Opinion
No. CV-04-5000029S
October 29, 2007
MEMORANDUM OF DECISION
This is a matter arising out of the short calendar that has been addressed and analyzed in different courts, but apparently never at the Appellate level. The issue involves the ongoing contradictory phraseology within the General Statute § 52-178a and as expanded in Practice Book § 13-11, involving the physical/mental examination of a party to a civil action. The conflict arises in that there is the ongoing obligation for a disclosure and production (Practice Book § 13-15) by both sides in any civil action as being part of the discovery process, to include any type of physical or mental examination as requested and as allowed under our rules of practice. The contradiction arises in both the Statute and Practice Book section, to wit: § 13-11(b): "No plaintiff shall be compelled to undergo a physical examination by any physician to whom he or she objects in writing." The language in the General Statute is practically identical.
The recent cases from the Superior Court have analyzed and re-analyzed with some level of frustration the purpose and intent of the respective discovery procedures without finality. Sherman v. Axelrod, 49 Conn.Sup. 265, 267-70 (2005) [ 38 Conn. L. Rptr. 721] sets out the case law history concerning this "conundrum."
The court cannot become a participant in coercing a party, in this case the plaintiff, into submitting to a physical exam that may or may not be intrusive, embarrassing and/or even assaultive in nature by a physician who in the eyes of that plaintiff is "hostile" and not operating in an objective or "independent fashion" and, in fact, is in the employ of the opposing party. The stricture on preventing any such imposed physical examination is understandable and yet creates the inherent conflict of limiting full disclosure and discovery of specifically what is the nature of the physical injury that the plaintiff may be claiming. The defendant in this case has an absolute right under Practice Book procedures and in the sense of judicial fairness to inquire and determine for their own purposes the nature, the scope and even the etiology of the plaintiff's claimed injuries. This court will not re-analyze what has already been said by other courts. The citations are well established. Larsen v. New, 47 Conn.Sup. 536 (2002) [ 33 Conn. L. Rptr. 433]; Privee v. Burns, 46 Conn.Sup. 301 (1999) [ 25 Conn. L. Rptr. 27]; Wallace v. Commerce Properties, Inc., 1999 WL 1207124 (Conn.Super., Alander, J., 1999) [ 26 Conn. L. Rptr. 27].
The defendant Bjorlin has filed an extensive reply to the plaintiff's objection to the requested medical exam.
The basis of the plaintiff's objection to the proposed physical examination by a Dr. Andrew N. Bazos of Brookfield, Connecticut is that such an exam would not be conducted in an objective fashion and therefore not be truly independent because Dr. Brazos is supposedly known in the community as being a defense-oriented doctor, i.e., someone who works on a regular basis for defense counsel and their representatives and clients. It has been indicated in the various cases that such an objection is not validly based. There is no authority indicated with any certainty that good cause or good faith has to be the basis for any such objection and, therefore, the courtesy continues to be extended to any plaintiff who does not want to submit to any physical exam that they would find objectionable for any reason. In light of the wide range of opinions held from various courts concerning this issue, the Practice Book empowers the court to "make such order as is just in connection with the request." Practice Book § 13-11b.
This court will now attempt to fashion such an order that balances the interest of both parties to this action and leaves the final resolution of this issue to the trial court. Therefore, it is hereby Ordered as follows:
1. If the plaintiff will not submit to a physical examination by the said Dr. Bazos, then the following remedies are available to the defendant:
a. Another doctor can be nominated by the defendant to conduct this physical exam of the plaintiff. The entire expense and all costs associated with this second proposed exam will be paid for by the plaintiff exclusively.
b. The plaintiff has submitted six (6) medical doctors qualified to conduct a so-called "independent medical examination"; the defendant may choose any one of those six doctors proposed in the plaintiff's objection dated September 17, 2007. Such physical exam will be conducted at the sole and exclusive expense of the plaintiff.
These proposed orders are entered without prejudice to either party, but are done with the sole intent of facilitating and expediting the discovery process for both parties.