Opinion
No. CV 01 0064871
January 29, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S OBJECTION TO DEFENDANT'S REQUEST FOR AN INDEPENDENT MEDICAL EXAMINATION, #111
The plaintiff has filed an objection to a request of the defendant for an independent medical examination of the plaintiff pursuant to Practice Book § 13-11(b). The basis for the plaintiff's objection is (1) she will incur a financial hardship and inconvenience when she wants to depose the doctor who makes his practice in Washington, D.C., and (2) there are several neurologists in northeastern Connecticut that could perform the examination on behalf of the defendant. The court heard oral argument on the objection on October 20, 2003.
The plaintiff alleges in her complaint that as a result of the defendant's negligence a rack of shelving collapsed, struck and pinned her. As a result of this incident, she is claiming that she sustained multiple injuries, including an injury of the left shoulder, with AC joint separation; impingement syndrome; traumatic bursitis/tendinitis; myofascial pain syndrome; bilateral occipital nerve neuralgia; occipital headaches; and low back, cervical and thoracic strain. It is further alleged that the plaintiff's injuries are permanent and that she suffered, and will in the future continue to suffer physical and mental pain.
On August 28, 2003 the defendant, pursuant to Practice Book § 13-11(b), filed a request for an independent medical examination of the plaintiff by Dr. James Merikangas. The defendant contends as a result of her injuries the plaintiff has sought treatment from a neurologist, and there is a psychological/emotional overlay to some of the plaintiff's symptoms. The defendant has, therefore, proffered an examination by Dr. Merikangas, who is board certified in both neurology and psychiatry. Although Dr. Merikangas now practices in Washington, D.C., he formerly practiced in Connecticut. The defendant has agreed that the independent medical examination may be performed anywhere in Connecticut, including the plaintiff's counsel's office and has further agreed to make Dr. Merikangas available for his deposition in Connecticut if the plaintiff chooses to depose him.
The issue of an objection to medical examinations has been considered by the superior court on numerous occasions. The results have varied due to the seemingly contradictory sentences of the statute which authorizes independent medical examinations. General Statutes § 52-178a provides: "In an action to recover damages for personal injuries, the court or judge may order the plaintiff to submit to a physical examination by one or more physicians or surgeon. No party may be compelled to undergo a physical examination by any physician to whom he objects in writing submitted to the court or judge." The first sentence authorizes the court to order an independent medical examination while the second sentence allows a plaintiff to refuse.
There are a number of superior court decisions trying to resolve this conundrum but no binding appellate authority. There is agreement that the statute clearly allows for the court to order an independent medical examination. The sticking point arises when the court is asked to interpret the second sentence allowing for the plaintiff's refusal. Is the right of the plaintiff to refuse such an examination absolute or can the court look to the reasonableness of the objection in determining the outcome of the objection? The statute as it exists today (which has not been amended since its enactment in 1965) is silent on this issue.
A technical revision was made by Public Acts, 1982, No. 82-160, § 83.
Two recent decisions have tackled this issue and have extensively discussed the legislative history behind the statute. In Privee v. Burns, 46 Conn. Sup. 301, 749 A.2d 689 (1999), the court found that General Statutes § 52-178a gives the plaintiff an absolute right to refuse to undergo a physical examination. When the legislation was originally proposed and passed by the house of representatives, the statute contained language which allow a plaintiff to object for good cause shown. When the senate discussed the statute, an amendment was proposed and adopted which made significant changes to the proposed statute and deleted the provision for good cause. Thus, the court concluded that the correct result would be that there could be no examination of the plaintiff for whatever reason.
See e.g., Privee v. Burns, 46 Conn. Sup. 301, 749 A.2d 689, 25 Conn. L. Rptr. 27 (1999) (Blue, J.), and Wallace v. Commerce Properties, Inc., Superior Court, judicial district of New Haven, Docket No. CV95 377552, 26 Conn. L. Rptr. 25 (November 24, 1999) (Alander, J.), where each of the courts discuss their own interpretation of the legislative history and many of the trial bench decisions to date.
