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Vetter v. Twesigye1/20/2005
{ } Plaintiffs-appellants, Christopher F. and Tina N. Vetter, appeal from a judgment sustaining a motion for a protective order and a motion to compel discovery by defendant-appellee, Richard P. Swenson, in this personal injury action arising out of an automobile accident.
{ } The trial court determined that Swenson was the tortfeasor in an auto accident that injured appellants. The parties conducted discovery on the issue of damages, but matters came to a standstill after appellee, pursuant to Civ.R. 35(A), moved to compel appellants to undergo an independent medical examination ("IME") by the physician of appellee's choice. Appellants moved for a Civ.R. 26(C) protective order that would set the manner, conditions, and scope of the IME, proposing:
(1) The defense medical examination will go forward on a date and time convenient to the person to be examined and the doctor;
(2) Plaintiff will be accompanied by his/her attorney or other legal representative as permitted[;]
(3) The examination may be audio taped by Plaintiff's representative;
(4) No other persons other than plaintiff, his/her representative and a same sex staff person will be allowed to be present during the examination;
(5) The examination must be limited to Plaintiff's medical conditions which are claimed by the Plaintiff to be causally or historically related to the incident referenced in Plaintiff's complaint delineated by the moving party in written form, and within the expertise of the physician;
(6) That the Plaintiff not be forced to travel outside the forum to appear for the medical examination without a showing of good cause by the Defendant[;]
(7) The Defendant is required to tender to the Plaintiff reimbursement for travel and expenses for traveling to and from the examination.
{ } In response, appellee moved for a protective order requesting that the court prevent a third party from attending appellants' IME and prevent appellants from making an audiotape or videotape of the examination.
{ } On June 25, 2004, the trial court granted appellee's motion to compel appellants to undergo the IME and overruled appellants' motion for a protective order. The court specifically mentioned appellants' requested conditions for the IME in its outline of the parties' arguments. In disposing of the motions, the court stated:
This action sounding in negligence and personal injury is certainly one whereby the physical condition of a party, namely Plaintiffs, is at issue. Defendant must be afforded the opportunity to subject Plaintiffs to an independent physical examination in order to establish damages. The Court finds no reasonable basis for precluding Defendants from having the opportunity to require Plaintiff to submit to an independent medical examination.
If Plaintiffs feel that Dr. Hauser is not impartial, they are free to obtain the services of another doctor to perform an additional IME. Plaintiffs are also free to impeach Dr. Hauser's credibility they so wish.
{ } Thus, the court ordered appellants to attend an IME at a specific date and time and stated that, if appellants fail to comply, the court would issue sanctions pursuant to Civ.R. 37(B)(2) and/or 41(B)(1).
{ } On July 17, 2004, the court entered a second order, entitled "Decision and Entry Sustaining Defendant's Motion for Protective Order, Filed June 7, 2004; and Decision and Entry Sustaining Defendant's Motion to Compel Discovery, Filed June 7, 2004." In this entry, the trial court stated:
In his Motion for a Protective Order, Swenson argues that any third-party should
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