Meza et al v. Wacker Neuson Sales Americas LLC et al

Filing 41

ORDER: Defendant's motion for an independent medical examination pursuant to Rule 35(a)(2), Federal Rules of Civil Procedure 37 , is granted. The IME proceedings shall not be recorded. Plaintiff's guardian may not be present during the adm inistration of psychological testing. English/Spanish translation shall be provided by Dr. Killian without the participation of plaintiff's guardian. In light of the forgoing rulings, plaintiff's motion for a protective order 39 is moot and is denied. Signed by Judge H Russel Holland on 9/12/2018. (REK)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Antonio Meza, et al.,

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)
Plaintiffs, )
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vs.
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Wacker Neuson Sales Americas, LLC, et al.,
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Defendants. )
_______________________________________)

No. 2:18-cv-0574-HRH

ORDER
Motion to Compel Rule 35 Examination1
Defendant Wacker Neuson Sales Americas moves pursuant to Rule 35(a)(2),
Federal Rules of Civil Procedure, for an independent medical examination (“IME”) of
plaintiff Antonio Meza. The motion is opposed. Oral argument has been requested but is
not deemed necessary.
Plaintiffs do not oppose the appropriateness of an IME of plaintiff Antonio Meza.
The parties do disagree as to three matters:
(1)

That an audio recording of plaintiff’s examination be obtained;

(2)

That plaintiff’s legal guardian, Dora Meza, be present during
psychological testing; and

1

Docket No. 37.

Order – Motion to Compel Rule 35 Examination

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(3)

That Dora Meza be present at the examination to provide English/Spanish translation, plaintiff Antonio Meza being a Spanish speaker.

In responding to defendant’s motion, plaintiffs make reference to Arizona Civil
Rule 35(c). The scheduling of an IME is a procedural matter to which the federal rules
have application. The court declines to have reference to the state court rule in this
matter.
In ruling upon the instant motion, the court has had reference to the declaration of
defendant’s proposed examiner, Dr. Christopher Nicholls, Ph.D.2 Dr. Nicholls is a
clinical neuropsychologist with a degree in clinical psychology. Dr. Nicholls
recommends that, consistent with the National Academy of Neuropsychology and the
American Academy of Clinical Psychology policy, third parties should not be present
during the administration of psychological testing.3 Dr. Nicholls opines that plaintiff’s
seizures are well controlled by medication4 and that his office staff are trained in seizure
first aid if needed.5 Finally, Dr. Nicholls objects to the use of recording devices,
explaining that use of such equipment risks invalidating neuropsychological evaluations.
He states that his policy against recording is consistent with National Academy of
Neuropsychology and American Academy of Clinical Psychology positions.6

2

Motion to Compel Rule 35 Examination at 18, Docket No. 37.

3

Id. at 19, ¶ 7.

4

Id. at 20, ¶ 9.

5

Id. at 20, ¶ 10.

6

Id. at 20, ¶ 11.

Order – Motion to Compel Rule 35 Examination

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The court is not persuaded by the affidavit of plaintiffs’ legal assistant.7
Plaintiffs do not argue that a member of their legal staff should be present for the
examination. However, plaintiffs argue that the examination should be audio recorded.
The concern here is that Mr. Meza will be unable to relate to his attorneys what takes
place during the IME.
In Shepard’s Federal Practice Procedure Series, we read:
The examination should be conducted in accordance with
current medical practice in the diagnosis of similar cases not
involving litigation, and should cover all claims of injury
made by the plaintiff. The examiner may employ the
assistance of other specialists, technicians, and assistants as
may necessarily be required in the judgment of the examiner
in light of the examinee’s complaints. Such other persons
may be designated to assist as would be required in a similar
examination for diagnosis in the ordinary course of medical
practice. The person examined has no right to have the
examination tape recorded.
Shepard’s Federal Practice Procedure Series, 1 Discovery Proceedings in Federal Court
§ 18:07, 339 (3d ed. 1995) (citations omitted). For the proposition that there is no right to
have the examination tape recorded, defendant (as well as the quoted text) relies upon
Tomlin v. Holecek, 150 F.R.D. 628 (D. Minn. 1993). See also Meixing Ren v. Phoenix
Satellite Television (US), Inc., 309 F.R.D. 34, 36 (D.D.C. 2015) (“typical procedure is not
to create a recording of the examination”).
In a well crafted decision, the court in Tomlin, among other reasons, relies upon
the same proposition as Dr. Nicholls: “to require a recording of Dr. Aletky’s interview
would potentiate toward invalidating her evaluatory technique.” Tomlin at 631.
The court rejects the proposition that plaintiffs’ IME should be audio recorded.
7

Plaintiffs’ Response to Defendant’s Motion to Compel and Plaintiffs’ Motion for
Protective Order at 38 (Affidavit of Beatrias Casillas), Docket No. 39.
Order – Motion to Compel Rule 35 Examination

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It is argued on behalf of plaintiff Antonio Meza that Dora Meza, who is plaintiff’s
legal guardian, should be present “to help to prevent him from having a seizure[.]”8 But
Mr. Meza’s medical records show that his seizures are well controlled by medications.9
Dr. Nicholls has no objection to the presence of plaintiff’s guardian “during the clinical
interview and via the completion of various questionnaires[.]”10 Dr. Nicholls objects to
the presence of third parties during the administration of psychological testing.
The court is persuaded that the presence of plaintiff’s guardian, who is also a
plaintiff, during the administration of psychological testing could skew or invalidate the
results of that testing. The court credits Dr. Nicholls’ representation that he has staff
available to administer first aid if needed. Moreover, the court is confidant that
Dr. Nicholls will have no objection to plaintiff’s guardian remaining nearby during the
psychological testing so that she might be called upon if deemed necessary.
Finally, plaintiffs would have the court require the presence of plaintiff Antonio
Meza’s guardian during psychological testing because plaintiff is principally a Spanish
speaker and in need of English/Spanish translation assistance. Dr. Nicholls avers that he
will be joined in examining plaintiff by post-doctoral fellow, Dr. Jennifer Killian, who is
a fluent Spanish speaker with a doctorate in psychology.11
The assistance of Dr. Killian at plaintiff’s IME is consistent with the authority
cited above. There are two practical reasons why the court prefers Dr. Killian to
plaintiff’s guardian concerning English/Spanish translation. First, Dr. Killian will have
8

Id. at 1.

9

Motion to Compel Rule 35 Examination at 20, ¶ 9, Docket No. 37.

10

Id. at 19, ¶ 6.

11

Id. at 20, ¶ 8.

Order – Motion to Compel Rule 35 Examination

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no interest in the outcome of this case and will have no inclination to interpret the
substance of plaintiff’s responses as opposed to translating what is said. Second, as a
person who is receiving specialized training in neuropsychology, Dr. Killian will be in a
position to aptly translate from English to Spanish and vice versa psychological concepts
with which plaintiff’s guardian is unlikely to be familiar.
Plaintiff’s guardian may not be present during the administration of psychological
tests.
Defendant’s motion for an independent medical examination pursuant to
Rule 35(a)(2), Federal Rules of Civil Procedure, is granted. The IME proceedings shall
not be recorded. Plaintiff’s guardian may not be present during the administration of
psychological testing. English/Spanish translation shall be provided by Dr. Killian
without the participation of plaintiff’s guardian.
In light of the foregoing rulings, plaintiffs’ motion for a protective order12 is moot
and is denied.
DATED at Anchorage, Alaska, this 12th day of September, 2018.

/s/ H. Russel Holland
United States District Judge

12

Docket No. 39.

Order – Motion to Compel Rule 35 Examination

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