Lindell v. Kalugin ( 2013 )

338 March 7, 2013 No. 13
IN THE SUPREME COURT OF THE
STATE OF OREGON
Paul G. LINDELL, Jr.,
Plaintiff-Relator,
v.
Alex KALUGIN,
Defendant,
and
COUNTRYSIDE CONSTRUCTION, INC.,
an Oregon corporation,
Defendant-Adverse Party.
(CC CV10040946; SC S059437)
En Banc
Original proceeding in mandamus.*
Argued and submitted April 30, 2012; resubmitted
January 7, 2013.
Helen C. Tompkins, Lake Oswego, argued the cause and
filed the brief for plaintiff-relator.
Michael A. Lehner, Lehner & Rodrigues, P.C., Portland,
argued the cause and filed the brief for defendant-adverse
party.
Kathryn H. Clarke, Portland, argued the cause and filed
the brief for amicus curiae Oregon Trial Lawyers Association.
Lindsey H. Hughes, Keating Jones Hughes, P.C.,
Portland, filed the brief for amicus curiae Oregon Association
of Defense Counsel.
LANDAU, J.
The alternative writ of mandamus is dismissed.
______________
* On petition for writ of mandamus from an order of Clackamas County
Circuit Court, Roderick A. Boutin, Judge pro tempore.
Cite as 353 Or 338 (2013) 339
Plaintiff filed a personal-injury action against defendants, and defendants
then moved for a defense medical examination pursuant to ORCP 44 A. Plaintiff
requested of the trial court that he be allowed to be accompanied by a friend, family
member, or counsel during the examination. The trial court refused his request.
Plaintiff then petitioned for an alternative writ of mandamus, which this court
granted, directing the trial court to permit plaintiff to bring counsel to the exam or
show cause for not doing so. Held: The burden rests with the examinee requesting
conditions to establish that the requested conditions are supported by good cause.
The trial court did not abuse its discretion in interpreting and applying ORCP 44
A so as to refuse plaintiff ’s request.
The alternative writ of mandamus is dismissed.
340 Lindell v. Kalugin
LANDAU, J.
In this personal injury action, defendant Kalugin
moved for a defense medical examination pursuant to ORCP
44 A. Plaintiff Lindell objected on the ground that he would
not submit to such an examination without being allowed
to bring a friend, family member, or counsel with him. The
trial court declined to impose the discovery condition that
Lindell requested. Lindell then petitioned this court for a
writ of mandamus compelling the trial court to permit the
examination only on condition that he be allowed to bring
with him a friend, family member, or counsel. This court
issued an alternative writ directing the trial court to permit
Lindell to have legal counsel present as an observer at the
examination or, in the alternative, to show cause for not
doing so. In a letter opinion, the trial court respectfully
informed this court that it would not modify its order and
explained its reasoning for that conclusion. In response,
Lindell now requests that this court enter a peremptory writ
of mandamus requiring the trial court to allow a third-party
observer. For the reasons that follow, we decline Lindell’s
request for a peremptory writ and dismiss the alternative
writ of mandamus.
I. FACTS
A.  Before the Trial Court
The relevant facts are not in dispute. Lindell was
injured when the vehicle that he had been driving was rear
ended by a vehicle that Kalugin drove. Lindell initiated a
personal injury action against Kalugin and his employer,
Countryside Construction, Inc., owner of the vehicle that
Kalugin was driving at the time of the accident. Lindell
alleged that, as a result of the collision, he now suffers
from amnesia, headaches, post-traumatic stress disorder,
tinnitus, and an inability to focus on or track conversations.
During the pretrial discovery phase, Countryside
arranged two defense medical examinations of Lindell,
including a neuropsychological examination by Dr. Donna
Wicher. Lindell asked that certain conditions be imposed on
the conduct of the examination. One condition was:
Cite as 353 Or 338 (2013) 341
“Paul Lindell is permitted to have a friend or family
member present at the exam as an observer, so long as
this person does not interfere with the examination. This
observer will unobtrusively make an audio tape recording of
the exam; plaintiff ’s counsel shall provide defense counsel
with a copy of the recording upon request.”
Countryside discussed the proposed condition with Dr.
Wicher, who told Countryside that a neuropsychological
evaluation “could not be performed under the condition[]
suggested.”
Because Lindell would not submit to the
examination without the above-stated condition,
Countryside moved to compel the examination pursuant to
ORCP 44 A, which, as we describe in detail below, provides
that a trial court may order a party to submit to a physical
or mental examination when that party’s physical or mental
condition is in controversy. In response to the motion to
compel, Lindell explained that he did not oppose submitting
to the neuropsychological evaluation, so long as certain
conditions were imposed. Specifically, Lindell asked the
court to “include the unobtrusive presence of an observer,
and a tape recording” as conditions of the examination.
