Edwards v. Superior Court

SULLIVAN, J.

I concur and dissent. I agree with the majority insofar as they conclude that the trial court did not abuse its discretion in compelling plaintiff to be examined by Dr. Shoor and in requiring her to submit to a four-hour examination. (Ante, pp. 912-913.)

However, I cannot join the majority in their conclusion that plaintiff was not entitled to the presence of her counsel at the psychiatric examination. I am of the opinion that the trial court abused its discretion in ordering plaintiff to submit to a psychiatric examination under Code of Civil Procedure section 2032, subdivision (a), 1 without the presence of her attorney. I would therefore reverse that portion of the trial court’s order.

The question of whether a party is entitled to have his attorney present during a medical examination ordered at the request of his adversary is one which this court has already faced and resolved. In Sharff v. Superior Court (1955) 44 Cal.2d 508 [ 282 P.2d 896 , 64 A.L.R.2d 494 ], we held that the plaintiff in a personal injury action may not be required to submit to an oral and physical examination by the defendant’s doctor without the presence of her attorney and that a trial court order to that effect “imposed an unwarranted condition on [the plaintiff’s] right to have the case proceed to trial.” (Id., at p. 511.) We reasoned as follows: “The doctor should, of course, be free to ask such questions as may be necessary to enable him to formulate an intelligent opinion regarding the nature and extent of the plaintiff’s injuries, but he should not be allowed to make inquiries into matters not reasonably related to the legitimate scope of the examination. [Citations.] Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril. The plaintiff, therefore, should be permitted to have the assistance and protection of an attorney during the examination. [Citation.]” (Id., at p. 510.)

*915 This reasoning is even more compelling in the case of a psychiatric examination, the entire substance of which is an interview between patient and doctor. Under these circumstances, the examinee is particularly vulnerable to possible efforts by his adversary’s representative to elicit damaging responses and information beyond the permissible scope of the examination. Furthermore, the ordeal of submitting oneself to the probing inquiries of someone whom the examinee may, as in the instant case, view as a hostile medical force is not to be taken lightly. The attorney’s presence will serve the dual purpose of protecting the examinee against improper questioning and at the same time providing a certain degree of comfort and support to make the experience a more tolerable one.

The majority argue that there is a settled distinction between psychiatric examinations and physical examinations which removes the former from our holding in Sharff v. Superior Court, supra, 44 Cal.2d 508 . They rely upon Court of Appeal decisions which draw this proposed distinction, on the theory that the attorney’s presence may prevent effective psychiatric examination by distracting the examinee and inhibiting her freedom of expression. (See e.g., Whitfield v. Superior Court (1966) 246 Cal.App.2d 81, 86 [ 54 Cal.Rptr. 505 ]; Durst v. Superior Court (1963) 222 Cal.App.2d 447, 452-453 [ 35 Cal.Rptr. 143 , 7 A.L.R.3d 874 ].)

I cannot accept this distinction. Where a court orders a' psychiatric examination at the request of one party, I find it difficult to believe that the atmosphere of the examination will be conducive to “a special and private rapport between examiner and examinee” (ante, at p. 912), or that such atmosphere will be destroyed by the attorney’s presence. As a matter of fact, it would seem that a party/examinee would be more likely to relax and respond candidly to an opponent’s doctor if she were secure in the knowledge that her attorney would object to improper questions. In any event, I find that the examinee’s interest in the protection offered by the attorney’s presence outweighs any potential infringement upon the effectiveness of the examination.

The cases cited by the majority in support of their argument are either distinguishable from the instant matter or not persuasive. In Durst v. Superior Court, supra, 222 Cal.App.2d 447 , the plaintiff brought suit against several insurance companies seeking to recover under personal disability policies for an allegedly disabling psychosis. He had been examined by 21 doctors, including psychiatrists, who could not agree on *916 whether he was in fact suffering from the claimed psychosis. In order to assist the parties in reaching a settlement or, in the alternative, to aid the trier of fact in resolving the conflict, the trial court, on its own motion under section 1871, 2 appointed an impartial psychiatrist to examine the plaintiff. Relying upon our decisions in Sharff v. Superior Court, supra, 44 Cal .2d 508, and Gonzi v. Superior Court (1959) 51 Cal.2d 586 [ 335 P.2d 97 ], 3 the plaintiff requested that his counsel and a court reporter be present during the examination. The trial court and the Court of Appeal denied the plaintiff’s request. In so doing, the appellate tribunal distinguished the case before it from Sharff and Gonzi in two respects. First, the court reasoned that unlike an examination ordered under section 2032, an examination conducted by virtue of section 1871 is not an adversary proceeding: “The difference between section 1871 and section 2032 of the Code of Civil Procedure should be kept clearly in mind. Under section 2032 one of the parties may request the court to order a person to submit to examination. This examination may be conducted by the physician for the party requesting the examination, and in a sense might he considered an adversary proceeding. In contrast, under section 1871 the examination is made on the court’s own motion and it may appoint an independent and disinterested expert who serves the purpose of providing the court with an impartial report.” ( 222 Cal.App.2d at p. 451 ; italics added.)

