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Sprinkle v. Burton12/27/1996
be called to testify, but rather involves only the issue of what Dr. Burton charged Plaintiffs for the taking of his deposition in Missoula, we do not disagree that the district court sitting on a pending lawsuit is the appropriate court to resolve issues arising under Rule 26(b)(4)(C). Had the trial court ruled on Plaintiffs' motions to adjust Dr. Burton's charges during the pendency of their suits, there would be no argument that it was not the proper court to do so. As mentioned above, Dr. Burton concedes that.
However, as is also pointed out above, the District Court did not rule on Plaintiffs' Rule 26(b)(4)(C) motions during the pendency of the underlying litigation, but, rather, left those motions unresolved at the time it dismissed the lawsuits with prejudice. Whatever power a trial court might have under this rule during the pendency of a lawsuit, we are not cited to any authority nor are we persuaded that Rule 26(b)(4)(C) is properly read to designate venue for an independent cause of action involving an issue of the propriety or amount of an expert witness' deposition charges in litigation that is no longer pending. Furthermore, we decline to read into the rule any such a requirement. Section 1-2-101, MCA.
Next, Plaintiffs argue that venue is proper in Cascade County because Dr. Burton as a Rule 35 examining physician is an "officer of the court." In support of this argument Plaintiffs cite several federal cases which have stated in dicta that a physician conducting a Rule 35 examination is an "officer of the court." Because of this status as an officer of the court, Plaintiffs contend that Dr. Burton was subject to the court's power to control the conduct of ". . . its ministerial officers and of all other persons in any manner connected with a judicial proceeding before it in every other matter appertaining thereto," § 3-1-111(5), MCA, and regardless of the pendency of any particular action, § 3-1-113, MCA.
As Plaintiffs point out, various courts have, either equivocally or unequivocally, referred to Rule 35 examining physicians as "officers of the court." For example, in Salvatore v. American Cyanamid Co. (D.R.I. 1982), 94 F.R.D. 156, one of the cases relied upon by Plaintiffs, the court held that where the defendant had the plaintiff examined by a physician pursuant to Rule 35, Fed.R.Civ.P., but then decided not to call the physician as a witness, the court could require the examining physician, nonetheless, to provide plaintiff with a written report of his examination. In wrestling with the question of the court's authority under Rule 35, Fed.R.Civ.P., it stated, " nlike plaintiff's own doctors, Dr. Schaumburg is, in some sense, `an `officer of the court' performing a non-adversary duty.'" Salvatore, 94 F.R.D. at 158. (Emphasis added.)
To the same effect is Warrick v. Brode (D.Del. 1969), 46 F.R.D. 427, cited as authority in Salvatore. In Warrick, the court held that plaintiff was not entitled to have her attorney present during a Rule 35 examination, although she could have her own physician present. Again, the court stated, " he examining doctor is, in effect, an `officer of the court' performing a non-adversary duty." Warrick, 46 F.R.D. at 428. (Emphasis added.)
Similarly, in Pitcairn v. Perry (8th Cir. 1941), 122 F.2d 881, the court, in dicta, stated, " t has been held that a physician making an examination pursuant to an order of the court becomes an officer of the court and he is available to either party as a witness." Pitcairn, 122 F.2d at 886.
Likewise, in The Italia (E.D.N.Y. 1939), 27 F. Supp. 785, also relied upon by Plaintiffs, the court ruled that a defendant requesting a Rule 3
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