Preview:

FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: WILLIAM E. WININGHAM CHRISTOPHER G. STEVENSON Wilson, Kehoe, & Winingham Indianapolis, Indiana

ATTORNEY FOR APPELLEE: THOMAS E. ROSTA Kopka, Pinkus, Dolin, & Eads, PC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KELLY E. STUFF and KEN B. STUFF, Appellants-Plaintiffs, vs. ZACHARY L. SIMMONS, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 49A02-0505-CV-416

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Cale J. Bradford, Judge Cause No. 49D01-0312-CT-2139

December 12, 2005 OPINION - FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE Appellants-Plaintiffs, Kelly E. Stuff (Kelly) and Ken B. Stuff (Ken) (collectively, the Stuffs), appeal the trial court's decision to grant Appellee-Defendant's, Zachary L. Simmons (Simmons), Motion to Compel Kelly to Submit for Neuropsychological Examination pursuant to Indiana Trial Rule 35. We reverse and remand for further proceedings. ISSUE The Stuffs raise one issue on appeal, which we restate as follows: Whether the trial court properly exercised its discretion by ordering Kelly to undergo an independent neuropsychological examination pursuant to Indiana Trial Rule 35 when the Stuffs' personal injury claim only alleges general emotional distress normally associated with a physical injury and without asserting any specific mental injury. FACTS AND PROCEDURAL HISTORY On April 10, 2002, at approximately 6:13 p.m., Kelly was driving her vehicle southbound on I-465 on the Westside of Marion County, while Simmons was driving his pickup truck at high speed, weaving in and out of traffic behind Kelly. Simmons lost control of his vehicle and crashed into the rear of Kelly's car. After the accident, Kelly was transported to St. Vincent's emergency room where she was treated for cervical and lumbosacral strain. The emergency room released her to her family doctor. On April 18, 2002, Kelly saw her family doctor, John Kersteff M.D. (Dr. Kersteff), complaining of neck and upper back pain as well as some lower back pain. Upon examining her, Dr. Kersteff located tenderness in Kelly's back and neck muscles 2

and prescribed her anti-inflammatory and muscle relaxant medications. After several months of physical therapy, Dr. Kersteff ordered an MRI and referred Kelly to Steven E. Levine, M.D. (Dr. Levine), who specializes in interventional pain management. Dr. Levine gave Kelly cervical spine facet joint injections to numb the joints. In May of 2003, Dr. Levine performed a cervical epidural, injecting Kelly's spine with an antiinflammatory. At the same time, Dr. Levine also gave Kelly trigger point injections along the spine to reduce muscle spasms. Thereafter, in June of 2003, Dr. Levine performed a facet rhizotomy on Kelly's neck. experience pain in her neck and mid-back. On December 1, 2003, the Stuffs filed a complaint against Simmons, alleging negligence resulting in severe and permanent injuries as well as considerable pain and suffering and emotional distress. During the litigation, Simmons' insurer, State Farm, requested Kelly to submit to an independent medical exam (IME) pursuant to Indiana Trial Rule 35. The Stuffs agreed to State Farm's request and on October 4, 2004, Kelly was examined by Dr. Theodore A. Nukes, M.D. (Dr. Nukes). Dr. Nukes concluded that because there were "minimal physical and neurologic exam findings," Kelly was magnifying her symptoms and neuropsychological testing/MMPI should be considered to assist in determining the level of symptom magnification. (Appellant's App. p. 23). Kelly refused to submit to neuropsychological testing. On March 2, 2005, Simmons filed his Motion to Compel Kelly to Submit to Neuropsychological Examination. Two days later, on March 4, 2005, Kelly filed her objection to Simmons' motion. On March 28, 2005, a hearing was held during which the 3 Through 2004, Kelly continued to