Lindell asserted that “[t]his is not only generally a good
idea in order to provide independent documentation of what
occurred during the examination but is essential in this
case because of the nature of plaintiff ’s head injury and his
vulnerability.” Furthermore, he added, he
“has a constitutional right to counsel in this case arising
from the U.S. Constitution and the Oregon Constitution.
Art. I Section 10, Or. Constitution. [sic] That right requires
that he be allowed to have an attorney or designee present
as an observer and to make an audio or video (and audio)
recording.”
Attached as an exhibit to his response, Lindell
provided a draft order that set out his proposed conditions
of the medical examination. Those conditions included:
“6.  Paul Lindell is permitted to have * * * legal counsel
or a friend or family member present at the exam as an
342 Lindell v. Kalugin
observer, so long as this person is unobtrusive and does not
interfere with the examination.
“7.  The observer may unobtrusively make an audio
and/or video recording of the exam; plaintiff ’s counsel shall
provide defense counsel with a copy of the recording upon
request.”
Countryside opposed the imposition of the
requested conditions. It submitted to the court a letter from
Dr. Laurence M. Binder, a clinical professor of neurology and
psychiatry at Oregon Health and Science University and
one of plaintiff ’s own consulting doctors, who summarized
his personal views and the views of the National Academy
of Neuropsychology and the American Academy of Clinical
Neuropsychology on the subject of allowing observers or
audiotaping of independent examinations. In brief, Binder
explained that “[o]ur profession strongly opposes observation
by third parties or audiotaping of exams because of two
concerns.” First, he explained that third-party observation
or audiorecording “is incompatible with maintenance of
test security.” According to Binder, the validity of many
neuropsychological tests depends on the examinee not being
familiar with them and thus not being able to prepare for
them. Second, he explained that the presence of observers or
audiorecording affects test performance. According to Binder,
“peer-reviewed, published research has demonstrated that
people tested with observers present or with an audiotape
recorder running perform worse on neuropsychological tests
than people tested without observers or taping.” Countryside
also submitted a published article by Dr. Richard Kolbell,
Chair of the Ethics Committee of the Oregon Psychological
Association, which likewise opposed the presence of
observers or audiorecording of examinations, on both
practical and ethical grounds. The article concluded with
a statement of the Oregon Psychology Association opposing
the presence of third-party observers in neuropsychological
examinations. The statement asserts that, “[t]he use of a
third party observer during a forensic psychological and/or
neuropsychological evaluation does not meet an acceptable
standard of practice and is not permissible under current
professional and ethical standards.”
Cite as 353 Or 338 (2013) 343
After a hearing, the trial court granted Countryside’s
motion to compel, but declined imposing the two foregoing
conditions. The court explained that “[t]he practice of
this court is [to] deny the accompaniment of an observer,
and the recording of the examination, in the absence of
circumstances that make an exception to that general rule
necessary for a fair examination. I am not persuaded that
such circumstances exist here.”
B.  Mandamus Proceeding
Lindell petitioned this court for a writ of mandamus
“compelling the trial court to enter an Order adequately
protecting plaintiff and plaintiff ’s access to counsel in his
personal injury case by ordering that he may bring an
observer and/or he may audio or videotape the examination.”
In his memorandum in support of the petition, Lindell
asserted that the trial court erred in failing to impose the
requested conditions because it “shift[ed] the allocated
burden of proof in ORCP 44 A away from the defendant to
show ‘good cause’ for the examination” and because the trial
court “either declined to exercise [discretion] to establish
conditions for the examination” or “abused its discretion by
failing to provide adequate and reasonable protections for
a brain-injured plaintiff attending a defense psychological
examination.” He argued that he had no adequate remedy
at law, as his “right to counsel in the adversarial proceeding
of a defense medical examination under ORCP 44 A *  * *
cannot be vindicated by a subsequent appeal.”
This court issued an alternative writ of mandamus,
instructing the trial court to
“enter an order permitting plaintiff Lindell to have
legal counsel present as an observer at the ORCP [44]
examination of plaintiff, under the condition that legal
counsel is unobtrusive and does not interfere with the
examination except as necessary to protect the legal
interests of plaintiff Lindell or, in the alternative, to show
cause for not doing so.”
In response, the trial court adhered to its decision not to
permit Lindell to have a third party attend the examination.
In a four-page, single-spaced letter opinion, the court
344 Lindell v. Kalugin
detailed the parties’ contentions about the need for the
requested condition on conducting the examination. The
court explained:
“ORCP 44 examinations are not intended to be
adversarial. They are intended to be professional
examinations conducted by professionals in accord with
the high standards and practices of their profession.
Notwithstanding, experience teaches that professionals
do, on occasion, stray from those high standards and allow
their judgment to be colored by other influences. This is the
stuff of cross examination and the wisdom of the jury.