The court in Privee also gave a thorough analysis of two officially reported trial court opinions construing § 52-178a. "[The] decisions LeBlanc v. Cambo, 26 Conn. Sup. 338, 223 A.2d 311 (1966) (Mignone, J.), and Mulligan v. Goodrich, 28 Conn. Sup. 11, 246 A.2d 206 (1968) (Parskey, J.), have remained influential in spite of their age and the fact that they reach very different conclusions concerning [§ 52-178a]." Id., 317.
The court did provide for "aggressive judicial measures" when the plaintiff exercises an objection to an independent examination by every physician. The solution would not be to compel the plaintiff to submit to the exam, but to order that, "if the plaintiff does not withdraw [the] objection, any expert evidence that [the plaintiff] offers will be excluded. The plaintiff can still claim injury — [he/she] and other lay witnesses can take the stand and give factual descriptions of [the] injuries — but [he/she] will not be permitted to buttress [the] lay testimony with expert evidence. This proportionate response will even the playing field while avoiding the necessity of violating the statute by ordering an examination to which the plaintiff has objected." Id., 336.
In Wallace v. Commerce Properties, Inc., Superior Court, judicial district of New Haven, Docket No. 95 377552, 26 Conn. L. Rptr. 25 (November 24, 1999) (Alander, J.) the court also agreed that the second sentence gave a plaintiff the absolute right not to be compelled to undergo a physical examination, but also held that the first sentence authorized a court to enter an order granting a defendant's request for such examination and to limit the plaintiff's right to object to grounds that are reasonable. The court would have the authority to consider the nature and circumstances of the defendant's request for an examination and the reasons for the plaintiff's objection and enter whatever order as is just, including overruling the plaintiff's objection to a particular physician. The court could not, however, physically compel the plaintiff to submit to an examination by a physician to whom he/she objects to in writing. Rather, the court may impose sanctions in accordance with Practice Book § 13-14 should the plaintiff fail to comply with a court order to undergo a physical or mental examination.
The court in Wallace calls this the "pragmatic approach" which limits the plaintiff's right to object to grounds that are reasonable. A number of courts have followed this approach. See e.g., Larsen v. New, 47 Conn. Sup. 536, 812 A.2d 220, 33 Conn. L. Rptr. 433 (2002); Villoch v. Reznikoff, Superior Court, judicial district of Hartford, Docket No. 00 0597560, 31 Conn. L. Rptr. 734 (April 12, 2002) (Beach, J.); Moore v. Minton, Superior Court, judicial district of New Haven, Docket No. 364211, 23 Conn. L. Rptr. 109 (October 8, 1998) (Silbert, J.); Fabozzi v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. 245450 (October 25, 1988) (Corradino, J.).
"Should the plaintiff fail to heed the court's order, the court may consider appropriate sanctions pursuant to Practice Book § 13-14, such as awarding the defendant his costs and reasonable attorneys fees, entering a nonsuit against the plaintiff or precluding the plaintiff from introducing his own expert medical witness. Practice Book § 13-14(a) . . . provides that `If any party . . . has failed to submit to a physical or mental examination . . . the judicial authority may, on motion, make such orders as the ends of justice require' and Practice Book § 13-14(b) . . . gives examples of the types of orders that the court may enter. In light of the language of the statute and the Practice Book, the court may not, however, hold the plaintiff in contempt in order to coerce the plaintiff to submit to a physical examination." (Citations omitted.) Id.
"Although the courts in Privee and Wallace disagree about the significance of the statute's legislative history and whether a plaintiff objecting to a medical examination must have a good faith or reasonable basis for objecting to a particular medical examiner, the ultimate effect of both court's decisions was similar. Under either . . . approach, a plaintiff objecting to an independent medical examination may effectively thwart a defendant from obtaining such an examination; but in doing so, a plaintiff subjects itself to the possibility of sanctions that may just as effectively prevent it from prosecuting its case as that refusal hinders its opponent's ability to defend." (Citations omitted.) Larsen v. New, 47 Conn. Sup. 536, 537-38, 812 A.2d 220, 33 Conn. L. Rptr. 433 (2002).
