Bruckner, William H.

English

University of Tulsa College of Law

Tulsa Law Review Volume 1 Issue 2 1964 Practice and Procedure: Submission of a Plaintiff to Physical Examination by Order of Trial Court William H. Bruckner Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation William H. Bruckner, Practice and Procedure: Submission of a Plaintiff to Physical Examination by Order of Trial Court, 1 Tulsa L. J. 195 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol1/iss2/10 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. NOTES AND COMMENTSIn People v. Whitlock" the court said that before the evidenceof trailing by a bloodhound could be introduced, there must be atestimonial sponsor to lay a proper foundation for its introduction.It must be shown that the dog was trained and tested in the track-ing of human beings, by experience had been found reliable insuch cases, and that the dog was laid on the trail, whether visibleor invisible, at a point where the circumstances clearly showed theguilty party had been. The reliability of the dog must be provedby persons having personal knowledge of his tracking ability andmay be strengthened by proof of pedigree, purity of blood, orthe exalted standing of his breed and performance.2 0In Buck v. State2 ' the Oklahoma Court adopted the aboveprecautionary methods of admitting the evidence and went furtherby saying that before introduction of evidence of trailing is heard,the trial court should hear testimony of witnesses out of the pres-ence of the jury, as to blood, training and experience and determineas a matter of law whether it is such as to permit the introductionof the evidence to the jury.Courts adhering to the view that bloodhound evidence is ad-missible concede that such evidence is to be accepted with cautionand is not, under any circumstance, to be regarded as conclusiveevidence of guilt.22 It is generally held that this class of evidenceis cumulative or corroborative only and not sufficient by itself tosupport a conviction.2 3 Those jurisdictions where such evidence isexcluded altogether, statements are frequently found that blood-hound evidence is of little probative value and is not looked uponwith favor.24The use of bloodhound or police dog evidence would be moreprobative and occupy a more useful function in criminal courts ifit were limited to cases where the criminal had, as Wigmore sug-gests, left behind some identifying object. Where the courts departfrom this and allow police dogs to indiscriminately select defend-ants by sniffing microscopic particles of effluvia, the evidencecomes very near to passing justice Douglas' "Puke Test."Don E. CummingsPRACTICE AND PROCEDURE: SUBivIISSION OF A PLAINTIFFTO PHYSICAL EXAMINATION BY ORDER OF TRIAL COURTIn late 1962, the Supreme Court of Oklahoma overruled morethan a half century of prior decisions upon the question of whether39 People v. Vhitlock, 183 App.Div. 482, 171 N.Y.S. 109 (Sup.Ct. 1918).20 Ibid.21 Buck v. State, 77 Okla. Grim. 17, 138 P.2d 115 (1943).22 State v. Fixley, 118 Kan. 1, 233 Pac. 796 (1925).23 Meyers v. Commonwealth, 194 Ky. 523, 240 S.W. 71 (1922).2 4 Hayes v. Commonwealth, 211 Ky. 716, 277 S.W. 1004 (1925); Fisherv. State, 150 Miss. 206, 116 So. 746 (1928).1964.11Bruckner: Practice and Procedure: Submission of a Plaintiff to Physical ExaPublished by TU Law Digital Commons, 1964TULSA LAW JOURNALa trial court can order a plaintiff, in an action for personal injuriesto submit to a physical examination. In Witte v. Fullerton, 876 P.2d244 (Okla. 1962), the Oklahoma court held that upon a timelyrequest from the defendant, the trial court had the discretionarypower to require the plaintiff to submit to a physical examination.Thus, Oklahoma adopted the rule of most jurisdictions.'Prior to the Fullerton decision, the Oklahoma courts had fol-lowed the rule established in 1903 in City of Kingfisher v. Altizer,2that held that the courts of this state could not require a plaintiffto submit to a medical examination either before or during thetrial. This view stemmed from a Supreme Court decision in UnionPac. Ry. v. Botsford.3In Botsford, the Court held that a federal court could notorder the physical examination of a party in the absence of anystatutory authority. The reasoning of the majority stressed the basicidea of the sanctity of the person. Justice Gray, writing for themajority, said: "No right is held more sacred or is more carefullyguarded, by the common law, than the right of every individualto the possession and control