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Sexton v. Bates3/23/2001
2:00 p.m.
TO BE PUBLISHED
ORIGINAL ACTION REGARDING GRANT CIRCUIT COURT
OPINION AND ORDER GRANTING CR 76.36 RELIEF
Petitioner, Richard S. Sexton (Sexton) has filed a petition for writ of prohibition. The real party in interest, Gary W. Skinner (Skinner) has filed a motion for additional time in which to respond to the petition. It is ORDERED that the motion be GRANTED. The tendered response is ORDERED FILED. The petition is hereby GRANTED.
Sexton asks this Court to prohibit the respondent trial court from requiring him to use a physician of the court's choosing to perform an independent medical examination (IME) of Skinner pursuant to Kentucky Rule Of Civil Procedure (CR) 35.01. Sexton contends that, in so ordering, the respondent has either acted without jurisdiction or has acted in error, and there is no adequate remedy by appeal.
Sexton is the defendant to an automobile negligence action filed by Skinner. Following Skinner's deposition and a review of his medical records, Sexton noticed Skinner to present himself for an IME at a certain date, to be performed by Dr. Daniel D. Primm, Jr., an orthopedist from Lexington, Kentucky. Skinner filed a motion for a protective order, arguing that Sexton had failed to show good cause for an IME. Skinner also argued that Primm is a well-known "defense doctor", thus has "large economic incentive to ensure that his opinions are conservative", and that the examination was an attempt by Sexton "to manufacture favorable testimony".
Sexton responded that good cause was demonstrated by the pleadings where Skinner has placed his physical condition in controversy and is seeking damages. Further, he noted that Skinner is not challenging Primm's credentials or competency, only his being a "defense doctor", a matter he could raise at trial on cross-examination.
The trial court entered an order on October 10, 2000, directing that the IME be conducted. Without making specific findings, the court stated that it had found good cause for the IME and ordered that Skinner be examined by "any practicing physician at the Lexington Orthopedic Associates, PSC, . . . ." The trial court noted that it had chosen those physicians on its own accord and over Sexton's objection. The order further provided that the IME would be at Sexton's expense.
Sexton moved for reconsideration, citing a number of federal decisions that stand for the principle that a plaintiff is required to have a valid objection to overcome a defendant's choice of a physician to perform an IME. However, the trial court reached the same conclusion on reconsideration. The court supported its ruling by citing to 6 Bertelsmann & Philipps, Kentucky Practice, Rules of Civil Procedure Annotated, 4th Edition, and the authors' comment to CR 35.01 [itself referring to Wright & Miller, Federal Practice and Procedure: Civil § § 2234 and 2239] to wit:
moving party has no absolute right to the choice of a physician. . . . Although the practice generally followed is not to object to the physician selected by the moving party, the Rule does not so require.
In this original action, Sexton again relies on the same federal cases on which he relied below and renews the argument that a valid objection, not merely a general allegation of bias or prejudice, must be made in order to deprive a defendant of his choice of a doctor to perform an IME. Further, Sexton claims the respondent's decision violates his right to due process in that the court is choosing who will examine plaintiff for the defense, while plaintiff has no similar restrictions. In addition, he will have to pay for an expert he di
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