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Stuff v. Simmons12/12/2005
tinues that should the psychological exam not be mandated, the trier of fact will be left with an open-ended opinion from Dr. Nukes without the opportunity for Simmons to properly present his defense to the jury. However, Simmons' argument will only encourage a "battle of the experts" with each party presenting its own experts at trial. We have held before that where the evidence is variable as to the nature, extent, and source of the injury, the jury is in the best position to determine the existence and amount of damages. Pendleton v. Aguilar, 827 N.E.2d 614, 625 (Ind. Ct. App. 2005), reh'g denied. Consequently, we find Dr. Nukes' evaluation best left to the province of the jury. Therefore, we conclude that Simmons failed to satisfy the good cause requirement under T.R. 35.
CONCLUSION
Based on the foregoing, we find that the trial court abused its discretion by ordering Kelly to undergo an independent neuropsychological examination pursuant to Indiana Trial Rule 35 when the Stuffs' personal injury claim only alleges general emotional distress normally associated with a physical injury and without asserting any specific mental injury.
Reversed and remanded for further proceedings.
BAKER, J., and MATHIAS, J., concur.
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