Owens v. Bell

Celebrezze, C.J.,

concurring. Although I concur in the syllabus and judgment as expressed in the majority opinion, I am compelled to write separately to allay some concern that the bench and bar may have with the majority opinion.

The facts of the case at bar indicate that a party to a civil action underwent a physical examination in preparation for trial. The examination turned out to be unfavorable to that party and the results were sought to be admitted into evidence by the opposing party. Today’s decision permits the results of the examination to be admitted into evidence. However, this case should not be interpreted to stand for the proposition that any time a party to a civil action consults with an expert prior to trial but does not intend to call that expert as a witness, the opposing party may discover the identity of the expert or the expert’s findings or opinions and subsequently seek to introduce either at trial. Such situations are governed by the following Rules of Civil Procedure. Civ. R. 26(B)(4)(a) provides:

*54“Subject to the provisions of subdivision (B)(4)(b) of this rule and Ride 35 (B), a party may discover facts known or opinions held by an expert retained or specially employed by another party in anticipation of litigation or preparation for trial only upon a showing that the party seeking discovery is unable without undue hardship to obtain facts and opinions on the same subject by other means or upon a showing of other exceptional circumstances indicating that denial of discovery would cause manifest injustice.”

In addition, Civ. R. 35 states in part:

“(A) Order for examination. 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 himself to a physical or mental examination or to produce for such examination the person in the party’s custody or legal control. * * *

“(B) Examiner’s report. (1) If requested by the party against whom an order is made under Rule 35(A) or the person examined, the party causing the examination to be made shall deliver to such party or person a copy of the detailed written report submitted by the examiner to the party causing the examination to be made. The report shall set out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery, the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or, thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party to require delivery of a report on such terms as are just. If an examiner fails or refuses to make a report, the court on motion may order, at the expense of the party causing the examination, the taking of the deposition of the examiner if his testimony is to be offered at trial.”

Thus, Civ. R. 26 (B)(4)(a) allows for the discovery of experts consulted for trial preparation only upon a showing of “undue hardship” or “exceptional circumstances” while Civ. R. 35 permits discovery of physical or mental examinations conducted prior to trial if the examinations conducted were ordered by the court or made by agreement of the parties. Other than in those situations covered by these two rules, it would appear that the identity of experts consulted prior to trial but who will not be called as witnesses as well as the findings or opinions of those experts are not subject to discovery by the opposing party.

Finally, I must emphasize that the upshot of the majority opinion is simply that, insofar as relevance under Evid. R. 401 is concerned, HLA testing is relevant to a determination of paternity and was not barred by any legislation in effect prior to June 29, 1982.

*55Accordingly, for the foregoing reasons I likewise would reverse the decision of the court of appeals below.

O’Neill, J., concurs in the foregoing concurring opinion.