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State Ex Rel. Mapes v. District Court10/30/1991
ght compensation. As previously pointed out, plaintiff's motion for a protective order was denied by the District Court.
On December 12, 1990, defendant moved for an order compelling plaintiff to submit to a psychiatric examination by Donald R. Harr, M.D., the director of the South-Central Montana Regional Medical Health Center in Billings, Montana. In its motion, defendant requested that no recording device be permitted during any part of the psychiatric examination, and that the court compel plaintiff to attend the examination without the presence of his attorneys or any other third person.
Dr. Harr filed an affidavit in support of defendant's motion which indicated that his examination would include the administration of a number of tests, including the Plural Test, Minnesota Multi-Phasic Personality Inventory II, Bender-Gestalt, Rorschach Test, and TAT. In addition, it was the doctor's intention to conduct a one-on-one examination during which he would evaluate, not only plaintiff's responses but his behavior and reactions. He expressed concern that plaintiff's responses could be affected by the presence of any observer or recording or listening device.
In opposition to defendant's motion, plaintiff argued that there was not "good cause," as required by Rule 35, M.R.Civ.P., for a psychiatric examination because no psychiatric or psychological damages were being alleged by the plaintiff. Plaintiff pointed out that even though Edward Shubat, Ph.D., was listed as a witness by plaintiff, Dr. Shubat was an expert in neuropsychology and was being called for the purpose of testifying that through testing he had established that plaintiff had sustained organic brain injury due to toxic exposures at the work place. Plaintiff further argued that those cases relied upon by defendant in support of excluding plaintiff's attorney from the psychiatric examination were dissimilar to this case because they all dealt with claims involving insanity, competency, or psychotic problems. Here, plaintiff contended, he alleged only physical injury. However, the District Court granted defendant's motion and ordered that plaintiff submit to a psychiatric examination, including a one-on-one interview with Dr. Harr, outside the presence of plaintiff's attorney and without any recording device.
We address the issues in the order in which they have been raised.
I.
Is this an appropriate case for the exercise of supervisory control by the Supreme Court over the District Court?
"Although interlocutory review of discovery orders is not favored, State ex rel. Guar. Ins. v. District Court (Mont. 1981), [191 Mont. 64,] 634 P.2d 648, 38 St.Rep. 1682, the writ will issue in an appropriate case. See, e.g., State ex rel. Burlington Northern v. District Court (Mont. 1989), [239 Mont. 207], 779 P.2d 885. . . ."
State ex rel. U.S.F. & G. v. District Court (1989), 240 Mont. 5, 783 P.2d 911.
In U.S.F. & G., we granted supervisory control where the district court ordered production of communications which involved the attorney-client privilege. We did so because the discovery of those communications in the context of a bad faith case was an issue of first impression in Montana and because, once disclosed, the defendant's remedy by appeal was inadequate.
Rule 17(a), M.R.App.P., provides that:
"The supreme court is an appellate court but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme
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