“The issue for this court is, what conditions are
necessary to protect the interests of both the plaintiff and
the defendant, for both are entitled to a process that is
as fair as possible. Just as a plaintiff may complain that
an unaccompanied examination may put him or her at a
disadvantage, a defendant may complain that allowing
anyone to observe an examination necessarily influences
the accuracy and outcome of the examination.”
The court acknowledged that Lindell “has a brain injury,
that he wears hearing aids and that he has tinnitus.”
Nevertheless, the court commented, the evidence that
Lindell submitted “does not say that his cognitive functioning
is such, or that his hearing impairment is such, that he is
unable to present for a neuropsychological examination.”
The court acknowledged Lindell’s contention that he is
“emotionally fragile.” Still, the court stated, the evidence
“does not say that Mr. Lindell cannot meaningfully present
for an ORCP 44 examination.”
The trial court also noted that it had heard from
Lindell that the presence of counsel is necessary because
the particular physician whom Countryside had selected to
conduct the examination “appears cold and unsympathetic
and acts skeptical” and that the doctor has the reputation
for being a defense advocate. The trial court responded:
“The court desire[s] to craft a litigation path that is as
fair and balanced to all parties as is possible. The plaintiff
is entitled to be as free from harassment, intrusion,
embarrassment, discomfort, and a host of other adjectives,
as possible. The defense is entitled to know Mr. Lindell for
Cite as 353 Or 338 (2013) 345
who he is. Overlaying all that is what appears to be the
true issue—the plaintiff objects to Dr. Wicher.
“It is unclear to me what is to be gained by having one of
Mr. Lindell’s lawyers observe, and not unnecessarily intrude
in, the examination by Dr. Wicher[.] If the purpose is to
improve Mr. Lindell’s mood, or help him answer questions,
then the examination is by design flawed. If the purpose is
to be able to critique the examination, will that lawyer be
obliged to make notes of his or her observations? To disclose
those notes? To be subject to deposition? Permitted to testify
at trial, either as a fact or impeachment witness? If to
critique the tests done or questions asked, and the results
and answers obtained, does the lawyer need a minimum
amount of training in the examiner’s field of expertise?”
The trial court concluded that, in the end, Lindell simply had
not demonstrated good cause for the requested condition on
the conduct of the examination.
Lindell now requests that this court enter a
peremptory writ, requiring the trial court to allow either “a
friend, family member[,] or attorney with him to the defense
psychological examination.” He frames his argument in
terms of three assignments of error. First, he argues that
“[t]he trial court erred in adopting a presumption” against
the conditions that he sought. Second, he argues that “[t]he
trial court erred when it refused to exercise its discretion to
fashion” a remedy that would have protected him adequately
during the examination. Third, he argues that, “[t]he trial
court erred in refusing to enter an order complying with this
court’s alternative writ.”
The narrowness of the issues before us bears some
emphasis. Lindell does not argue that he has a constitutional
right to the presence of counsel during the examination.
He does not mention any provision of the state or federal
constitution in his petition for a writ of mandamus or any
supporting memoranda. Nor does he cite any case for the
proposition that he is entitled, as a matter of law, to the
presence of counsel qua counsel during a defense medical
examination. As we have noted, before the trial court, he did
mention—briefly—a constitutional right to counsel. Even
346 Lindell v. Kalugin
then, the only relief that he requested was that the court
permit “legal counsel or a friend” to attend the examination.
At all events, a constitutional right to counsel is
not a matter that he pursues before this court. His only
argument now is that he “should be permitted to either
bring a third party observer or to record the examination”
because doing so “is sound policy and warranted on the facts
of this record.” He contends that “a third party observer or
a recording is necessary to guarantee the fairness” of the
examination. That third party, he argues, could be “a friend,
family member or attorney.” His argument in that regard is
predicated solely on ORCP 44 A and what he contends is the
trial court’s erroneous interpretation and application of it.1
Amicus curiae Oregon Trial Lawyers Association
(OTLA) even more explicitly takes the position that the
issue is not whether Lindell has a right to the assistance of
counsel during a defense medical examination. OTLA notes
that the alternative writ mentioned only the presence of
legal counsel, but then states that OTLA
“finds it difficult to analyze the question as so strictly
confined. * * * [T]he examinee may have concerns best * * *
addressed by something other than the presence of counsel.
OTLA believes that neither the questions presented to the
trial court by the litigants here, nor the analysis necessary
to answer them, can be restricted to the presence of the
examinee’s attorney.”
Like Lindell, OTLA focuses instead on the question whether
the trial court erred in failing to permit a third-party
observer, who “could be the examinee’s attorney or could
be a family member or a friend.” Accordingly, we confine
our opinion to those matters and do not address the legal
issue whether a plaintiff in a personal injury action has a
constitutional right to the presence of counsel at a defense
medical examination.