trial court granted Simmons' motion and ordered Kelly to make herself available for a neuropsychological examination by Gregory Hale, M.D. (Dr. Hale) within forty-five days. On April 1, 2005, Kelly filed her motion to reconsider, which was followed on April 15, 2005, by a Verified Supplemental Motion to Reconsider asserting that the examination could not be completed within the allotted forty-five days, and that therefore, the trial scheduled for June 14, 2005 would need to be rescheduled. On April 18, 2005, the trial court denied Kelly's verified supplemental motion. On April 25, 2005, the trial court certified its ruling for interlocutory appeal. We accepted the appeal on June 27, 2005. Additional facts will be provided as necessary. DISCUSSION AND DECISION I. Standard of Review The standard of review in discovery issues is an abuse of discretion. Old Indiana Ltd. Liability Co. v. Montano ex rel. Montano, 732 N.E.2d 179, 183 (Ind. Ct. App. 2000), reh'g denied, trans. denied. An abuse of discretion occurs when a trial court reaches a conclusion that is against the logic and natural inferences which can be drawn from the facts and the circumstances before the trial court. Id. Moreover, an abuse of discretion occurs when the trial court misinterprets or misapplies the law. Id. Our supreme court has held that generally, "parties may obtain discovery regarding any matter relevant to the subject matter involved in the pending action, or which appears reasonably calculated to lead to the discovery of admissible evidence." Id. (quoting Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind. 1994)). Our discovery rules are 4

designed to encourage a liberal discovery procedure, the purposes of which are to provide parties with information essential to the litigation of all relevant issues, to eliminate surprise and to promote settlement, with a minimum of court involvement in the process. Id. (quoting Canfield v. Sandock, 563 N.E.2d 526, 528 (Ind. 1990), reh'g denied). II. Indiana Trial Rule 35 In their sole issue, the Stuffs contend that the trial court abused its discretion by compelling Kelly to submit to neuropsychological testing pursuant to Ind. Trial Rule 35. Indiana Trial Rule 35 (emphasis added) provides as follows: 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 suitably licensed or certified examiner 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. Specifically, referencing the requirements of T.R. 35, the Stuffs assert that Simmons failed to affirmatively show that Kelly has put her mental condition in controversy and that he has good cause for requesting Kelly to undergo neuropsychological testing. Focusing on the language in their Amended Complaint, filed April 7, 2004, the Stuffs allege that Kelly "suffered severe and permanent injuries, endured considerable pain and suffering, [and] suffered emotional distress. . .." (Appellant's App. p. 11). The Stuffs characterize these allegations as general emotional distress normally associated with a physical injury.

5

In support of his motion to compel Kelly to submit to neuropsychological testing, Simmons relies on the results of the IME, dated October 4, 2004, with Dr. Nukes. In his evaluation of Kelly, Dr. Nukes reported that due to the fact that there existed minimal physical and neurological exam findings, he opined that Kelly appeared to be magnifying her symptoms. He further concluded that while Kelly may have suffered a permanent impairment, it was difficult to determine any amount or level for it due to the symptom magnification, and suggested Kelly to undergo neuropsychological testing. Kelly refused and Simmons submitted his motion to compel pursuant to T.R. 35. The parties did not proffer, nor did our research discover any Indiana cases interpreting the "in controversy" and "good cause" language of T.R. 35. As such, the question presented by the Stuffs is a matter of first impression. Because Indiana's Trial Rule 35 largely duplicates the language of its equivalent rule of the Federal Rules of Civil Procedure, the federal courts' construction of Federal Rule 35 is helpful in our analysis of T.R. 35. The genesis of the federal courts' construction is the oft-quoted Supreme Court case of Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), stating that the "in controversy" and "good cause" requirements of the rules "are not met by mere conclusory allegations of the pleadings." However, the Schlagenhauf Court made it clear that, if a party's pleadings standing alone do not place her mental condition in controversy, that is not the end of the inquiry. Id. Schlagenhauf recognizes that a defendant may place an opposing party's mental condition in controversy by independent evidence: 6

The "in controversy" and "good cause" requirements of Rule 35 . . . are not met by mere conclusory allegations of the pleadings

Download Kelly Stuff, et al. v. Zachary L. Simmons.pdf

Indiana Law