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Kolter v. Ryan3/11/2005
bstantial miscarriage of justice exception set forth in Bender is not applicable because neither CR 26 nor CR 35.02 was adopted to protect litigants in Kolter's position. In addition, Bender did not involve a CR 35.02 request and the latter is the subject of a clear exception under CR 26.02(4)(b).
As to the merits, CSX argues that Dr. Morrow's report is discoverable under CR 35.02, which makes no exception for non-testifying experts. CSX argues that it is Kolter's motion to compel the production of Dr. Gordon's report, and its receipt by him, that triggered his reciprocal obligation to deliver like reports to it and that the fact that he withdrew Dr. Morrow as a testifying expert is not material to that obligation. CSX further asserts that the raw data generated by Dr. Morrow's examination is also discoverable under CR 35.02 and that Kolter's narrow interpretation of that Rule is without support.
Our Supreme Court has repeatedly stated that writs of prohibition and mandamus are extraordinary remedies that "are reluctantly granted." In a case such as this one where the petitioner argues that the trial court is proceeding within its jurisdiction but erroneously, the petitioner must first satisfy two threshold prerequisites to demonstrate its entitlement to a review of the merits of its claim of error, i.e., that there exists no adequate remedy by appeal or otherwise and that great injustice and irreparable injury would result unless a writ is granted.
We decide initially that, contrary to CSX's argument, Kolter could suffer irreparable harm if the information that he seeks to shield from discovery is ultimately held to be privileged after it has already been produced. In addition, we believe that, since this is a matter of first impression, our consideration of the merits of this original action will assist the orderly administration of justice by providing a construction of the provisions of CR 35.02(1). Therefore, we shall now proceed to decide whether the respondent trial court erred in ordering Kolter to produce to CSX Dr. Morrow's raw test data and report, or her raw test data alone if she did not actually prepare a report.
CR 35.02(1) provides as follows: If requested by the party against whom an order is made under Rule 35.01 or the person examined, the party causing the examination to be made shall deliver to that person or party a copy of a detailed written report of the examining health care expert setting out all findings, including results of all test made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery, the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows an inability to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician or examining health care expert fails or refuses to make a report the court may exclude such testimony if offered at the trial.
First, we do not believe that the fact that CSX had previously announced that it would produce Dr. Gordon's report and raw data somehow excludes this matter from the operation of CR 35.02(1). The Rule provides that it is the request for a report of a medical examination by the party against whom an order was made under Rule 35.01, or the person who was examined, which activates the duty to exchange similar information. Dr. Gordon's examination of Kolter was made pursuant to CR 35.01 and CR 35.02 does no
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