of his own person, free from all re-straint or interference of others . . .4After the Botsford and Altizer decisions, the Oklahoma courtscontinued to adhere strictly to the rule established in those cases;5even though many jurisdictions began to adopt the opposite of thedecision of the Botsford case by statute," or by the decisions oftheir highest courts.7 They made only one exception to this rule.In the case of Jewel Tea Co. v. Ransdell,8 the court held that if aplaintiff offers his body into evidence,, then he may not thereafterdecline to submit to a physical examination.018 WimorE, EVIDExcE § 2220 (McNaughton Rev. 1961); See Annot.,51 A.L.R. 183 (1927); supplemented by 108 A.L.R. 142 (1937).213 Okla. 121, 74 Pac. 107 (1903).3141 U.S. 250 (1891).41d. at 251.5 Oklahoma By. v. Thomas, 63 Okla. 219, 164 Pac. 120 (1917); Atchi-son T. & S.F. By. v. Melson, 40 Okla. 1, 134 Fac. 388 (1913).6Eg., Amuz. REv. CoDE ANN. § 4468 (Struckmeyer, 1928); FLA. CoUP.GEN. LAws § 7054 (1927); N. J. REv. STAT. § 2.99-1 (1937); WASH. REV.STAT. ANN. §§ 1230-1231 (Remington, 1932).7 Jolmston v. Southern Pac. Co., 150 Cal. 535, 89 Pac. 348 (1907);Brown v. Hotzler Bros. Co., 152 Md. 39, 136 AUt. 30 (1927); S.S. Kresge Co.v. Trester, 123 Ohio St. 383, 175 N.E. 611 (1931); Carnine v. Tibbetts,158 Ore. 21, 74 P.2d 974 (1937).8 180 Okla. 203, 69 P.2d 69 (1937).9Id. at 205, 69 P.2d at 71 the court stated: "While the courts are indisagreement as to the authority to require a plaintiff to submit to an exam-ination in the first instance, they are in practical unanimity with respect tothe rule to be followed when the plaintiff has offered a portion of his bodyin evidence, and hold that the same then becomes an exhibit in the case,and that within reasonable limitations the opposite party has the right tomake such inspection of it as will enable him to explain, criticize or impeachits value as evidence and to that end, have it examined by experts."[Vol. 1, No. 22Tulsa Law Review, Vol. 1 [1964], Iss. 2, Art. 10https://digitalcommons.law.utulsa.edu/tlr/vol1/iss2/10NOTES AND COMMENTSThe adoption of Federal Rule 85 (a) in 1938,10 and the de-cision upholding its constitutionality," seemed to cause the courtto adopt a new course. In subsequent cases, where a defendantsought a physical examination of the plaintiff the court either af-firmed, without discussion, citing Altizer and similar cases,12 orthe court evaded the question by stating that the request of thedefendant had come too late in the proceedings. 13In 1960, in Transport Ins. Co. v. McAlister,14 the court ap-proached the problem from the position that the court had no in-herent power to order a plaintiff to submit to a physical examina-tion. The court said that this problem was one to be resolved bythe Oklahoma legislature rather than by the courts.Justice Jackson, in a concurring opinion, gave a clear indica-tion of what the law would eventually be in Oklahoma. He agreedwith the majority rule on the question, and added that the mainreason for the minority rule had almost completely disappearedover the years.'5 Justice Jackson also stated that in the future thecourt should apply the majority rule in similar cases.16Two years later the court was confronted with the same prob-lem in the Fullerton case. The defendant in this action was deniedhis request that the trial court require plaintiff to submit to aphysical examination by a physician to be selected by the court.The defendant based his appeal on the argument that without suchexamination he could not determine the true nature and extent ofplaintiff's injuries.The author of the opinion, Chief Justice Williams, cited themajority rule and agreed that it was the better view. The courtwithdrew the language in the McAlister case, that a changing ofthe rule presents a legislative and not a judicial question, andspecifically overruled the Altizer case.But the court refused to reverse the trial court in this casefor two reasons. First, the court felt the McAlister case did notgive sufficient warning to the attorneys and judges of this statethat a change of holding by the court would occur in the near10 FEn. R. Civ. P.35(a), which provides: "In an action in which themental or physical condition of a party is irt controversy, the court in whichthe action is pending may order him to submit to a physical or mental ex-amination by a physiican ......". Sibbach v. Wilson & Co., 312 U.S. 1 (1941).12 Law v. Corsin, 206 Okla. 151, 244 P.2d 831 (1952).13Oklahoma Transp. Co. v. Stine, 280 P.2d 1020 (Okla. 1955); PhillipsPetroleum Co. v. Myers, 202 Okla. 151, 210 P.2d 944 (1949). In this latercase, justice Gibson, in a dissent, spoke in favor of the adoption of themajority rule.14 355 P.2d 576 (Okla. 1960).15 Id. at 582.16 Id. at 583.17Witte v. Fullerton, 376 P.2d 244, 248 (Okla. 1962).196433Bruckner: Practice and Procedure: Submission of a Plaintiff to Physical ExaPublished by TU Law Digital Commons, 1964TULSA LAW JOURNALfature; and secondly, that the trial court should not be reversedfor merely relying upon former decisions of this court.18The shortcoming of the Fullerton case is not that the courtfailed to reverse the trial court, but that the court missed an ex-cellent opportunity to establish some guide lines within which thetrial courts should exercise their discretion. In practically everyjurisdiction which has adopted the majority rule two main prob-lems have had to be resolved. First, what constitutes a timely re-quest by the defendant for a physical examination? Secondly, maythe defendant designate the particular physician to examine theplaintiff?Had the court reversed the trial court in the Fullerton case,it would have had to rule on the question of whether the requestof the defendant was timely. The request in the Fullerton casewas tendered to the trial court two weeks before the scheduledtrial. This gave the court an excellent fact situation in respect tothe question of what constitutes a timely request.Prior to the Fullerton case, the court held in Phillips PetroleumCompany v. Myers"9 and in Oklahoma Transportation Company v.Stine.20 that defendant's request for a physical examination of theplaintiff was tendered too late in the proceedings.In the Myers case, defendant made his request after the com-mencement of the trial and the court, in affirming the overrulingof the request, 9tated "if such an application, as here, is made aftercommencement of the trial, the burden of showing a good excusefor the delay rests upon the applicant and the application willrarely be approved when made after the commencement of thetrial."21In the Stine case, the court considered an identical situationas the Myers case, but held the request untimely upon differentgrounds. In this case, the last pleading had been filed two yearsbefore the commencement of the trial and the court felt that thedefendant had ample time to request a physical examination of theplaintiff.22From the Myers and Stine cases, it can be concluded that anydefendant, requesting a physical examination of the plaintiff afterthe commencement of the trial, will have to show extremely ggodcause in order to overcome the untimely nature of his request.Since Fullerton, another case has been decided in Oklahomain which the question of timeliness of request was indirectly re-18 Ibid. Chief Justice Williams said: "While we agree with the majorityview in principle, we determine that the judgment of the trial court involvedin this appeal should not be reversed because of such courts failure tofollow such view. In so doing the trial court merely relied upon the formerdecisions of this court and such action by the trial court is affirmed."19 202 Okla. 151, 210 P.2d 944 (1949).20 280 P,2d 1020 (Okla. 1955).21202 Okla. at 154, 210 P.2d at 949.22 280 P.2d at 1024.[Vol. 1, No. 24Tulsa Law Review, Vol. 1 [1964], Iss. 2, Art. 10https://digitalcommons.law.utulsa.edu/tlr/vol1/iss2/10NOTES AND COMMENTSferred to by the court. In Ellsworth v. Brown,23 the court wasconfronted with the problem of a trial court's granting defendant'srequest for a physical examination prior to the Fullerton decision.In Ellsworth, the request of the defendant was tendered atthe pre-trial conference. The trial court granted this request andthe supreme court, in deciding the appeal, did nothing more thannote that the request was tendered at the pre-trial conference. 