{
  "id": 1598958,
  "name": "Freddie SANCHEZ, Plaintiff-Appellant, v. NATIONAL ELECTRIC SUPPLY CO., Employer, and State Farm Insurance Co., Insurer, Defendants-Appellees",
  "name_abbreviation": "Sanchez v. National Electric Supply Co.",
  "decision_date": "1986-10-30",
  "docket_number": "No. 9315",
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  "casebody": {
    "judges": [
      "MINZNER and FRUMAN, JJ., concur."
    ],
    "parties": [
      "Freddie SANCHEZ, Plaintiff-Appellant, v. NATIONAL ELECTRIC SUPPLY CO., Employer, and State Farm Insurance Co., Insurer, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nBIVINS, Judge.\nHaving found that plaintiff suffered no disability as a result of his alleged work-related injury, and that defendants had paid all temporary compensation due, as well as medical expense, the trial court entered judgment against plaintiff. From that judgment plaintiff appeals. In his docketing statement plaintiff raised two issues. We proposed summary affirmance on both. Plaintiff's memorandum in opposition challenged summary disposition only as to the second issue: \u201cWhether Plaintiff was prejudiced by the failure of the Defendants to provide Plaintiff\u2019s counsel with a copy of Dr. Schultz\u2019s independent medical report dated December 5, 1985, until said report came to the attention of Plaintiff\u2019s counsel at trial during the testimony of Dr. Miller.\u201d That is the sole issue on appeal. See NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 501(a)(2) (Cum.Supp.1985). We affirm.\nDuring cross-examination of defendants\u2019 medical expert, Dr. Miller, plaintiff\u2019s counsel discovered in that physician\u2019s file a copy of a report from Dr. Schultz dated December 5, 1985. After asking Dr. Miller several questions about the report and concluding his cross-examination, plaintiff\u2019s counsel objected to an independent medical examination having been performed by Dr. Schultz without plaintiff being furnished a copy of the report. He also objected to being unable to conduct additional discovery based on the report. Counsel claimed prejudice by not having the report. Defense counsel\u2019s response implied that the report had not been furnished to plaintiff\u2019s counsel because defendants did not intend to call Dr. Schultz as a witness. The trial court ruled that it would not \u201cabort this proceeding\u201d because of the failure to obtain a copy of the report. The trial court did, however, admit the report since Dr. Miller indicated \u201csome reliance\u201d on it and plaintiff\u2019s counsel had had no opportunity to explore the report. The trial court noted that having the report in evidence would take care of any prejudice. Dr. Miller injected that he placed no reliance on Dr. Schultz\u2019s report and had not seen the report when he expressed his opinion. \u00abThe trial court indicated that its notes reflected Dr. Miller had relied on the report. No objection was made to the admission of the report in evidence. Although plaintiff\u2019s objection asked for no specific relief, the trial court treated it as a motion for continuance and we will do likewise.\nContrary to defendants\u2019 argument, we believe the issue was properly preserved for review. Although the trial court apparently considered the question as a disclosure of a fact underlying an expert opinion, see NMSA 1978, Evid. Rule 705 (Repl. Pamp.1983), counsel's objection sufficiently alerted the trial court that a claim of prejudice was being made by not having received a copy of the report and by not having had an opportunity to pursue further discovery. The trial court felt that having the report in evidence cured any possible prejudice. Although not necessary to the resolution, a review of Dr. Miller\u2019s testimony reveals that he had early testified that he \u201creviewed\u201d Dr. Schultz\u2019s report, but did not say when. He later clarified that the report was received a year after his opinion had been formulated.\nWhile we do not condone defense counsel\u2019s failure to provide opposing counsel with a copy of Dr. Schultz\u2019s report, that failure does not require reversal. Plaintiff and his attorney were aware of the independent medical examination conducted on October 25, 1985, yet never requested or demanded the results before the trial which commenced on April 3, 1986. It was only during the examination of Dr. Miller that plaintiff\u2019s counsel, while looking through the witness\u2019s file, accidentally found the report. Although NMSA 1978, Section 52-1-51(G) requires the claimant be furnished with a copy of the report, failure to comply does not automatically require a continuance. In this case, defendants\u2019 failure to provide the report is not reversible error. Error to be reversible must be prejudicial. State v. Wright, 84 N.M. 3, 498 P.2d 695 (Ct.App.1972).