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Kolter v. Ryan3/11/2005
t require that a request for a report of that examination be made by specifically invoking CR 35.02. Clearly, by choosing to compel the production of Dr. Gordon's IME report and by receiving it, Kolter triggered his CR 35.02(1) reciprocal obligation to produce reports of the same condition generated by physicians who examined him at his own request, "and he should not thus be heard to complain of its operative effect."
We also believe that Kolter's work product argument may have had merit if Dr. Morrow had not physically examined Kolter and had merely submitted an advisory opinion. However, Dr. Morrow did physically examine Kolter and, as a consequence, the report of her examination becomes discoverable under CR 35.02(1). And, that is true regardless of the fact that Kolter will not call her as a trial witness as the Rule makes no exception for non-testifying experts. We note that CR 26.02 (4)(b) expressly includes a CR 35.02 exemption, which would become meaningless were we to take Kolter's argument to its logical conclusion. In fact, as noted by CSX, language articulated in Morrow fully supports the determination that we have made. We believe that such interpretation of CR 35.02(1) is reasonable because it is consistent with the purpose assigned to CR 35.01 to maintain a level playing field between the parties. As opined by the California court in Queen of Angels Hospital
To conclude otherwise would permit [plaintiff] to arrange unlimited medical examinations and reports and suppress those he might think unfavorable merely by characterizing the doctors who prepared them as advisers to counsel and promising not to call them as witnesses.
Therefore, we conclude that CSX is entitled to discover Dr. Morrow's report of Kolter's examination, if she prepared one.
However, we are of the further opinion that a plain reading of CR 35.02(1) leads to the interpretation that CSX is not also entitled to the raw test data collected by Dr. Morrow even if she did not prepare a report. Pursuant to the Rule, upon Kolter's request, CSX was required to provide "a detailed written report of the examining health care expert setting out all findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition." After delivery, pursuant to that Rule, Kolter was then required to produce a "like report of any examination, previously or thereafter made, of the same condition...." We construe this language to mean that detailed written reports must be exchanged by the litigants but not that other separate documents also prepared by the examining physician, whatever the documents may be, must also be produced to the opposing party. This narrow construction of the extent of discovery allowed by CR 35.02(1) is warranted because this Rule carves out an exception to the otherwise strictly enforced provisions of CR 26.02(4)(b) as they apply to "facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial...." We are cited to no authority to the contrary.
Therefore, it is ORDERED that this petition be GRANTED IN PART. The respondent trial court is hereby DIRECTED to amend its orders entered November 18, 2004, and December 3, 2004, by granting a protective order to Kolter against the production of Dr. Morrow's raw test data from the neuropsychological tests that she administered to him. However, if Dr. Morrow prepared a report, Kolter must produce it to CSX.
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