Originally from Dispute Resolution Journal

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NEGLIGENCE — CALIFORNIA — DISCOVERY — INTERIM RULING
OP ARBITRATOR UPHELD

The court held that the prerogative writ of mandamus should not be
used to review routine matters during trial or arbitrations. The plaintiff
in a cause of action for negligence agreed to be physically examined
by a doctor for the defendant insurance company. The plaintiff, her
attorney, her husband, a court reporter and her personal physician
were all present during the preliminary questions. However, the doctor
refused to allow the plaintiff's personal physician to be present during
the physical examination. As a result, the physical examination did
not take place. The arbitrator then ordered the plaintiff to submit to
the examination without the accompaniment of her personal physician
during any portion of the examination. Plaintiff refused and sought
the .writ of mandamus to countermand the arbitrator's order. The petition
was denied and plaintiff appealed. In upholding the lower court's
decision that it was inappropriate to seek the prerogative writ in this
case, the court relied on Pacific Tel. & Tel. Co. v. Superior Court, 2
Cal. 3rd 161, 84 Cal. Eptr. 718, 465 P.2d 854. In that case the court
held that "except in extraordinary circumstances, discovery matters
should remain at the trial level until the completion of the trial." The
court held that the principle of Pacific Tel. should also be applied to
arbitration. The plaintiff's appeal has defeated one of the primary
purposes of arbitration which is to avoid delays. Due to the inordinate
two-year delay, the court disposed of the merits of plaintiff's
petition. The court rejected plaintiff's position that she had an unqualified
right to have her physician present at the pretrial examination. In
Sharff V. Superior Court, 44 Cal.2d 508, 282 P.2d 896, and Gonzi v.
Superior Court, 51 Cal.2d 586, 335 P.2d 97 the court permitted a court
reporter and the examiner's attorney to attend medical examinations.
The court held that the arbitrator did not abuse his discretion as he was
correct in his interpretation that these cases could not be expanded
to allow plaintiff's physician to be present as a matter of right.
Long v. Hauser, App., 125 Cal. Rptr. 125 (1975).