Uhl v. C.H. Shoemaker & Son, Inc.

OLSZEWSKI, Judge.

C.H. Shoemaker & Son, Inc. (“Shoemaker”) appeals from the lower court’s order denying its motion for an independent medical examination (“IME”). Shoemaker argues that the trial court abused its discretion in finding that Shoemaker failed to show good cause for the IME. We affirm.

On February 3, 1987, Donald and Janice Uhl filed a complaint against Shoemaker, alleging that Donald sustained serious injuries to his right arm after falling from a substandard scaffold owned by Shoemaker.

On March 12, 1987, the Uhls sent Shoemaker a set of interrogatories, including a request that Shoemaker name any *233expert witness it expected to call at trial. The Uhls also sent Shoemaker a second set of interrogatories on March 13th, again requesting the names of any expert Shoemaker expected to call at trial. Shoemaker did not respond and, consequently, the Uhls filed a motion to compel discovery which was granted on September 25th. On January 11, 1988, the trial court sanctioned Shoemaker for its continued and unexplained failure to comply with the September 25th order and cautioned Shoemaker that continued failure to comply could lead to harsher sanctions. On the same day, Shoemaker filed responses to the Uhls’ first set of interrogatories. Shoemaker’s answers, however, were inadequate. On June 24, 1988, the trial court sanctioned Shoemaker a second time for failing to comply with an April 22nd order compelling discovery.

On March 12, 1990, the Uhls filed a motion to strike Shoemaker’s non-responsive answers to interrogatories and demanded that Shoemaker specifically identify its experts for trial. On the same day, the lower court entered an order directing Shoemaker to serve discrete answers to the Uhls’ interrogatories concerning expert testimony within 180 days. The 180-day period expired without Shoemaker filing an answer.

On August 7, 1991, this case appeared on the trial list and all counsel agreed to a continuance so final trial preparation could be completed and the videotape testimony of Dr. Collier, Donald Uhl’s treating orthopedic surgeon, could be taken.

On November 13,1991, the Uhls took a videotape deposition of Dr. Collier, who testified as to the non-union of one of Mr. Uhl’s fractures. Although Shoemaker’s counsel was present at the deposition, he did not request an IME of Mr. Uhl.

The case was scheduled to return to the trial list on March 30, 1992. On April 1, 1992, however, Shoemaker requested an IME of Mr. Uhl. The lower court offered to allow Shoemaker to conduct the IME if it would reimburse the Uhls for the cost of videotaping Dr. Collier’s testimony. Shoemaker refused the Court’s offer. Thereafter, the trial court denied Shoemaker’s motion for an IME on the grounds that: (1) Shoemaker *234had not acted with due diligence and, (2) Shoemaker had failed to comply with the discovery orders of January 11,1988; June 24, 1988; and March 12, 1990. On May 6, 1992, Shoemaker filed a motion for reconsideration which was denied. This appeal followed.

Shoemaker contends that the trial court erred in denying its motion to compel an IME. Specifically, Shoemaker argues that the trial court abused its discretion in ruling that Shoemaker had failed to show good cause for the IME. We disagree. Pennsylvania Rule of Civil Procedure 4010(a) authorizes a trial court to order an IME of a party only when good cause is shown. The purpose of requiring good cause is to ensure that a party’s privacy is not unduly invaded. See State Farm Ins. Co. v. Swantner, 406 Pa.Super. 235, 594 A.2d 316 (1991); Explanatory Note, Pa.R.C.P. 238, 42 Pa.C.S.A. Whether good cause exists is a determination within the discretion of the trial court. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990). Absent an abuse of discretion, a reviewing court will not reverse the trial court’s determination that good cause does not exist. Id. Furthermore, our task in reviewing the discretion exercised by the lower court is not to substitute our judgment for that of the lower court, but to determine if the lower court’s action was manifestly unreasonable. I ole v. Western Auto Supply, 352 Pa.Super. 528, 508 A.2d 600 (1986). Lastly, “when the [trial] court has come to a conclusion by the exercise of discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion.” In re Estate of Mackarus, 431 Pa. 585, 596, 246 A.2d 661, 666 (1968). We find that the record supports the lower court’s decision.