\nA review of the report does not suggest any prejudice to plaintiff in not having it before trial. Dr. Schultz did not recommend psychological testimony because he believed plaintiff was suffering from that problem; he recommended it in order \u201cto see if we are dealing with any type of significant functional overlay.\u201d (Emphasis added.) Dr. Schultz, like other physicians who had examined plaintiff, could find no basis for his complaints. The recommendation for psychological testing, as with other recommendations made, was not suggestive of an opinion of the existence of other alternative sources for the complaints. The clear import of the letter indicates that all of the recommendations were made in an effort to try and solve an enigmatic problem: What is the basis for plaintiff\u2019s complaints? Undoubtedly, the lack of any indication of prejudice in the report prompted the trial court to admit it into evidence. Plaintiff did not object.\nIn answering plaintiff\u2019s claims, we note that plaintiff never requested a copy of the report; that Dr. Schultz\u2019s report was not surprise evidence offered by the defense at trial; that the record clearly shows that it was plaintiff, not the defense, who brought up the report; that Dr. Miller did not rely on the report in formulating his opinion; and that there is no indication the trial court relied on the report in deciding the issues.\nThose factors, alone or cumulatively, distinguish this case from Camp v. Bernalillo County Medical Center, 96 N.M. 611, 633 P.2d 719 (Ct.App.1981), and other cases relied on by plaintiff. See, e.g., Springett v. St. Louis Independent Packing Co., 431 S.W.2d 698 (Mo.Ct.App.1968). Moreover, the proper procedure, as reflected in several of the cases, is to refuse admission of the nondisclosed evidence. See, e.g., Springett. That would have been proper here, but defendants did not offer the report and had no intention of doing so. Of course, if their failure to provide a copy was intentional and willful, proper sanctions are available under the Code of Professional Conduct and under NMSA 1978, Civ.P. Rule 37 (Repl.Pamp.1980). We are not concerned here with sanctions, only with the question of whether plaintiff should have been granted a continuance.\nWe disagree that plaintiff was prevented from adequately preparing for trial. He and his counsel were aware of the examination in October 1985, yet took no steps to seek information as to the results either by discovery or motion, a factor considered in several of the cases cited by plaintiff. We do agree that plaintiff has a right to full access to all information regarding his medical condition. Nothing prevented plaintiff from obtaining this in the five-month span between the examination and trial.\nFinally, it has long been the rule that denial of a motion for continuance is discretionary and, absent clear abuse, an appellate court will not reverse. Albuquerque National Bank v. Albuquerque Ranch Estates, Inc., 99 N.M. 95, 654 P.2d 548 (1982). Plaintiff argues he has no obligation to demonstrate abuse in the form of prejudice. We disagree. Given that plaintiff made no effort to obtain the report, that it was not utilized as evidence against plaintiff, and that the information contained therein was insubstantial, we are unable to say the trial court abused its discretion in denying plaintiffs request for a continuance.\nThe judgment of the trial court is affirmed.\nIT IS SO ORDERED.\nMINZNER and FRUMAN, JJ., concur.",
        "type": "majority",
        "author": "BIVINS, Judge."
      }
    ],
    "attorneys": [
      "Roger V. Eaton, Messersmith, Eaton & Keenan, Albuquerque, for plaintiff-appellant.",
      "Randal W. Roberts, Farlow, Simone, Roberts & Weiss, P.A., Albuquerque, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "728 P.2d 1366\nFreddie SANCHEZ, Plaintiff-Appellant, v. NATIONAL ELECTRIC SUPPLY CO., Employer, and State Farm Insurance Co., Insurer, Defendants-Appellees.\nNo. 9315.\nCourt of Appeals of New Mexico.\nOct. 30, 1986.\nRoger V. Eaton, Messersmith, Eaton & Keenan, Albuquerque, for plaintiff-appellant.\nRandal W. Roberts, Farlow, Simone, Roberts & Weiss, P.A., Albuquerque, for defendants-appellees."
  },
  "file_name": "0097-01",
  "first_page_order": 137,
  "last_page_order": 140
}