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Sexton v. Bates3/23/2001
n, and retains his objection to the choice of Dr. Primm and his "significant economic interest and track record." Neither the motion for protective order, nor the response to this original action, advances any specific facts substantiating that alleged "track record". Further, although the motion asserted Skinner's "confidence" that, if a hearing were held, evidence of Dr. Primm's record would be adduced, that evidence, if any, is absent from the record before us. We also note that at no time did Skinner assert that Dr. Primm is incompetent or unqualified to perform the IME. It is clear to this Court that Skinner's stated objections fall far below the requirement that such objections be based on "valid" or "cogent" reasons, and the trial court erred in failing to consider, or give any weight to, that requirement.
In conclusion, it is the holding of this Court that, while a trial court has the authority under CR 35.01 to appoint a physician to perform an IME, and even to appoint one other than selected by a defendant, it may do so only upon a valid and substantiated objection regarding the physician's qualifications or record, not upon a mere conclusory assertion discrediting the selection. We believe this is a sound principle because it safeguards the purpose embodied in CR 35.01 to provide "a level playing field between the parties. Defendants have no say in determining what physician plaintiff chooses as his or her expert witness." Looney v. National R.R. Passenger Corp., 142 F.R.D. 264, 265 (D. Mass. 1992). In the case of an allegation of bias, the soundness of the foregoing principle is further bolstered by the awareness that the objection goes to the credibility of the doctor and, thus, is a matter more appropriately raised through cross-examination at trial.
Therefore, the respondent trial court is hereby PROHIBITED from enforcing the portion of its order entered October 10, 2000, appointing a physician other than the one selected by Sexton.
BARBER and BUCKINGHAM, Judges, CONCUR.
COMBS, Judge, DISSENTS by separate opinion.
COMBS, Judge, DISSENTING.
I strongly believe that we have made a mistake in intervening and interfering with the discretion of the trial judge. He is supported unequivocally by federal precedent while Kentucky law is wholly silent. I believe that he acted correctly as a matter of law and within his authority as a matter of jurisdiction.
David A. Barber JUDGE, COURT OF APPEALS
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