C.R.C.P. 35

History

Source: Amended October 8, 1992, effective January 1, 1993. Cross references: For protective orders concerning discovery, see C.R.C.P. 26(c); for sanctions for failure to comply with order, see C.R.C.P. 37(b). ANNOTATION I. General Consideration. II. Order. III. Report. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Depositions and Discovery, Rules 26 to 37’’, see 28 Dicta 375 (1951). For article, ‘‘Depositions and Discov- ery: Rules 26-37’’, see 23 Rocky Mt. L. Rev. 562 (1951). For article, ‘‘Plaintiff’s Advanta- geous Use of Discovery, Pre-Trial and Sum- mary Judgment’’, see 40 Den. L. Ctr. J. 192 (1963). C.R.C.P. 26 to 37 must be construed to- gether along with the requirement that the plaintiff establish a prima facie case for punitive damages, as a condition precedent to the plain- tiff’s right to discovery of defendant’s financial information. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Determination of motion lies within the sound discretion of the trial court. In a depen- dency and neglect proceeding, denying interve- nor’s motion for mental examination of the mother when evaluation had been updated six months before the hearing was not an abuse of discretion. People ex rel. A.W.R., 17 P.3d 192 (Colo. App. 2000). There is no absolute quasi-judicial immu- nity for professionals conducting an indepen- dent medical or psychiatric examination pursu- ant to this rule. Dalton v. Miller, 984 P.2d 666 (Colo. App. 1999). However, such professional is entitled to witness immunity where such professional ex- amined a person pursuant to this rule. Dalton v. Miller, 984 P.2d 666 (Colo. App. 1999). Applied in Phillips v. District Court, 194 Colo. 455, 573 P.2d 553 (1978); People v. Elam, 198 Colo. 170, 597 P.2d 571 (1979); People v. Shuldham, 625 P.2d 1018 (Colo. 1981); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Clark v. District Court, 668 P.2d 3 (Colo. 1983). II. ORDER. Law reviews. For note, ‘‘One Y ear Review of Colorado Law — 1964’’, see 42 Den. L. Ctr. J. 140 (1965). For comment on Timpte v. Dis- trict Court appearing below, see 39 U. Colo. L. Rev. 592 (1967). Motion for physical examination is ad- dressed to the sound discretion of the trial court. Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (1974). It is necessary to demonstrate good cause therefor. Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (1974). Rule does not by its terms limit a party to one examination. Hildyard v. Western Fasten- ers, Inc., 33 Colo. App. 396, 522 P.2d 596 (1974). Circumstances held sufficient to justify a second physical examination are: (a) Separate injuries calling for analysis from distinct medi- cal specialties such as ‘‘whip-lash sprain’’ and ‘‘aggravation of preexisting heart condition’’, (b) where the examining physician requires the assistance of other consultants before he can make a diagnosis, or (c) where a substantial time lag occurs between the initial examination and trial. Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (1974). A trial court is authorized to issue an or- der requiring a party to submit to a physical or mental examination upon a showing of good cause and that such order shall specify the conditions of the examination. Hayes v. District Court, 854 P.2d 1240 (Colo. 1993). Court may compel examination in Colo- rado where party has been examined in an- other jurisdiction. Where, on motion to vacate an interlocutory decree of divorce, defendant husband contended that he was insane at the time of the alleged commission of the acts re- lied upon as grounds for divorce, at the time of service of process, and throughout the pendency of the action, the trial court did not err in ruling that it would not receive in evidence deposi- tions concerning husband’s purported insanity by doctors in another state where husband had wilfully absented himself until such time as the husband made himself available for examina- tion within the jurisdiction of Colorado by psy- chiatrists or physicians who might be selected by the wife. Richardson v. Richardson, 124 Colo. 240, 236 P.2d 121 (1951). Defendant has same right as plaintiff to have his own doctor testify. So long as a plain- tiff may select his own doctor to testify as to his physical condition, fundamental fairness dic- tates that a defendant shall have the same right, in the absence of an agreement by the parties as to whom the examining physician will be. Timpte v. District Court, 161 Colo. 309, 421 P.2d 728 (1966). Defendant’s right to select a doctor to tes- tify is 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 examina- tions, including plaintiffs’ attorneys if the court deems it wise; and those setting the time, type, place, scope, and conduct of the examination. Timpte v. District Court, 161 Colo. 309, 421 P.2d 728 (1966); Hayes v. District Court, 854 P.2d 1240 (Colo. 1993). The court may reject a particular physi- cian upon a finding, sustained by a showing of bias and prejudice, and order the defendant to submit the names of other physicians. Timpte v. District Court, 161 Colo. 309, 421 P.2d 728 (1966). The fact that certain doctors testify only for the defense in matters of personal injury does not in itself suggest bias and prejudice which demands disqualification of such a doc- tor; rather, it is a matter relevant only as to weight and credibility, and cross-examination upon this subject affords full protection to the plaintiff’s rights. Timpte v. District Court, 161 Colo. 309, 421 P.2d 728 (1966). In no case, however, may the court select a so-called ‘‘neutral’’ physician. The trial judge may not permit 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. Timpte v. District Court, 161 Colo. 309, 421 P.2d 728 (1966). A