Opinion
Civil Action No. 03-BB-114 (PAC).
January 10, 2005
ORDER
This matter is before me on the Plaintiffs' Request for Clarification of Magistrate [Judge's] November 8, 2004[,] Order (the "Motion"), filed November 30, 2004. I held a hearing on the Motion on December 10, 2004. The Motion is GRANTED, and my previous Order granting the defendant's Motion to Require Attendance at F.R.C.P. 35 Independent Medical Examination Appointments (the "Motion for IME") is clarified as specified below.
This case arises from injuries claimed by the plaintiff under the following circumstances:
On or about July 8, 2000, Jason Borde drove a loaded glass truck to the Plaintiff's place of business, Precise Glass, Inc., in Boulder County, Colorado. During the unloading process the load on the side of the vehicle that the Plaintiff was standing near fell over injuring her. The driver and other employees of OldCastle Glass were negligent in the loading of the glass truck, and Jason Borde was negligent in unloading the glass such that it fell onto Plaintiff Jerri Van Sice.
Scheduling Order, entered March 5, 2004, at p. 2. As a result of the accident, the plaintiff claims the following injuries:
[A] comminuted fracture of the right distal femur, compression fractures of L3, and a laceration to the left foot and knee injury. She also claims cognitive impairment. She had surgery including internal fixation and a rod of the right distal femur, post surgical blood clotting requiring medical care, emotional pain and suffering, surgical scarring. She has sustained permanent impairment of her leg, knee and back. Past and future earning loss and impairment in the amount of $25,000 per year, although there likely will be expert testimony on impairment of earning capacity.Id. at p. 3.
In its Motion for IME filed October 1, 2004, the defendant stated that the plaintiff claims to have sustained the following injuries as a result of the accident: "a broken femur, closed head, vision problems, PTSD, depression, jaw, right knee, neck, unstable pelvis and sacrum, headaches, and psychological problems." Motion for IME at ¶ 1.
The plaintiff has indicated the need for expert testimony in the fields of (1) orthopedic surgery; (2) internal medicine; (3) blood clotting; (4) vocational assessment; (5) and economics concerning matters of past and future economic losses. Id. at p. 4. Although I am not informed of all of the plaintiff's treating physicians, I do know at least that she is being treated by (1) Dr. Jan Lemon, a neuropsychologist; (2) Dr. Mary Ann Keatley concerning cognitive issues; and (3) Dr. Rebecca Hutchins concerning vision problems.
On October 1, 2004, the defendant filed its Motion for IME seeking an order requiring the plaintiff to appear for independent examinations by the following:
(1) Dr. Richard Evans, an orthopedist;
(2) Dr. Bruce Wilson, a neuro-opthalmalogist;
(3) Dr. Donald Taylor, a neuro-psychologist;
(4) Dr. Stephen Moe, a psychiatrist; and
(5) An unidentified examiner on the staff of HealthSouth to perform a functional capacity examination.
The plaintiff has submitted to three of the five examinations — by Drs. Evans, Wilson, and Taylor. At issue now is whether it was my intention in granting the defendant's Motion for IME to require the plaintiff to submit to all five requested examinations and, in particular, whether I intended to order the plaintiff to submit to a psychological examination by Dr. Moe and a functional capacity examination by HealthSouth.
The matter of physical and mental examinations is governed by Rule 35, Fed.R.Civ.P., which provides in relevant part:
(a) Order for Examination. When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
First, the plaintiff objects that "five (5) exams is too many." Motion at ¶ 2. I do not agree. Rule 35 does not limit the number of examinations. Shirsat v. Mutual Pharmaceutical Co., Inc., 169 F.R.D. 68, 72 (E.D. Pa. 1996); Peters v. Nelson, 153 F.R.D. 635, 637 (N.D. Iowa 1994). Rather, "[e]ach request for an independent medical examination must turn on its own facts, and the number of examinations to which a party may be subjected depends solely upon the circumstances underlying the request."Shirsat, 169 F.R.D. at 7. Numerous examinations may be required where varied injuries in several branches of medical science are claimed, requiring review and testimony by specialists in each of the several branches. See, e.g., McKitis v. Defazio, 187 F.R.D. 225, 227 (D. Md. 1999) (stating that "[p]laintiff has identified no authority to support her position that this Court is restricted to ordering only a single examination in the circumstances where plaintiff asserts claims for multiple injuries which fall within the scope of several medical specialties, and there is clear authority against her position. This is especially true in light of plaintiff's apparent intent to call an orthopedist, a neurologist, and internist, a neurosurgeon, a plastic surgeon and two psychologists as expert witnesses at trial"); Sauer v. Burlington Northern Railroad Co., 169 F.R.D. 120, 124 (D. Minn. 1996) (noting that the plaintiff was examined or treated by nine physicians and that there was "no unevening of the playing field in allowing the Defendant an orthopedic consult"); Bowing v. Delaware Rayon Co., 190 A. 567, 568-69 (Del. 1937) (finding that the various injuries claimed by the plaintiff justified ordering examinations by five experts in specialized areas of medicine). I am aware, however, that "`the number of examinations should be held to the minimum necessary considering the party's right to privacy and the need for the court to have accurate information.'" Id., quoting Schlagenhauf v. Holder, 321 F.2d 43, 51 (7th Cir. 1963), vacated on other grounds, 379 U.S. 104 (1964).