1
Lindell also argues that, if we are not inclined to require the presence of
a third party, we should order the trial court to permit him to audiorecord the
examination. The alternative writ, however, did not say anything about requiring
the court to permit a recording of the examination. We confine ourselves to the
only issue set out in the alternative writ and express no opinion about whether
the court abused its discretion in failing to allow Lindell to audiorecord the
examination.
Cite as 353 Or 338 (2013) 347
II. ANALYSIS
Mandamus is “an extraordinary remedy” and
serves a limited function. Sexson v. Merten, 291 Or 441,
445, 631 P2d 1367 (1981). It is a statutory remedy aimed at
correcting errors of law for which there is no other “plain,
speedy and adequate remedy in the ordinary course of the
law.” ORS 34.110. Importantly, as this court has stated
many times, “[i]t has become hornbook law in this state
that the writ of mandamus cannot be used as a means of
controlling judicial discretion.” State ex rel. Ricco v. Biggs,
198 Or 413, 422, 255 P2d 1055 (1953); see also State ex rel
Douglas County v. Sanders, 294 Or 195, 198 n 6, 655 P2d 175
(1982) (“Mandamus is not available to review the exercise
of trial court discretion.”). Only if the trial court’s decision
amounts to “fundamental legal error” or is “outside the
permissible range of discretionary choices” will the remedy
of mandamus lie. State ex rel Keisling v. Norblad, 317 Or
615, 623, 860 P2d 241 (1993).
At issue in this case is whether the trial court
committed such fundamental legal error or made a decision
outside the permissible range of discretionary choices in
interpreting and applying ORCP 44 A, which provides, in
part:
“When the mental or physical condition or the blood
relationship of a party *  * is in controversy, the court
*
may order the party to submit to a physical or mental
examination by a physician or a mental examination by a
psychologist or to produce for examination the person in
such party’s custody or legal control. The order may be
made only on motion for good cause shown and upon notice
to the person to be examined and to all parties and shall
specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be
made.”
Lindell’s first contention is that the trial court erred
as a matter of law in interpreting that rule to create a
“presumption” against imposing the condition that he
requested. As we understand it, Lindell asserts that, under
ORCP 44 A, the examinee has no burden to establish
anything with respect to a requested condition; rather, the
348 Lindell v. Kalugin
burden rests with the party requesting the examination
to establish the unreasonableness of any such requested
conditions. Beyond that bare assertion in his brief, Lindell
has supplied no supporting explanation or argument
concerning the nature of the trial court’s asserted error. Nor
has he provided any explanation for why he believes that
ORCP 44 A imposes a burden on a defendant to establish the
unreasonableness of any condition that a plaintiff requests.
He simply notes that the trial court’s order in this case is
inconsistent with trial court orders in other cases in other
circuits.
OTLA proposes an argument in support of Lindell’s
position. In OTLA’s view, certain requested conditions
should be regarded as “presumptively appropriate,” given
the “adversarial” and “inherently intimidating” nature
of a defense medical examination. Those presumptively
appropriate conditions include “the presence of an observer”
during the examination. OTLA acknowledges that, for most
forms of discovery, the Oregon rules require a showing
of good cause before a court may impose conditions on
discovery. Nevertheless, it argues, because of the unique
phrasing of ORCP 44 A, a different allocation of the burden
of persuasion should apply. Specifically, OTLA notes
that ORCP 44 A allows a trial court to order a medical
examination only upon a showing of “good cause” by the
party requesting the examination. OTLA further notes that
the rule says nothing one way or the other about who bears
the burden of persuasion concerning the necessity of any
conditions on the examination. Under the circumstances,
OTLA reasons, it seems to follow that the party who bears
the burden of establishing good cause for the examination
should also bear the burden of establishing a lack of good
cause for any conditions on that examination.
Countryside responds that OTLA’s argument is
contrary to settled principles about the proper allocation of
the burden of persuasion as to a fact or issue. It further
argues that OTLA’s argument is contrary to this court’s
decision in Pemberton v. Bennett, 234 Or 285, 289, 381 P2d
705 (1963), in which the court upheld the trial court’s refusal
to allow counsel to attend a defense medical examination
Cite as 353 Or 338 (2013) 349
precisely because the plaintiff in that case had failed to
establish why the presence of counsel was necessary.
