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Hayes v. District Court6/21/1993
k, 100 A.D.2d 963, 475 N.Y.S.2d 102 (N.Y. App. Div. 1984). Similarly, tape recorders can be disruptive, particularly when operated by inexperienced persons, and because tapes can be edited or doctored, a trial court can prescribe appropriate conditions to ensure the integrity of any tape recording of a physical examination. See Vinson, 740 P.2d at 413 (Cal. 1987); Ebel v. Superior Court, 39 Cal. App. 3d 934, 114 Cal. Rptr. 722 (Cal. Ct. App. 1974). See also Zabkowicz v. West Bend Co., 585 F. Supp. 635, 636 (E.D. Wis. 1984); Koch v. Galardi, 11 Pa. D. & C.3d 750, 753 (1979). Resolution of the often competing interests of parties and examining physicians in particular circumstances of particular cases should be made by the trial court. The party seeking protective orders shoulders the burden of establishing the need for such relief. Whanger, 58 Wis. 2d 461, 207 N.W.2d 74, 79.
Having concluded that the questions concerning the conduct of physical examinations conducted pursuant to C.R.C.P. 35(a), including the presence of third parties and tape recorders during such examinations, are to be resolved by the trial court in the exercise of its discretion, we turn to the facts and circumstances of this case to determine whether the trial court abused its discretion in denying the petitioner's request. In her initial motion for protective orders, the petitioner asserted only that Lindenbaum was so biased against her attorney and against personal injury plaintiffs in general that the examination should be conducted by a different physician. On June 4, 1992, the trial court rejected those arguments. The petitioner did not challenge the trial court's June 4, 1992, order by motion for reconsideration or by requesting this court's intervention. Instead, the petitioner unilaterally determined that she was entitled, without benefit of court order, to the presence of a paralegal and a tape recorder at the physical examination. At the hearing on June 5, 1992, the petitioner again argued that Lindenbaum was biased and also asserted that she had an independent right to bring a third party and a tape recorder to any physical examination by a physician selected by ABC. Not until after the trial court denied her request for protective orders did the petitioner, in a motion for reconsideration, suggest that because of her memory loss she would be unable to remember questions and answers arising during the course of the physical examination.
We conclude that in view of the procedural history and all other circumstances of the case the trial court did not abuse its discretion in denying the petitioner's request to be accompanied by a third person and a tape recorder at the physical examination to be performed by Lindenbaum.
III
For the foregoing reasons, we discharge the order to show cause previously issued herein.
Disposition
RULE DISCHARGED
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