In this case, I find that good cause exists to order the psychiatric examination by Dr. Moe and the functional capacity examination by HealthSouth. With respect to the psychiatric examination, the plaintiff has put in issue her mental health by alleging emotional pain and suffering, post traumatic stress disorder, depression, and psychological problems. Nor does the fact that the defendant already has been allowed to have the plaintiff examined by a neuro-psychologist require a different result. The neuro-psychologist examined the plaintiff in connection with and will testify about the plaintiff's claimed cognitive injuries; the psychiatrist, by contrast, will examine the plaintiff and is expected to testify about the mental health injuries claimed in the form of emotional pain and suffering, post traumatic stress disorder, depression, and psychological problems. Consequently, the examination by Dr. Moe is not needlessly duplicative and, instead, is necessary to allow Dr. Moe to arrive at his expert opinion. As the court explained inPeters v. Nelson, 153 F.R.D. at 639, where it also was confronted by a request for separate IMEs by a psychiatrist and a neuropsychologist:
The tests they apply and the manner in which they evaluate their results are not identical and are not even likely to be based on the same data, such that one doctor could rely on data gathered by another, and arrive at an expert opinion without a personal examination of the plaintiff.
Good cause also exists to require the plaintiff to submit to a functional capacity examination. The plaintiff claims lost past and present wages and a diminished ability to work. Plaintiff's counsel stated at the argument on the Motion that the plaintiff will call at trial a vocational rehabilitation expert who may opine based on medical records that as a result of the accident the plaintiff suffers from limitations that impair her ability to be employed. The defendant should be allowed to examine the plaintiff's abilities in order to challenge that testimony.University of Colorado v. Simpson, 220 F.R.D. 354, 363 (D. Colo. 2004) (stating that "[t]he purpose of the Rule 35 examination is to `level the playing field' for the parties").
The plaintiff's argument that a functional capacity examination is not within the contemplation of Rule 35 is unfounded. In particular, the Advisory Committee Notes to the 1991 amendments to the rule state that those amendments were intended to allow examinations by other "certified or licensed professionals, such as dentists or occupational therapists, who are not physicians or clinical psychologists, but who may be well-qualified to give valuable testimony about the physical or mental condition that is the subject of dispute." Other courts have ordered parties to submit to testing by vocational-rehabilitation experts pursuant to Rule 35(a). See, e.g., Fischer v. Coastal Towing, Inc., 168 F.R.D. 199, 201 (E.D. Tex. 1996); Stewart v. Burlington Northern Railroad Co., 173 F.R.D. 254, 256 n. 2 (D. Minn. 1995).
Finally, the plaintiff argues that she should not be required to submit to the functional capacity examination because she has submitted an affidavit "setting forth her legitimate concern that a [functional capacity examination] would be potentially harmful to her." Specifically, the plaintiff's affidavit states:
Defendants have also requested that I undergo a Functional Capacity Test which could take up to two days and would involve sitting, standing, walking, crouching, bending and lifting. I am simply incapable of performing most of these tests due to the problems with back and knee pain and stiffness and because of the numbness in my hands and arms. I am very worried that this kind of testing will be physically and mentally harmful.
Plaintiffs' Response to Defendant's Motion to Require Attendance at Fed.R.Civ.P. 35 Independent Medical Examination Appointments (the "Response to Motion for IME"), filed October 25, 2004, at Exh.2 (Affidavit of Jerri Van Sice, hereafter the "Van Sice Aff.") ¶ 5.
The plaintiff's affidavit does not identify with any particularity how the functional capacity examination will be harmful, and it is not supported by an affidavit or other evidence from a doctor or other health care professional. InPena v. Troup, 163 F.R.D. 352, 355 (D. Colo. 1995), this court adopted a burden-shifting approach to decide cases where a party claims that an independent examination may be harmful:
The Court agrees with the jurisdictions which have adopted [the Lefkowitz v. Nassau County Medical Center, 462 N.Y.S.2d 903 (1983)] burden-shifting approach to decide cases such as this one. Under that standard, Plaintiffs must first demonstrate that it is prima facie potentially dangerous for [the plaintiff] to submit to the [requested examination].
* * *
[Once] Plaintiffs have satisfied their burden, the burden shifts to Defendant to demonstrate the need for the [requested examination] and its safety.
In the Pena case, the plaintiff met her burden of demonstrating the potential risk associated with the requested MRI under sedation or general anesthesia through the presentation of two affidavits by two medical doctors, one an anesthesiologist and the other a neurologist. I agree with the defendant here, however, that in this case the plaintiff's unsupported and self-serving affidavit is insufficient to establish that the requested examination is dangerous or to shift the burden to the defendant to show that the requested examination is safe.
Finally, here as in Peters v. Nelson, 153 F.R.D. at 639, the "plaintiff's allegations of injury provide good cause for defendant to pursue adequate examinations to determine the existence and extent of plaintiff's injuries," and the plaintiff may not "raise the very condition of which she complains to defeat [the defendant's] ability to prove that they did not cause the condition."
Strictly construed, Rule 35(a) would require that this order specify the "time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." The Motion for IME sufficiently specifies the place, manner, conditions, and scope of the examinations, and those matters are incorporated here. The parties shall confer and agree to a reasonable time for the examinations, to be completed within 30 days of this order. In addition, the defendant shall identify by name and with reference to his or her qualifications within 10 days of this order the person or persons to conduct the functional capacity examination. The functional capacity examination shall not exceed seven hours in length and shall be completed in a single day, unless the plaintiff elects otherwise. I caution the parties that they should cooperate in good faith to agree to these matters. If they cannot, I am prepared to establish all remaining matters by order. See Sauer v. Burlington Northern Railroad Co., 169 F.R.D. at 124 n. 4.
IT IS ORDERED that the Motion is GRANTED, and my Order of November 8, 2004, is clarified to specify that I am requiring Jerri Van Sice to submit to the five examinations identified in the Motion for IME, including the examination by Dr. Moe and a functional capacity examination by HealthSouth. The functional capacity examination shall not exceed seven hours in length and shall be completed in a single day, unless the plaintiff elects otherwise.