This court, as did the Larsen court, agrees with the approach taken in Wallace. Accordingly, the court will begin by considering the reasonableness of the plaintiff's stated reason for objecting to a medical examination by Dr. Merikangas. The plaintiff offers two reasons in her objection to sustain her objection: (1) the plaintiff will incur a financial hardship and inconvenience when she wants to depose Dr. Merikangas who makes his practice in Washington, D.C. and (2) there are several neurologists in northeastern Connecticut that could perform the examination on behalf of the defendant.
There exists no requirement in either the Practice Book or in General Statutes § 52-178a that the proposed physician practice within Connecticut, let alone practice locally. "The issue, therefore, is whether an objection on that basis is reasonable in light of the nature of the request and the underlying circumstances." Wallace v. Commerce, supra, CV 95-377552.
In both Wallace and Larsen, the plaintiff objected to an independent medical examination arguing that the defendant's physician was not independent, the physician was biased. In both of these cases, the court overruled the objection. In the opinion of this court, an objection premised in bias of a witness is far more substantial than an objection based on the location of the physician. The plaintiff's objection becomes even less significant in light of the defendant's offer to have Dr. Merikangas do the examination anywhere in Connecticut and to have Dr. Merikangas available in Connecticut for his deposition.
The plaintiff, therefore, will not incur a financial hardship or inconvenience if Dr. Merikangas is the physician who performs the examination for the defendant. The court finds that the plaintiff's objection to an independent medical examination by Dr. James Merikangas is unreasonable.
The plaintiff in her memorandum of law in support of objection to independent medical examination raises the issue that Dr. Merikangas is board certified in neurology and psychiatry. According to the defendant at oral argument, this is one of the reasons that he was chosen by the defendant for the examination. The plaintiff in her memorandum objects to a psychiatric examination and argues that the only claim is for physical injuries. The plaintiff also attempts to qualify her objection by stating that should the court sustain her objection but enter orders precluding her expert testimony because of her objection, she would be willing to be examined by Dr. Merikangas, but limit the exam in scope to her physical condition. At this time, the court declines to rule on the scope of the examination. A plaintiff's objection to an independent medical examination must be in writing "specifying to which portions of said request objection is made and the reasons for said objection." Practice Book § 13-11(b). The plaintiff's objection specified its reasons for the objection as the aforementioned hardship and inconvenience and the availability of other neurologists who are located in Connecticut. The plaintiff only raised the issue of the scope of the examination in her memorandum. The objection to the scope of the examination has therefore not been properly raised.
Our appellate and supreme courts have consistently stated their position with regard to strict adherence to our Practice Book and the requirement that grounds be alleged in the motion itself. See, e.g., Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987). "Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief even in these iconoclastic days, that no orderly administration of justice is possible without them . . . Our rules of practice contain provisions for the framing of issues . . ." (Citations omitted; internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn. 351, 363, 828 A.2d 129, appeal denied, 266 Conn. 911, 832 A.2d 70 (2003).
The court concurs with the holding in Wallace that the second sentence of § 52-178a precludes the court from issuing an order compelling the plaintiff to undergo an examination by Dr. Merikangas. If the plaintiff refuses the examination by Dr. Merikangas, the defendant may move the trial court for an order of sanctions against the plaintiff, which may include cross-examination, comment by counsel to the jury about that refusal, exclusion of expert testimony from the plaintiff, or other sanctions that may be reasonable and appropriate under the circumstances.
The plaintiff caused an objection to the independent medical examination due to financial hardship and the availability of other neurologists in Connecticut. The defendant has ameliorated the plaintiff's objection as to the financial hardship, and the court is unwilling to allow the plaintiff to effectively choose another neurologist for the defendant exam.
The plaintiff's objection to the requested exam is overruled, with the understanding that she is not compelled by the court to submit to the examination. If she does not attend, the defendant is entitled to cross-exam the plaintiff on this issue, to request an adverse inference and comment in final argument, and to seek an order precluding the plaintiff from offering her own expert testimony.
The defendant is directed to re-notice his request for an independent medical examination specifying time and place under the same terms and conditions as the notice dated August 28, 2003.
SWIENTON, JUDGE.