To determine the meaning of ORCP 44 A, we apply
the precepts that ordinarily apply to the interpretation of
statutes and rules. A.G. v. Guitron, 351 Or 465, 471, 268 P3d
589 (2011) (applying those principles to ORCP 44 B and C).2
In accordance with those ordinary principles of construction,
we examine the text of the rule in its context, along with any
adoption history that we find relevant. State v. Gaines, 346
Or 160, 171-72, 206 P3d 1042 (2009). Case law existing at
the time of the adoption of the rule or its predecessor forms
part of the context of the rule. Guitron, 351 Or at 471; SAIF
v. Walker, 330 Or 102, 108-09, 996 P2d 979 (2000).
We begin with the text of the rule. ORCP 44 A plainly
provides that the party seeking an order compelling another
party to submit to a mental or physical examination must
establish “good cause” for the order. The rule requires that
the order “specify the time, place, manner, conditions, and
scope of the examination,” but—as all parties acknowledge—
it does not expressly impose a burden on anyone in particular
to establish the reasonableness of those conditions.
Ordinarily, the party seeking relief bears the
burden of persuasion. See OEC 305 (“A party has the burden
of persuasion as to each fact the existence or nonexistence
of which the law declares essential to the claim for relief
or defense the party is asserting.”). Thus, it would seem
to follow that, if the party requesting the examination
also requests certain conditions, that party must establish
good cause for those conditions. Likewise, if the examinee
2
It may be argued that, to the extent that any of the Oregon Rules of Civil
Procedure were not actually adopted or amended by the legislature, they are not
themselves statutes. Cf. Waddill v. Anchor Hocking, Inc., 330 Or 376, 382 n 2, 8
P3d 200 (2000), adh’d to on recons, 331 Or 595, 18 P3d 1096 (2001) (only if a rule of
civil procedure was amended or adopted by the legislature is the proper focus the
intentions of the legislature). We need not address that issue in this case because,
as we note below, ORCP 44 A was, in fact, amended by the legislature. Moreover,
the same basic principles apply to the interpretation of both statutes and rules.
See, e.g., State v. Hogevoll, 348 Or 104, 109, 228 P3d 569 (2010) (“In construing an
administrative rule, we apply the same analytical framework that applies to the
construction of statutes.”); Tye v. McFetridge, 342 Or 61, 69, 149 P3d 1111 (2006)
(“In interpreting an administrative rule * * * our task is the same as that involved
in determining the meaning of a statute, which is to discern the meaning of the
words used, giving effect to the intent of the body that promulgated the rule.”).
350 Lindell v. Kalugin
requests conditions on the examination, then that party
must establish good cause for those conditions.
Consistently with that ordinary allocation of the
burden of persuasion, the Oregon Rules of Civil Procedure
provide that any party who wishes to impose conditions on
discovery may do so by means of a motion for a protective
order under ORCP 36. That rule, which expressly applies to
“physical and mental examinations,” ORCP 36 A, provides
that the party seeking an order “that discovery may be had
only on specified terms and conditions” must establish “good
cause” for those conditions. ORCP 36 C.
Thus, taken together, ORCP 44 A and 36 C suggest
that, if an examinee wishes the court to order that a third
party be present at a physical or mental examination or that
any other limitation or condition be placed on such discovery,
it is the examinee’s burden to establish good cause for such
a limitation or condition.
The context of those rules, as they were developed
over the years, bears out that interpretation. As we
explained in Guitron, 351 Or at 471, this court recognized
the inherent authority of trial courts to order a plaintiff to
submit to an examination by medical experts in Carnine v.
Tibbets, 158 Or 21, 27, 74 P2d 974 (1937). In Pemberton, the
court addressed the scope of that inherent authority as it
applied to case facts nearly identical to those before us now.
234 Or at 286. The plaintiff had initiated an action against
the defendants for personal injuries. The defendants moved
for an order requiring the plaintiff to submit to a physical
examination by a physician selected by the defendants.
The plaintiff arrived at the examination with her attorney,
but the physician refused to make the examination in the
presence of the attorney. The matter was taken up by the
trial court. The plaintiff offered no evidence. That is to say,
the plaintiff offered “nothing to indicate in what way [she]
believed her physical examination out of the presence of her
attorney would be or was prejudicial.” Id. at 286. The trial
court ordered the plaintiff to submit to the examination
without being accompanied by her attorney. On appeal, the
plaintiff assigned error to the trial court’s ruling. This court
affirmed.
Cite as 353 Or 338 (2013) 351
The court first held that the question whether
counsel may be present at a compelled medical examination
is a matter “largely within the discretion of the trial court.”
Id. at 287. The court acknowledged that it could be argued
that counsel had a right to be present “at all times to
advise his client in any matter affecting the lawsuit.” Id.
at 288. The court noted that it also could be argued that “a
medical examination is not an occasion when the assistance
of counsel is normally necessary.” Id. The court suggested
that “[t]he presence of an attorney in an examination would
probably tend to prolong the examination and could create
an atmosphere in which it would be difficult to determine
the examinee’s true reactions.” Id. Still, the court observed,
“there are certain occasions when the trial court might
determine that the attorney’s presence at all or part of an
examination is a reasonable request. The examinee, the
examiner, the nature of the proposed examination or the
nature of the medical problem,—these factors, separately
or collectively could cause the trial court to condition the
examination upon the attorney being permitted to be
present at all or part of the examination.”
