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Newton v. Ceasar6/29/2000
We granted a Rule 10, Tenn. R. App. Proc., appeal to review the trial court's action in (1) denying a defendant's motion to have the plaintiff examined by doctors chosen by the defendant, and (2) ordering the plaintiff to undergo an examination, at the defendant's expense, by doctors chosen by the court. We hold that the defendants have the right to have the plaintiff examined by doctors of the defendants' choice absent a valid objection by the plaintiff. Since the record does not contain any evidence supporting a valid objection by the plaintiff, we reverse the lower court's order and remand for further proceedings.
Tenn. R. App. P. 10 Appeal by Permission; Judgment of the Circuit Court Reversed and Remanded
Cantrell, P.J., M.S., delivered the opinion of the court, in which Cain and Cottrell, JJ. joined.
OPINION
I.
Plaintiff, Michelle Newton, sued the defendants, James H. Ceasar and Heilig-Meyers Furniture for personal injuries. The complaint alleged that due to the defendants' negligence Michelle Newton sustained injuries to her neck, back, knees, and flank. The defendants moved under "Rule 34.01", Tenn. R. Civ. Proc., for an examination of the plaintiff by an orthopedic and a neurology specialist of the defendants' choosing. The motion included the allegation that the available specialists in the Lawrenceburg-Columbia area were Ms. Newton's treating physicians. Therefore, the motion sought an order requiring Ms. Newton to submit to an examination by Nashville physicians chosen by the defendant.
After a hearing, the Lawrence County Circuit Court entered an order containing the following provisions:
1. The defendants' request for Dr. Thomas O'Brien to perform an orthopedic medical examination and Dr. Peter Weiss to perform a neurological examination of the plaintiff is denied despite defendants' assertions that they are entitled to present experts of their choosing on a contested issue.
2. Further, it is ORDERED, that the Court, on its own initiative, hereby appoints Dr. Vaughan Allen of Nashville to perform any neurological examination of the plaintiff and Dr. Lee Hunter of Lawrenceburg will perform any orthopedic examination of the plaintiff.
3. Further, it is hereby ORDERED that the defendants shall bear all expenses including costs of the court appointed medical examination, travel and lost wages to the plaintiff due to travel and expenses incurred as a result of submitting to the examination.
The court denied the defendants' application to appeal the court's order under Rule 9, Tenn. R. App. Proc. The defendants then filed an application in this court pursuant to Rule 10, Tenn. R. App. P.
II.
At the outset we note that the motion in the trial court should have been filed under Rule 35.01, Tenn. R. Civ. Proc. The trial court obviously treated it as a Rule 35 motion and we will do the same. Rule 35.01 provides:
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 suitably licensed or certified examiner 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 right under Rule 35.01 to have a party submit to a medical examin
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