Second, the Durst , court found an additional distinguishing factor in the circumstance that the proposed examination was a psychiatric one whereas Sharff and Gonzi involved physical examinations. The .court based this distinction on the claim that the presence of an attorney or court reporter would detract from the ability of a psychiatrist to conduct a meaningful examination.

As will be explained herein, in the case of examination requested under section 2032, I do not agree that such a distinction should be drawn because I believe that the importance of the protection afforded the examinee by the attorney outweighs the risk of any improper interference by the latter with the examination, which interference can be dealt with by an appropriate protective order. We expressed these views in Sharff in the course of rejecting the same argument made in *917 Durst and now made in the case at bench. We said in Sharff : “It is argued that an attorney, by making groundless objections; may hinder an examination, thereby depriving the defendant of the benefit of an informed medical opinion. The plaintiff, however, should not be left unprotected on the assumption that an attorney will unduly interfere with the examination. Should such interference occur, appropriate steps may be taken by the court to provide the doctor with a reasonable opportunity to complete his investigation of the nature and extent of any injuries the plaintiff may have sustained.” (44 Cal.2d at pp. 510-511.) Indeed this paramount consideration of protecting the examinee is consistent with the basis of the Durst court’s first distinction which emphasizes that under section 2032 it is the opposing party who is examining and interrogating the plaintiff through his agent, the selected psychiatrist, and that the examination is adversary in character. 4

Significantly, then, the Durst court recognized that when under section 2032 an examination of the plain tiff" is requested by the adverse party to be conducted by the adverse party’s doctor, it is “important to have the plaintiff’s rights protected” ( 222 Cal.App.2d at p. 452 ), but that when in contrast the examination is ordered on the court’s own motion, to be conducted by an independent and disinterested expert appointed by the court to provide it with an impartial report, the plaintiff “does not require protection and suffers no prejudice . . . .” (Id.) The distinction lies in the fact of court appointment. It is therefore convenient at this point to comment briefly on our opinion in In re Spencer, supra, 63 Cal.2d 400 , which cites Durst with apparent approval, and upon which the majority rely.

It is significant to note at the outset that Spencer was a criminal case involving the psychiatric examination of a defendant charged with murder, which examination was ordered by the court as required by section 1027 of the Penal Code to be conducted by psychiatrists selected and appointed by the court. At issue was the admissibility of testimony of the psychiatrist disclosing statements made to him by the defendant during the psychiatric examination. We were called upon to resolve this question in the light of Massiah v. United States (1964) 377 U.S. 201 [ 12 L.Ed.2d 246 , 84 S.Ct. 1199 ], which dealt with the effect on a criminal *918 defendant’s constitutional right to counsel of incriminating statements elicited from him by government agents after he had been indicted and in the absence of his counsel.

We held in Spencer that the psychiatrist in such a situation was “an agent of the court” ( 63 Cal.2d at p. 410 ), and that because the psychiatric examination was “a critical period of the proceedings” within the meaning of Massiah , the right to the presence of counsel there attached and any incriminating statements made during the examination in the absence of counsel or a valid waiver thereof were inadmissible on the issue of guilt. The remainder of our opinion on this point addressed itself to the situation where “a defendant, under the advice of counsel, submits to an examination by court-appointed psychiatrists” ( 63 Cal.2d at p. 412 ) ordered pursuant to section 1027 5 and subsequently chooses to place his mental condition in issue at the guilt trial. In this circumstance, we held, the psychiatrist should be permitted to testify, but his testimony should be received subject to a limiting instruction to the effect that any incriminating statements be regarded not as proof of the truth of the facts therein stated but only as information upon which the psychiatric opinion was based. I think it clear that Spencer , which is based upon constitutional considerations not here applicable, is of doubtful relevance to the case at bench, wherein the sole issue is one of sound judicial policy in civil proceedings.

The majority rely heavily upon Whitfield v. Superior Court, supra, 246 Cal.App.2d 81 , where the precise question now presented to us was resolved contrary to our holding in Sharff . In Whitfield it was held that the trial judge did not abuse his discretion in denying the plaintiff’s request that her attorney and a court reporter be present during a psychiatric examination ordered under section 2032. After quoting at length from our opinions in Sharff and Gonzi (see fn. 3, ante) and noting the twofold distinction made by the Durst court, the Whitfield court concluded that the second factor distinguishing that case from Sharff and Gonzi (namely that a psychiatric rather than a physical examination was involved) “is more persuasive.” ( 246 Cal.App.2d at p. 85 .) The Whitfield court therefore seems to have found no relevance in our views in Sharff against leaving the examinee unprotected and little significance in the views of the Durst court that an examination conducted under section *919 2032 is adversary in character. 6 All in all I find the Whitfield decision to be an unconvincing and unrealistic resolution of the question.