Id. at 288-89. The key was whether the plaintiff established
a basis on which the trial court could determine that the
presence of counsel was reasonably necessary. The court
noted that no such record existed in that case:
“In the instant case, no reason was advanced why it was
desirable or necessary that the attorney for the plaintiff be
present at the examination. The trial court had no basis
for determining whether or not the examination should
be conducted with or without the presence of plaintiff ’s
counsel. This assignment of error is found to be groundless.”
Id. at 289.
Thus, at least before the adoption of ORCP 44 A and
36, the law was clear that whether counsel could be present
during a compelled medical examination was a matter
committed to the discretion of the trial court and depended
on whether the party seeking the condition established the
reasonable necessity of that condition.
Meanwhile, the Federal Rules of Civil Procedure
were adopted. Those rules often have served as models for
352 Lindell v. Kalugin
state rules of civil procedure, and that was later to be the
case for Oregon’s rules. Federal Rule of Civil Procedure
35(a)—originally adopted in 1937 and amended in 1970—
provided:
“When the mental or physical condition (including the
blood group) of a party, or of a person in the custody or under
the legal control of a party, is in controversy, the court in
which the action is pending may order the party to submit
to a physical or mental examination by a physician or to
produce for examination the person in his custody or legal
control. The order may be made only on motion for good
cause shown and upon notice to the person to be examined
and to all parties and shall specify the time, place, manner,
conditions, and scope of the examination and the person or
persons by whom it is to be made.”
FRCP 35(a) (1970).
Federal courts construing and applying that rule
have concluded that counsel may attend a physical or
mental examination, if at all, only upon a showing of good
cause. See, e.g., Warrick v. Brode, 46 FRD 427, 427 (D Del
1969) (“The examination authorized by Rule 35, while
providing for protective devices, does not provide for the
presence of counsel.”); Dziwanoski v. Ocean Carriers Corp.,
26 FRD 595, 598 (D Md 1960) (“The presence of the lawyer
*  * is not ordinarily either necessary or proper; it should
*
be permitted only on application to the court showing good
reason therefor.”). According to the federal court decisions,
the requirement that a party demonstrate good cause for
such conditions on the examination derived from Federal
Rule 26(c), which provided that any party may request
a protective order to limit the scope of discovery for good
cause.
In 1973, the Oregon State Bar Committee on
Practice and Procedure drafted House Bill (HB) 2101 (1973),
which, among other things, codified the authority of the
trial court to order a party to attend a physical or mental
examination. Section 1 of that bill provided:
“In a civil action where a claim is made for damages for
injuries to the party or to a person in the custody or under
the legal control of a party, the court in which the action
Cite as 353 Or 338 (2013) 353
is pending may order the person claiming to be injured to
submit to a physical or mental examination by a physician
employed by the moving party. The order may be made
only on motion for good cause shown and upon notice to
the persons to be examined and to all parties. The motion
and order shall specify the time, place, manner, conditions,
and scope of the examination and the person or persons by
whom it is to be made.”
Or Laws 1973, ch 136, § 1.
There is little legislative history about that section;
most of the attention devoted to HB 2101 involved other
sections of the bill that required the production of the
examining physician’s report. See generally Guitron, 351 Or
at 474-78 (detailing legislative history of other provisions
of HB 2101). David Landis, however, who was a member of
the Bar committee that drafted the bill, did explain to the
House Judiciary Committee that the phrasing of section 1
was modeled after Federal Rule of Civil Procedure 35(a) and
was intended to “merely codify existing case law.” Minutes,
House Judiciary Subcommittee #2, HB 2101, Feb 12,
1973 (statement of David Landis). Likewise, Austin Crowe,
another member of the bar committee, explained to the
Senate Committee on Judiciary that “section 1 tries to
codify the existing state law.” Minutes, Senate Committee
on Judiciary, HB 2101, May 2, 1973 (statement of Austin
Crowe). The legislature ultimately adopted the bill without
amendment, and it was codified at ORS 44.610 (1973).
In 1978, the Council on Court Procedures adopted
the Oregon Rules of Civil Procedure, including what is now
ORCP 44 A. As adopted by the council, the rule provided:
“When the mental or physical condition (including blood
group) of a party or of a person in the custody or under the
legal control of a party, is in controversy, the court may order
the party to submit to a physical or mental examination
by a physician or to produce for examination the person
in such party’s custody or legal control. The order may be
made only on motion for good cause shown and upon notice
to the person to be examined and to all parties and shall
specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be
made.”
