State ex rel. C.S. v. Dowd

923 S.W.2d 444, 1996 Mo. App. LEXIS 617, 1996 WL 174772
CourtMissouri Court of Appeals
DecidedApril 16, 1996
DocketNo. 69481
StatusPublished
Cited by9 cases

This text of 923 S.W.2d 444 (State ex rel. C.S. v. Dowd) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. C.S. v. Dowd, 923 S.W.2d 444, 1996 Mo. App. LEXIS 617, 1996 WL 174772 (Mo. Ct. App. 1996).

Opinion

CRANE, Chief Judge.

Relator, defendant in the underlying battery action, seeks a writ of prohibition prohibiting respondent from enforcing his order requiring relator to be physically examined under Rule 60.01(a) to determine if and when he was circumcised. We issued a preliminary order in prohibition and we now make our preliminary order absolute.

J.C., plaintiff in the underlying action, filed an action against relator for damages for battery. In her second amended petition, she alleged that relator had non-eonsensual sexual intercourse with her sometime between November 23, 1992 and November 30, 1992 when she was a patient undergoing treatment for depression at Jewish Hospital. Relator filed an answer denying the assault and asserting affirmative defenses to the punitive damage claim.

In the course of discovery, relator submitted an interrogatory to J.C. in which he asked her to describe any physical characteristics which she claimed would identify relator as the person who assaulted her. J.C. answered, “[Relator] is not circumcized [sic]. [Relator] stated that in the south, they didn’t eircumcize [sic] boys. [Relator] was very polite and a smooth talker.” In her interrogatories to relator, J.C. asked if relator was circumcised. Relator answered that he had been circumcised in Memphis, Tennessee as an infant, but did not have records. He also attested that he was a doctor of osteopathic medicine in a psychiatry residency at Washington University and that he performed various duties with respect to J.C.’s admission and treatment at Jewish Hospital over the course of the two months she was hospitalized. On November 9, 1992 he performed the admitting physical and took J.C.’s history. On November 14, he wrote an order for an OB consult with J.C., who was pregnant. On November 24 and 26,1992 he was present for J.C.’s ECT therapy. He also averred that he saw and spoke with J.C. at various times in the lounge or hallway during her admission.

J.C. filed a motion to order relator to submit to a physical examination pursuant to Rule 60.01(a) claiming that “[a]s an element of her proof’ she “alleges” that relator was uncircumcised at the time of the assault and that she “has reason to believe that [relator] is either uneireumcised or has undergone [447]*447circumcision after the date of the sexual assault. ...” Relator filed a memorandum in opposition to the motion and J.C. filed a motion to compel. The trial court granted the motion after hearing oral argument.

Relator contends that respondent exceeded his jurisdiction when he ordered relator to submit to a physical examination because J.C. failed to establish that relator’s physical condition was in controversy and that good cause existed to require the examination. We agree.

Generally parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of a case. Rule 56.01(b)(1). However, courts may not order a physical examination of a party in an action unless the party’s physical condition is “in controversy.” Rule 60.01(a). The order may be made only on motion “for good cause shown.” Id. Mere relevance is insufficient to satisfy these requirements:

The rule’s good cause and in controversy requirements are not met by mere conclu-sory allegations of the pleadings nor by merely showing the desired information to be obtained from the examination is relevant. The rule requires a greater showing of need than under the other discovery rules and a greater showing of need than relevancy.

Brooks v. Brown, 744 S.W.2d 881, 882 (Mo.App.1988).

The pleadings alone are generally sufficient to meet the good cause and in controversy requirements where the condition is the subject matter of the suit or the basis for damages. A plaintiff, by asserting a mental or physical injury, “places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” Schlagenhauf v. Holder, 379 U.S. 104, 119, 85 S.Ct. 234, 243, 13 L.Ed.2d 152, 164 (1964).1 Such examinations are usually ordered in cases in which the physical or mental condition which is the subject matter of the sought-after examination relates to an injury or to damages constituting the subject matter of the suit. See State ex rel. McCloud v. Seier, 567 S.W.2d 127, 128 (Mo. banc 1978). This rationale applies equally to a defendant who asserts his mental or physical condition as a defense to a claim. Schlagenhauf, 379 U.S. at 119, 85 S.Ct. at 243, 13 L.Ed.2d at 164; see also State ex rel. McCloud, 567 S.W.2d at 127-28; Brooks, 744 S.W.2d at 882. The purpose of the rule providing for medical examinations in actions involving the physical condition of a party is to eliminate uncertainty concerning the medical aspects of the cause and to permit the preparation of an intelligent and informed defense. McCloud, 567 S.W.2d at 127-28.

However, where the pleadings have not put the party’s physical or mental condition into issue, “the party requesting the examination must affirmatively show ‘that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.’ ” Brooks, 744 S.W.2d at 882 (quoting Schlagenhauf, 379 U.S. at 118, 85 S.Ct. at 242-43, 13 L.Ed.2d at 164). “Mental and physical examinations are only to be ordered upon a discriminating application by the [trial] judge of the limitations prescribed by the Rule.” Schlagenhauf, 379 U.S. at 121, 85 S.Ct. at 244, 13 L.Ed.2d at 165.

J.C. asserts that the condition of relator’s penis is in controversy. Federal courts interpreting Rule 35(a), F.R.C.P., and state courts interpreting procedural rules similar to Rule 60.01(a) have held that for a condition to be in controversy, the condition [448]*448must bear directly on the proof of the elements of a cause of action or defense. The “in controversy” requirement “contemplates that a determination of the merits of an issue in the case within which the motion for physical or mental examination is made, may turn on, or be directly affected, by the physical or mental condition of the party sought to be examined.” Raymond v. Raymond, 105 R.I. 380, 252 A.2d 345, 349 (1969). “In controversy” means the condition must be “directly involved in some material element of the cause of action or defense.” Gasparino v. Murphy, 352 So.2d 933, 935 (Fla.App.1977).

In Raymond the Rhode Island Supreme Court found that plaintiff did not put his mental condition in controversy by bringing suit and refused to order a mental examination under Rhode Island Rule 35(a) to determine if the plaintiff had the mental capacity to sue in his own name and therefore had standing to appeal from the probate court. 252 A.2d at 348-49. The court characterized the issue of the plaintiffs capacity to act sui juris on appeal as the type of issue which is relevant to the underlying action, but which is not itself really and genuinely in controversy. Id. at 349.

In Gasparino,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ratcliff v. Sprint Missouri, Inc.
261 S.W.3d 534 (Missouri Court of Appeals, 2008)
Stockmann v. Frank
239 S.W.3d 650 (Missouri Court of Appeals, 2007)
Doe v. Senechal
725 N.E.2d 225 (Massachusetts Supreme Judicial Court, 2000)
Doe v. West Lake Academy
10 Mass. L. Rptr. 315 (Massachusetts Superior Court, 1999)
Geiger v. Bowersox
974 S.W.2d 513 (Missouri Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
923 S.W.2d 444, 1996 Mo. App. LEXIS 617, 1996 WL 174772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cs-v-dowd-moctapp-1996.