24The court had an excellent opportunity to avoid the major issueraised on appeal by stating that the defendant's request cametoo late in the proceedings. The fact that the court did not do thismight indirectly infer that a request for a physical examination,tendered at the pre-trial conference, is not untimely in the pro-ceedings. But, the only conclusion that can be drawn from Fuller-ton and Ellsworth, is that timeliness is still a question to be resolvedin future decisions.In Fullerton, the defendant called upon the trial court todesignate a physician to examine the plaintiff. On appeal, thecourt did not comment as to how a physician should be selected.May a defendant, in his motion, designate a physician to performthe examination? This question will certainly be raised in Oklahomain the future as there is a diversity of views upon it.The prevailing view, if there is one, is that the party whomoves for the physical examination has no absolute right to thechoice of physician; but, in lieu of an objection, the court will ap-point the physician suggested by the moving party.25 The basisof this principal is that the physician, by the very nature of hisprofession, will make a fair and impartial examination, regardlessof which party requests the examination.But, in a recent North Carolina case, the court stressed thatthe trial court should not name a physician suggested by eitherparty, but should make an independent choice.26 The court reason-oned that by this procedure it would avoid the appearance offavoritism to either party.Not only will the Oklahoma courts have to decide how to se-lect a physician to perform a physical examination, but they mayhave to decide whether one or more physicians may perform theexamination.27 Clearly, this is the age of specialization in medicineand seldom do serious injuries result to a person that do not requireconsultation and treatment by more than one specialist. At thetrial, plaintiff quite naturally brings forth all the specialists thathave examined and treated him. Should a defendant be burdened23 387 P.2d 634 (Okla. 1963).24 Id. at 636.25The Italia, 27 F.Supp. 785, 786 (E.D.N.Y. 1939).2 6 Helton v. J. P. Stevens Co., 254 N.C. 321, 118 S.E.2d 791 (1961).27 Red Top Cab & Baggage Co. v. Grady, 90 So.2d 871 (Fla.App. 1958).The defendant requested that an examination be performed by an ortho-pedist and a neurosurgeon, but the court held that it would be an abuseof discretion to permit both to examine the plaintiff.196435Bruckner: Practice and Procedure: Submission of a Plaintiff to Physical ExaPublished by TU Law Digital Commons, 1964TULSA LAW JOURNALand handicapped by being allowed to have only one physician ex-amine the plaintiff?The problem of the selection of a physician was partiallyresolved in Ellsworth v. Brown, where the court commented atgreat length upon the selection of a physician. The defendant re-quested that he be permitted to name the physician to conductthe examination. 28 After apparent spirited discussion, the trial courtdecided to submit a list of five physicians to both parties. Later,when the parties failed to agree upon a physician, the court ap-pointed a physician to conduct the examination." On appeal, thecourt gave tacit approval to this method of selecting a physician. 0Thus, the court established one guide line for trial courts to followin the future.However, there are two facets of this case that lessen thecourt's statements, regarding the selection of a physician. First,the major issue, on appeal, was whether the trial court's grantingof a physical examination materially affected the substantial rightsof the plaintiff. The method of selection of the physician was notdirectly involved.31Secondly, the plaintiff chose to exhibit his injury from thewitness stand; thus, the rule of the Ransdell case was applicableand the court felt that it was not important that the physician waschosen to examine the plaintiff before he exhibited his injuries 2Therefore, this act of the plaintiff, coupled with the major issue ofthe appeal, tempers the courts language regarding the selectionof the physician.Ellsworth, like Fullerton, has its incomplete aspect. The courtagain became too preoccupied with the overruling and the ex-plaining of previous decisions83 and therefore, missed an oppor-tunity to comment on the major questions involved in a defendant'srequest for a physical examination. But, it is encouraging to notethat the court did take the opportunity to comment upon theselection of the physician. Perhaps, these comments were an indi-cation that the court intends to resolve the question of timelinessand selection of a physician in the near future.William H. Bruckner28387 P.2d at 636.29 Ibid.80 I. at 638.a' Id. at 635.32 Id. at 637.83 Id. at 635-636.[Vol. 1, No. 26Tulsa Law Review, Vol. 1 [1964], Iss. 2, Art. 10https://digitalcommons.law.utulsa.edu/tlr/vol1/iss2/10

Practice and Procedure: Submission of a Plaintiff to Physical Examination by Order of Trial Court

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Practice and Procedure: Submission of a Plaintiff to Physical Examination by Order of Trial Court

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