354 Lindell v. Kalugin
The rule, plainly modeled on the wording of Federal Rule
35(a), thus extended a trial court’s authority to order an
examination not just in personal injury actions, but in
any case in which the mental or physical condition of a
party is in controversy. Under ORS 1.735, those rules
became effective on January 1, 1979, unless the legislature
amended, repealed, or supplemented them. As it happens,
the legislature did amend slightly the wording of the rule
as adopted by the council, but none of those amendments
pertain to the issues in this case. See Guitron, 351 Or at
478-79 n 11 (detailing 1979 legislative amendments). After
adopting those changes, the legislature repealed ORS
44.610. Or Laws 1979, ch 284, § 199.
The council’s commentary to the rules sheds little
light on ORCP 44 A. Once again, the majority of the discussion
concerned other issues—in particular, the production of
physician examination reports. But the commentary does
make clear that the text of ORCP 44 A “comes from the
federal rule.” Comment, Discovery Committee Draft Rules,
Council on Court Procedures, Dec 2, 1978, 57.
At the same time, the council adopted ORCP
36, which was also based on a federal rule—specifically,
Federal Rule 26. ORCP 36 A first sets out a general rule
of discovery by various methods, including “physical and
mental examinations.” ORCP 36 C then provides that any
party may, “for good cause shown,” seek an order “which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
That order may include a requirement “that discovery may
be had only on specified terms and conditions.” Id.
At the time that the council adopted, and the
legislature amended, ORCP 44 A, the federal courts
uniformly continued to allow counsel or other third parties
to attend an examination, if at all, only on a showing of
good cause pursuant to FRCP 26(c). See, e.g., Sanden v.
Mayo Clinic, 495 F2d 221, 225 (8th Cir 1974) (trial court
did not abuse its discretion in refusing to allow third party
to attend medical examination because plaintiff failed to
establish good cause); Brandenburg v. El Al Israel Airlines,
79 FRD 543, 546 (SDNY 1978) (party’s contention of right
Cite as 353 Or 338 (2013) 355
to counsel at a Rule 35 examination was “frivolous”).
Indeed, to this day, federal courts generally prohibit counsel
from attending the examination. See generally James C.
Francis IV and Robert M. Bloom, 7 Moore’s Federal Practice
§ 35.08[1] at 35-35 (3d ed 2009) (“Because the presence of
the examinee’s attorney may inhibit the examiner and also
create the possibility that the attorney will become a trial
witness, courts generally prohibit counsel for the party to be
examined from attending the examination.”).
To summarize: Both ORS 44.610 and ORCP 44 A
were intended to “codify existing case law,” which at the time
held that a trial court exercising its inherent authority to
compel a medical examination had the discretion to impose
conditions on the examination only if the party seeking the
conditions established good cause for them. Moreover, the
wording of both ORS 44.610 and ORCP 44 A was based on
the wording of Federal Rule 35(a), a rule that federal courts
at the time consistently construed to impose a burden on
the examinee seeking to impose conditions on a compelled
physical or mental examination to show good cause for those
conditions.
As a general rule, when the Oregon legislature
borrows wording from a statute originating in another
jurisdiction, there is a presumption that the legislature
borrowed controlling case law interpreting the statute along
with it. Jones v. General Motors Corp., 325 Or 404, 418, 939
P2d 608 (1997); Fleischhaer v. Bilsted et al, Gray et ux, 233
Or 578, 585, 379 P2d 880 (1963). In this case, the federal
case law, although not including decisions of the United
States Supreme Court, nevertheless was consistent at the
time that the Oregon legislature adopted ORS 44.610 and
ORCP 44 A, and, indeed, remains consistent to this day.
Under the circumstances, it seems appropriate to regard
the federal court decisions as at least highly persuasive
as to the intentions of the Oregon legislature in borrowing
from the federal rules. See, e.g., BRS, Inc. v. Dickerson, 278
Or 269, 275, 563 P2d 723 (1977) (“ ‘When one state borrows
a statute from another state, the interpretation of the
borrowed statute by the courts of the earlier enacting state
356 Lindell v. Kalugin
ordinarily is persuasive.’ ”) (quoting State ex rel Western
Seed v. Campbell, 250 Or 262, 270-71, 442 P2d 215 (1968)).
OTLA does not contest that the federal cases
consistently hold that it is the examinee who bears the
burden of demonstrating good cause for a requested condition
on a physical or mental examination. Nevertheless, it
argues that we should reject them, because they are based
on a “somewhat wistful outlook on compelled medical
examinations.” OTLA suggests that we should instead be
persuaded by the more realistic reasoning of courts from
other states that have recognized the adversarial nature
of compelled examinations and presume that an examinee
may be accompanied by counsel or a designated third person
or that a record of the examination be required.
