soundness of the trial court's order.
COUNSEL FOR APPELLANT:
William P. Carrell, II
Allen Campbell Ewen
Ewen, Kinney 8v Rosing
1090 Starks Building
455 South Fourth Street
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Chauncey R. Hiestand
500 W. Jefferson Street, Suite 1500
Louisville, KY 40202
Hon. Barry Lee Willett
Judge, Jefferson Circuit Court
Jefferson County Justice Center
700 West Jefferson Street, Suite 601
Louisville, KY 40202
COUNSEL FOR AMICUS CURIAE:
Donald Cameron Walton, III
Walter A. Ward
Ward, Hocker and Thornton, PLLC
The World Trade Center
333 W. Vine Street, Suite 1100
Lexington, KY 40507