First, Shoemaker has not acted diligently. The Rules of Civil Procedure do not establish a timetable for discovery; rather, “it is the job of the trial court to oversee discovery between the parties and therefore, it is within that court’s discretion to determine the appropriate measures necessary to insure the adequate and prompt discovery of matters allowed *235by our rules.” Lombardo v. DeMarco, 350 Pa.Super. 490, 495-96, 504 A.2d 1256, 1258-59 (1985) (emphasis added); see also Wertz v. Kephart, 374 Pa.Super. 274, 542 A.2d 1019, alloc. denied, 520 Pa. 619, 554 A.2d 511 (1988). The lower court denied Shoemaker’s motion on the grounds that Shoemaker had not acted promptly. We agree. Although this case was commenced over five years ago, Shoemaker did not file its motion until shortly before this case was to arrive on the trial list. Furthermore, Shoemaker did not file its motion until five months after the Uhls had already videotaped the trial testimony of their expert.

Second, granting Shoemaker’s motion would prejudice the Uhls. The Uhls videotaped their expert for trial with the expectation that Shoemaker was not going to call an orthopedic surgeon as an expert witness. Earlier in this litigation, the Uhls sought to discover through interrogatories whether Shoemaker would use expert witnesses. Shoemaker either refused to answer those interrogatories or did not answer them adequately. The Uhls then obtained court orders directing Shoemaker to comply with their discovery requests. Shoemaker, however, refused to comply with these court orders as well. Consequently, the Uhls were forced to videotape their expert’s trial testimony without the benefit of knowing whether Shoemaker would request an IME. If an IME were to occur now, the Uhls in all probability would have to re-videotape the trial testimony of their expert at substantial cost. The original videotaping of the Uhls’ expert cost $3,000. We find that it would be unfair to force the Uhls to incur this cost again. Furthermore, the trial court noted that the delay caused by granting Shoemaker’s motion would be compounded by the Uhls’ need to re-videotape their expert after receiving the results of the IME. This law suit has been pending for over five years. We perceive no reason to delay this lawsuit any further for Shoemaker’s benefit when Shoemaker itself has not acted diligently.

Shoemaker contends that it did not realize that an IME was necessary until two months before its motion and, therefore, did not sleep on its rights. Shoemaker claims that it was *236initially under the impression that Mr. Uhl would not request damages for permanent disability since Mr. Uhl had returned to work for a period of time after his accident. This belief was not dispelled, according to Shoemaker, until it received Uhl’s vocational report, which stated that Mr. Uhl was entitled to damages for permanent disability. . Shoemaker argues that, since it did not receive this report until two months before the case was re-listed for trial, its eleventh-hour motion is not the result of lack of diligence. We find this argument meritless.

First, Shoemaker offers no excuse for delaying its motion for two months after learning that an IME was necessary. This lack of diligence was inappropriate considering that Shoemaker knew the case was scheduled to return to the trial list in two months and had been pending for over five years. Second, Mr. Uhl’s treating physician testified during his deposition that Mr. Uhl had been permanently disabled by his accident. R.R. at 90-92. This deposition was videotaped three months before Shoemaker received Mr. Uhl’s vocational report. Shoemaker clearly should have realized at that point that Mr. Uhl might claim damages for permanent disability. Third, Shoemaker’s right to obtain an IME was not in any way dependent upon whether Mr. Uhl might make a claim of permanent disability. Shoemaker could have obtained an IME of Mr. Uhl even if Mr. Uhl was only presenting a claim for temporary disability. Shoemaker, however, chose not to exercise its right for five years. The burden of that decision should be placed upon Shoemaker and not the Uhls.

Order affirmed.

BECK, J., files a Dissenting Opinion.