OTLA misperceives the nature of the issue before
us, which is not a matter of this court’s view—“wistful,”
“realistic,” or otherwise—of the real nature of compelled
medical examinations. The issue before us is solely one of
interpretation, guided by the rules that we have described.
See Holien v. Sears, Roebuck and Co., 298 Or 76, 95-96, 689
P2d 1292 (1984) (“The responsibility of this court is to apply
and interpret the law, not to assume the role of a legislative
chamber.”).
As for the decisions of other state courts that OTLA
offers, we note that the courts’ decisions are based on their
interpretations of differently worded rules—rules that
expressly recognize a right of a party to be accompanied
by counsel or other persons. See, e.g., Langfeldt-Haaland v.
Saupe Enters., Inc., 768 P2d 1144, 1147 (Alaska 1989) (state
constitution gives plaintiff the right to the presence of counsel
during a mental examination); Vinson v. Superior Court, 43
Cal 3d 833, 846, 740 P2d 404 (1987) (state statute provides
the right to presence of counsel at physical examination);
Boswell v. Schultz, 175 P3d 390, 393 (Okla 2007) (state rule
expressly permits presence of observer at examination).
Others have adopted the view that OTLA proposes without
reference to any rule at all. See, e.g., Parsons v. Hytech Tool
& Die, 661 NYS2d 362, 362, 241 A2d 936 (1997). Oregon’s
rules are different and do not permit the interpretation that
OTLA advocates.
Cite as 353 Or 338 (2013) 357
In short, we reject Lindell’s and OTLA’s contention
that ORCP 44 A imposes on the party seeking a physical or
mental examination the burden of proving that conditions
that are requested by the examinee are unreasonable.
The burden rests with the examinee to establish that
any requested limitations or conditions on discovery are
supported by good cause. In this case, therefore, the trial
court did not commit a fundamental legal error in requiring
Lindell to establish good cause for his request that he be
permitted to have a third party accompany him during the
compelled medical examination.
Lindell’s remaining contentions are that the trial
court either “refused to exercise its discretion” to order that
the examination proceed only on the condition that a third
party be present or that the court “abused its discretion”
when it failed to order that condition. In evaluating those
contentions, we are mindful of the extraordinary nature of
the remedy of mandamus and that the scope of our review
is limited to determining whether the trial court’s decision
was “outside the permissible range of discretionary choices
open” to it. State v. Burleson, 342 Or 697, 702, 160 P3d 624
(2007).
Lindell, in arguing that the trial court either
refused to exercise discretion or abused its discretion, notes
that the court, at least in its initial decision, simply relied
on the “practice” of the court to deny requests for conditions
on medical examinations in the absence of a showing of
necessity. In a similar vein, it could be argued that the
trial court’s letter opinion in response to the alternative
writ similarly set the bar too high in mentioning the fact
that Lindell failed to establish the absolute “necessity” of
the presence of a third party at the examination. But, in a
mandamus proceeding, we are limited to deciding whether
the trial court committed clear error. In this case, the trial
court’s opinion also included an evaluation of the evidence
offered by both parties and an attempt to arrive at a decision
that took into consideration both the reasons for Lindell’s
request and Countryside’s concerns in opposing it.
Specifically, the trial court acknowledged the serious
nature of Lindell’s injuries and their effect on his ability to
358 Lindell v. Kalugin
hear, to remember details, and to handle stressful situations.
The court noted that Lindell is “entitled to be as free from
harassment [and] discomfort” as much as is possible. At
the same time, the court noted Countryside’s evidence
that allowing a third party to observe the examination
“necessarily influences the accuracy and outcome of the
examination” and that Countryside is “entitled to know Mr.
Lindell for who he is,” not who he is in the presence of a
friend, family member, or attorney. We cannot ignore those
aspects of the trial court’s opinion in our analysis.
The trial court’s ultimate decision to deny Lindell’s
request to require the presence of a third party at the
examination may be one about which reasonable persons
could disagree. But, in this mandamus proceeding, we
cannot say that the court failed to exercise its discretion or
that it exercised its discretion in a manner that was outside
the range of choices that the law permits.
Lindell insists that, given the evidence that
his injuries left him vulnerable and given the fact that
the examining physician has a reputation for being
“unsympathetic,” we should conclude that the trial court’s
denial of his request for the presence of a third party during
the examination was, in fact, outside the legally permissible
range of choices available under ORCP 44 A. If that were
the only evidence in the record, Lindell might have a point.
He neglects, however, to take into account the uncontested
evidence that Countryside offered. Given that record, the
trial court could perhaps have ruled either way on Lindell’s
request. But we cannot say that the law permitted the court
one, and only one, conclusion.
The alternative writ of mandamus is dismissed.