trial court has the power to order a psychiatric examination of the parties in a domestic relations case even though not pro- vided for in section (a) of this rule, since where matters such as custody of children are in dis- pute in a divorce or separation action and the mental stability of either or both of the parents is seriously challenged, a psychiatric examina- tion may well provide a key to a wise determi- nation of custody, a determination, the sole aim of which must be the best interests of the chil- dren. Kane v. Kane, 154 Colo. 440, 391 P.2d 361 (1964). Where the record fails to disclose any evi- dence necessitating a forced psychiatric ex- amination of one of the spouses as insisted by the other spouse, there is no abuse of discretion in the trial court’s refusal to so order. Kane v. Kane, 154 Colo. 440, 391 P.2d 361 (1964). Questions concerning the conduct of physical examinations conducted pursuant to section (a) of this rule, including the presence of third parties and tape recorders during such examinations, are to be resolved by the trial court in the exercise of its discretion. Hayes v. District Court, 854 P.2d 1240 (Colo. 1993). The party seeking such protective orders bears the burden of establishing the need for such relief. Hayes v. District Court, 854 P.2d 1240 (Colo. 1993). ‘‘In controversy’’ and ‘‘good cause’’ re- quirements. This rule requires that either the party’s physical or mental condition be ‘‘in con- troversy’’ and that the movant show ‘‘good cause’’ before the court may order that a party submit to a physical or mental examination. Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). Affirmative showing required. The ‘‘in con- troversy’’ and ‘‘good cause’’ requirements of this rule are not met by mere conclusory allega- tions of the pleadings — nor by mere relevance to the case — but require an affirmative show- ing 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. Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). A plaintiff’s general allegations of mental suffering, mental anguish, emotional distress, and the like, do not place his mental condition in controversy under this rule. Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). Trial court did not abuse its discretion in denying defendant’s motion for an independent medical examination where, although the plain- tiff brought a claim for mental distress, his men- tal condition was not in controversy. Further, the court did not err in allowing the plaintiff to testify regarding the embarrassment and humili- ation he suffered as a result of the defendant’s actions in telling others of plaintiff’s sexual orientation. Borquez v. Robert C. Ozer, P .C., 923 P.2d 166 (Colo. App. 1995), aff’d in part and rev’d in part on other grounds, 940 P.2d 371 (Colo. 1997). A plaintiff in a negligence action who as- serts 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. Braxton v. Luff, 38 Colo. App. 451, 558 P.2d 444 (1976). Complaint alleging that injuries suffered in the collision resulted in past and future medical expenses, loss of time from work, pain and suffering, and other impairment was sufficient to place plaintiff’s physical condition in contro- versy and give defendant good cause for an order to submit to a physical examination. Braxton v. Luff, 38 Colo. App. 451, 558 P.2d 444 (1976). The notice provisions of this rule are man- datory and, absent proper notice, the court may refuse to order a physical or a mental examina- tion. Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). Where irregularities in formalities leading to an order did not prejudice plaintiff, the order was properly granted. Braxton v. Luff, 38 Colo. App. 451, 558 P.2d 444 (1976). Dismissal of case with prejudice held jus- tified. Where plaintiff at no time objected to an examination, sought to cancel or change the appointments, or offered any excuse for his fail- ure to keep at least six scheduled appointments, since the claim was based entirely on the per- sonal injuries he allegedly suffered, and since he repeatedly failed to appear for examination without giving any reason therefor, the trial court was justified in dismissing the case with prejudice. Braxton v. Luff, 38 Colo. App. 451, 558 P.2d 444 (1976). Proper case for supreme court’s original jurisdiction. Petitioner’s allegations that re- spondent court exceeded its jurisdiction and abused its discretion by ordering a psychiatric examination in violation of section (a) of this rule presented a proper case for exercise of the supreme court’s original jurisdiction. Post-judg- ment appeal obviously cannot reverse the pos- sible adverse consequences of a pretrial psychi- atric examination of petitioner. Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). The district court abused its discretion in ordering an independent medical examina- tion after the insurance coverage decision at issue had already been made. Schultz v. GEICO Cas. Co., 2018 CO 87, 429 P.3d 844. III. REPORT. This rule does not place upon a party the burden of procuring copies of records of hos- pitals or of office records of physicians. Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967). This rule is limited to medical examina- tions conducted at the request of a party, and the reports, copies of which are subject to pro- duction, are the reports made by the physician as the result of such an examination. Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967). A physician was not required to prepare written reports concerning his treatment of plaintiff where defendant had been furnished, by agreement, the only report prepared by the doctor of a medical examination of plaintiff. Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967).