 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Sprinkle v. Burton12/27/1996
5 examination order had no absolute right to choose the physician to conduct the examination. The court stated that the choice of examiners, though generally best left to the defendant so as to allow the defendant to develop its evidence, was ultimately within the discretion of the court. Where plaintiff strenuously objected to the defendant's choice, the court ruled that the parties should either select an alternate physician or leave the task of choosing a physician to the court. Italia, 27 F. Supp. at 786-87. In that context the court quoted with approval an advisory comment to the Rule that "the examining physician . . . becomes essentially an officer of the court ordering the examination." Italia, 27 F. Supp. at 786.
Finally, while neither party cited the case in their appellate briefs, the notion that a Rule 35 examining physician is an officer of the court has been previously referred to by this Court. In Mohr v. District Court of Fourth Jud. Dist. (1983), 202 Mont. 423, 660 P.2d 88, we held that while a party's attorney had the right to be present while the examining physician is taking the client's history, the attorney had no right to be present during the physical examination itself. Mohr, 660 P.2d at 89. In ruling that an attorney's presence adds nothing to the examination, we cited with approval the court's statement in Dziwanoski v. Ocean Carriers Corporation (D.Md. 1960), 26 F.R.D. 595, that a Rule 35 examining physician is an officer of the court. Mohr, 660 P.2d at 89.
As to the rule itself, Rule 35, M.R.Civ.P., provides a procedure by which a party can obtain a physical or mental examination of another party in connection with litigation where the other party's physical or mental condition is at issue. The rule contemplates that the examination may be obtained either by order of the court on showing of good cause and upon notice, Rule 35(a), or by agreement of the parties, Rule 35(b)(3). In this case, Dr. Burton was retained by BN to examine Plaintiffs with the agreement of counsel.
In this regard, we note that, while the cases appear to deem a Rule 35 examining physician to be an officer of the court, the rule, by its terms, does not confer any special or particular status on the examiner regardless of the manner in which the examiner comes to examine a party.
Notwithstanding, assuming for purposes of this opinion that a Rule 35 examining physician is an "officer of the court," we are not persuaded that § 3-1-111(5), MCA, is applicable on the facts presented here. Under this statute, the court has the power to control its "ministerial officers" and "persons in any manner connected with a judicial proceeding before it."
As to the first provision of this statute, even if Dr. Burton is an "officer of the court" it does not follow that he is thereby a ministerial officer for purposes of § 3-1-111(5), MCA. While the Montana code does not define the term "ministerial officer," Black's Law Dictionary 996 (6th ed. 1990), defines such a person as
ne whose duties are purely ministerial, as distinguished from executive, legislative, or judicial functions, requiring obedience to the mandates of superiors and not involving the exercise of judgment or discretion.
Moreover, this Court has defined a ministerial act as one performed in obedience to a mandate of legal authority, without regard to the exercise of judgment, and we have indicated that ministerial officers are those called upon to perform ministerial acts. See, State v. District Court (1990), 246 Mont. 225, 229, 805 P.2d 1272, 1275.
Clearly, under these definitions, a Rule 35 examining physician is not a ministerial officer. While s
Page 1 2 3 4 5 6 7 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|