Opinion
No. 47489
Decided May 27, 1968.
Physical examination and deposition of plaintiff — In forum county — Court may order plaintiff to travel from state of residence — Costs defrayed, how.
1. A trial court has inherent power to order a plaintiff to travel from his state of residence to the forum county, or adjoining county if more convenient, for both physical examination and deposition.
2. If the cost of complying with such order is extreme a defendant may be required to defray a portion of it in order to avoid a crippling imposition upon plaintiff.
Messrs. Sindell, Sindell, Bourne, Markus, Stern Spero and Mr. Keith Spero, for plaintiffs.
Messrs. Hauxhurst, Sharp, Mollison Gallagher and Mr. Forrest Norman, for defendant.
Defendant has moved the court for an order requiring plaintiffs to travel to Lake County prior to commencement of trial so that he may have them physically examined by his doctors and may take their depositions.
After considering the motion, briefs for and counter and the law, and also information obtained by the court at pre-trial hearing, the motion is sustained in part subject to conditions.
Plaintiffs George and Zelda Demorest are ordered to travel to Cuyahoga County, Ohio, and submit to examination by doctors of defendant's choice, not exceeding one neurologist or neurosurgeon and one orthopedic surgeon. These plaintiffs are also ordered to submit themselves for deposition examination by defendant at whatever office in Cuyahoga County he should specify. These various examinations shall take place not later than August 30, 1968, and shall be scheduled in such a manner as to require plaintiffs to be in Cuyahoga County for these purposes no longer than two consecutive days.
As a condition upon the obligation of plaintiffs to comply with the terms of this order defendant shall agree to reimburse plaintiffs for their reasonable transportation and living expenses which they will incur in complying. Transportation expense shall include economy class airfare from their home in Utah to Cuyahoga County and return, together with such other incidental expense for travel by cab or public service as is reasonably necessary.
Living expense shall be confined to non-luxury lodging and normal meals while in Cuyahoga County for the purpose of these examinations. Any dispute between the parties as to the reasonableness of the expenses of plaintiffs shall be tendered to the court for resolution. Any dispute over the identity of the examining physicians chosen by defendant shall also be submitted to the court with a statement of plaintiffs' objection. For this purpose, defendant shall obtain the appointments and acquaint plaintiffs with the appointment dates and times together with the identities of the physicians at least two weeks prior to the appointments.
Exceptions are noted for all parties affected by this order.
IT IS SO ORDERED.
An examination of the law in this and other state jurisdictions pertinent to this motion shows a vast diversity of opinion. The Ohio cases cited by counsel are not in agreement with one another. The sole Supreme Court decision, Kresge v. Trester, 123 Ohio St. 383, simply finds that the trial court is lodged with discretion on the subject, a principle with which neither counsel disagrees. The case of Steele v. True-Temper Corporation, within this court's appellate district, is authority only for the principle that the court should consider all the circumstances in each case before deciding whether to require examination in the place of plaintiff's residence or outside it. Thus it is not direct support for this motion nor support for plaintiffs' opposition to it, since plantiff in the Steele case was a resident of the forum county.
Complicating the Ohio picture, the court in the most recent case of Carroll v. Burchett, 10 Ohio Misc. 123, mistakenly refers to the Steele case as authority that the plaintiff can be required to come from an out of state residence to the Ohio forum county. Then, the court in Carroll makes a further mistake, in my judgment, by drawing a distinction between a physical examination and a deposition.
In my mind the decision in the case of Nomina v. Eggeman, 90 Ohio Law Abs. 57, is the better reasoned decision and the one I favor. No distinction can logically be drawn between the inherent power of the court to require parties under its jurisdiction to submit either to depositions or physical examination since the power to order both stems from the same source. It would be odd indeed if the power was sufficient to force a plaintiff to expose his body to examination, but not his mind and memory. Both his body and his mind are matters equally open to a defendant for discovery purposes.
The following cases in Federal District Courts approve the order which is granted here: Generally, cases cited in 71 A.L.R. 2d 965; Reed v. Marley, 321 S.W.2d 193 (Ark. to Okla.); Gale v. National Transportation Company, 7 F. R. D. 237 (from Mass. to New York); Pierce v. Brovig, 16 F. R. D. 569 (Ga. to New York); Warren v. Weber, 134 F. Supp. 524 (Maine to Mass.).
In addition these New York cases support it: Bannell v. Liggett Drug Company, 151 N.Y.S.2d 347 (Costa Rica to New York) and Anthony v. R. K. O. Radio, 8 F. R. D. 422 (Missouri to New York).
Where inconvenience is inevitable to one or the other party because of the distance separating plaintiff's residence and a forum, plaintiff must bear the larger part of it by virtue of having chosen the forum. This rule is not changed by the fact that the choice may have been dictated by necessity.
In the process of balancing rights and apportioning hardships, however, the court should endeavor to avoid extreme impositions on either side. So where the cost of complying with an order of this type is so substantial, comprising transportation, food and lodging, care of minor children and loss of earnings items, as likely to be crippling upon plaintiffs, it is reasonable to require a defendant to defray a portion of that cost as a condition to the enforcement of the order itself.