The underlying civil action was brought by Appellee Gary Afterkirk against Appellant Metropolitan Property
&
Casualty Insurance Company (“MetLife”
1
), After-
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.,
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,
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,
However, this restriction did not mollify all of the rule’s critics. In the seminal case of
Sibbach v. Wilson & Co.,
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
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. (quoting Schlagenhauf v. Holder, supra,
at 119,
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,
Federal trial courts have produced mixed results when deciding whether particular circumstances warrant the presence of a video camera or other recording device in the examination room.
See
8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus
Federal Practice & Procedure: § 2286,
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 particular circumstances presented.”);
compare, e.g., Zabkowicz v. West Bend Co.,
Nevertheless, we are not left completely without direction. Courts have unani
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.g., 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,
Other federal district courts have allowed an audio recorder, stenographer, or video camera in the examination room.
Sidari v. Orleans Cty.,
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); Ill. Stat. ch. 735, § 5/2 — 1003(d) (providing right of attendance by attorney or “other
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.,
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 496-97. 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.g., 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. Co.,
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,
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.
4
Thus, the examining physician will nearly always be hired with an adversarial mindset. In
Tuttle v. Perry,
Ky.,
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 “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
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 mov-ant 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.”
Schlagenhauf, supra,
at 118,
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.,
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.,
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
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 & 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.,
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 ex-aminee 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
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,
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, 6 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, Ap-pellees 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-Cl-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.
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 Appel-lees 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
Appellees also submitted to the Court of Appeals affidavits from the Votaw exami-nee 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 performance by Afterkirk, are for the jury to evaluate.
Norris v. Commonwealth,
Ky.,
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.
Schlagenhauf, supra,
at 112-14,
Finally, we reject Appellant’s suggestion that it is “unfair” to allow Dr. Primm’s examination to be recorded when After-kirk had the opportunity to meet with his own doctor unobserved. While this viewpoint admittedly has been advanced by some federal trial courts,
e.g., Tomlin, supra,
at 633,
Hertenstein v. Kimberly Home Health Care, Inc.,
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,
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 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.,
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,
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.,
[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,
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 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,
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 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.,
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, e.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.
Notes
. 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
.
Sibbach
is famous, of course, for holding that rules regulating "procedure” are valid under the Rules Enabling Act.
. 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.
. 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.
. 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.
. 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.
. 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.
. Of course, this estimate would need to be decreased for any difference in fees between 1991-1992 and 2001.
. MetLife’s brief was filed and oral arguments were conducted before Tuttle was rendered.
. 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.