recognizing the purpose that our rules of civil procedure serve in the truth-ascertaining process that underlies our judicial systemSummary of this case from Greenberg v. Perkins
Decided December 27, 1966.
Original proceeding involving court order requiring both parties to submit a three name list of physicians from whom trial court would select examining physician. Defendants refused to submit a list and sought a writ of prohibition. Rule to show cause issued.
Rule Made Absolute.
1. PRACTICE AND PROCEDURE. — Rules — Truth — Adversary System — Judicial Process. Rules of Civil Procedure were adopted to aid truth-ascertaining process of courts, and not to eliminate the adversary system as the foundation of the American judicial process.
2. DAMAGES. — Doctor — Selection — Physical Condition — Testimony — Plaintiff — Defendant — Absence of Agreement. So long as plaintiff, in personal injury action, may select his own doctor to testify as to his physical condition, fundamental fairness dictates that a defendant should have the same right, in the absence of an agreement by the parties as to who the examining physician will be.
3. Doctors — Selection — Protective Orders — Trial Court. Right of each side in personal injury action to select its own doctor to testify is subject to protective orders by trial court.
4. Physician — Rejection by Court — Order — Submission of Other Names. Upon a finding sustained by a showing of bias and prejudice, trial court may reject a particular physician selected to make a physical examination in a personal injury action and order defendant to submit the names of other physicians.
5. EVIDENCE — Doctors — Testimony — Defense — Disqualification — Relevancy — Weight — Credibility — Cross-examination — Protection. Contention that because certain doctors testify only for the defense in matters of personal injury, that that in itself suggests bias and prejudice and demands disqualification of such doctor to make examination and testify, held, the contention is without merit as such matters are relevant only as to weight and credibility, and cross-examination affords full protection to plaintiff's rights.
Duane O. Littel, Ronald C. Hill, for petitioners.
Frickey Morrissey, for respondents.
In two separate complaints the plaintiffs each claimed damages for personal injuries arising out of separate automobile accidents. The defendants each filed motions in their respective cases under R.C.P. Colo. 35 requesting physical examinations of the plaintiffs, since the physical condition of the plaintiffs was in issue. In each case, the trial judge stated that he would not require the plaintiffs to submit to physical examinations by doctors selected by the defendants, since the plaintiffs had each objected to the defendants' selections. The trial court then went on to say that it would require counsel for each side to submit a list of three names of acceptable physicians. From these six names the trial court proposed to select a physician to perform the examination. The defendants refused to submit a list, and joined in filing a petition seeking a writ of prohibition. We granted a rule to show cause.
We must determine for the first time in Colorado whether under Rule 35, a defendant has the right to designate the examining physicians in the absence of a showing of bias or prejudice on the part of that physician, or whether a trial court may, in its sole discretion, appoint a physician chosen by it. The reported cases are divided with respect to this question, although no case which we have found supports the action which the trial judge took here in permitting the plaintiffs as well as the defendants to submit a list of doctors from which the trial court would select a so-called "neutral" physician.
[1,2] Our Rules of Civil Procedure were adopted to aid the truth-ascertaining process of the courts, but, as yet, it has nowhere been held that the purpose of such rules is to eliminate the adversary system as the foundation of the American judicial process. So long as a plaintiff may select his own doctor to testify as to his physical condition, fundamental fairness dictates that a defendant shall have the same right, in the absence of an agreement by the parties as to who the examining physician will be. See Davis v. S. Klein on the Square, Inc., 35 Misc.2d 981, 231 N.Y.S.2d 460 (Sup.Ct.); Gale v. National Transp. Co., Inc., 7 F.R.D. 237 (S.D.N.Y.); 2A Barron Holtzoff, Federal Practice and Procedure, § 822.
[3,4] This right is, of course, subject to protective orders by the trial court such as, among others; those limiting the number of doctors who may examine; those providing who may be present at the examinations, including plaintiffs' attorneys if the court deems it wise; and those setting the time, type, place, scope and conduct of the examination. Moreover, the court may, upon a finding, sustained by a showing, of bias and prejudice, reject a particular physician and order the defendant to submit the names of other physicians.
It is suggested that certain doctors testify only for the defense in matters of personal injury, and that that in itself suggests bias and prejudice and demands disqualification of such a doctor to make examinations and testify. We do not agree. Such matters are relevant only as to weight and credibility, and cross-examination upon this subject affords full protection to the plaintiff's rights. See Krook v. Blomberg, 95 N.H. 170, 59 A.2d 482.
The order of the court requiring both parties to submit names of physicians from whom the trial court will select the examining physicians is vacated, the rule is made absolute, and the trial court ordered to proceed in a manner not inconsistent with this opinion.