For the foregoing reasons I conclude that respondent court abused its discretion in ordering plaintiff to submit to a psychiatric examination under section 2032 without the presence of her attorney. Accordingly, I would reverse that portion of respondent court’s order.

Mosk, J., concurred.

Hereafter, unless otherwise indicated, all section references are to the Code of Civil Procedure.

The provision authorizing the appointment of experts by the court is presently embodied in Evidence Code section 730.

In Gonzi v. Superior Court, supra, 51 Cal.2d 586 , we held that a court must grant permission, at the request of either party, for a reporter to be present during a physical examination ordered under section 2032. (Id, at p. 589.)

I would leave open the question as to whether the examinee’s attorney may be excluded from a psychiatric examination by an expert appointed by the court pursuant to Evidence Code section 730, superseding in part former Code of Civil Procedure section 1871. This question, of course, was not determined by us in In re Spencer (1965) 63 Cal.2d 400 [ 46 Cal.Rptr. 753 , 406 P.2d 33 ], discussed post.

Implicit in our Spencer holding is the conclusion that a criminal defendant who does not wish to submit to a section 1027 examination in the absence of his counsel is constitutionally entitled to refuse to do so.

The Whitfield court continued optimistically: “We must assume that defendants here expect the doctor selected by them to make a psychiatric examination which is at least unbiased and objective in order that his testimony, if offered, will convince the jury of petitioner’s actual mental condition.” ( 246 Cal.App.2d at p. 86 ; italics added.)

Nevertheless it is noteworthy that numerous courts and commentators have criticized the willingness of many experts to become the “hired champions” of one side or the other and the consequent reduction of many trials to a “battle of experts.” (See e.g., Winans v. New York & E. R. R. (1859) 62 (21 How.) U.S. 88, 100-101 [ 16 L.Ed. 68, 70-71 ]; Estate of Dolbeer (1906) 149 Cal. 227, 243 [ 86 P. 695 ]; Lowder v. Standard Auto Parts Co. (1939) 136 Neb. 747 [ 287 N.W. 211, 215 ], cone. & dis. opn„ Johnsen, J.; Opp v. 'Pryor (1920) 294 111. 538 [ 128 N.E. 580, 583 ]; McCormick, Evidence (2d ed. 1972) Expert Testimony, § 17, pp. 37-41; 2 Wigmore, Evidence (3d ed. 1940) Experiential Capacity, § 563, pp. 644-656; Witkin, Cal. Evidence (2d ed. 1966) The Opinion Rule, § 425, p. 385; Myers, “The Battle of the Experts:” A New Approach to an Old Problem in Medical Testimony (1965) 44 Neb.L.Rev. 539; McCoid, Opinion Evidence and Expert Witnesses (1955) 2 UCLA L.Rev. 356, 367-368; Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence (1943) 10 U.Chi.L.Rev. 285; Elliott & Spillman, Medical Testimony in Personal Injury Cases (1935) 2 Law & Contemp. Prob. 466, 467; Hand, Historical and Practical Considerations Regarding Expert Testimony (1901) 15 Harv.L.Rev. 40, 53; Comment, The Proposed Expert Evidence Bill (1915) 3 Cal.L.Rev. 216; Farley, Court Survey (1958) 33 State Bar J. 651, 654-655; Runkle, The Expert Medical Testimony Project (1957) 32 L.A. Bar Bul. 307; Peck, A Successful New Plan: Impartial Medical Testimony (1956) 42 A.B.A.J. 931; Mundo, Expert Witnesses as Officers of the Court (1935) 10 State Bar J. 113, 113-114.) One doctor who made frequent court appearances as an expert witness gave a particularly negative description of the medical experts who testify in personal injury actions: “[t]hey are of two hostile camps, and prepared to attempt, under solemn oath, to uphold opinions diametrically opposed, yet supposedly derived from a single series of facts and observations.” (Dr. J. W. Courtney, Address to the graduating class of the Harvard Medical School (1915), quoted in Myers, “The Battle of the Experts: ” A New Approach to an Old Problem in Medical Testimony (1965) 44 Neb.L.Rev. 539, 541, and Elliott & Spillman, Medical Testimony in Personal Injury Cases (1935) 2 Law & Contemp. Prob. 466.)