Ebel v. Superior Court

Opinion

GARGANO, J.

This litigation presents a single issue; does the plaintiff in a personal injury action for damages, who had been ordered to submit to a medical examination by a doctor selected by defense counsel, have the unconditional right to tape record all conversations which take place at the doctor’s office during the examination?

The facts are undisputed. On July 6,1970, petitioners instituted an action in the Superior Court of Kern County (Kern County action No. 110503) against real parties for damages resulting from injuries sustained in an automobile accident; petitioners were represented by Attorney Allan H. McFarland. Thereafter, issue was joined on the complaint and the cause was set for jury trial.

On February 6, 1973, real parties noticed a motion in the superior court for an order requiring John Ebel, one of the plaintiffs in the personal injury action, to submit to a physical examination by Dr. Mortimer Iger, an orthopedist. This motion was granted on February 16, 1973; the court order required Mr. Ebel to submit to the examination on February 23, 1973, at Dr. Iger’s office in Bakersfield, California.

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On February 23, 1973, John Ebel appeared at Dr. Iger’s office with R. T. Brown, an investigator employed by Mr. McFarland. The investigator was carrying a Sony Model TC-110 portable tape recorder, and he told Dr. Iger that he planned to be present during the medical examination and that he was going to record the proceeding. The doctor said that he did not wish to be recorded, and Brown explained that he was “a direct agent” of Mr. McFarland. The doctor stated that he had no objection to the investigator’s presence so long as he did not use the recorder. Then, when Dr. Iger refused to permit Brown to record the proceeding, Ebel declined to submit to the examination.

On March 15, 1973, real parties noticed a motion to dismiss petitioners’ complaint in the personal injury action and for other sanctions; the motion was based on John Ebel’s refusal to submit to a physical examination by Dr. Iger and was heard the following day. At the hearing, petitioners took the position that Ebel could have the medical examination tape recorded without prior court approval and that Ebel’s refusal to submit to the examination when the doctor refused to permit the tape recording was justified.