Lunsford v. Union Pacific Railroad Company

Filing 20

ORDER granting 9 Union Pacific's Motion for an Independent Medical Examination; pltf's objection to permitting Dr. Peeples to conduct the examination is overruled. Signed by Chief Judge J. Leon Holmes on 6/28/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
ROBERT LUNSFORD
v.

PLAINTIFF
No. 4:10CV01095 JLH

UNION PACIFIC RAILROAD COMPANY

DEFENDANT

ORDER
Union Pacific Railroad Company has filed a motion for an independent medical examination
of Robert Lunsford pursuant to Rule 35 of the Federal Rules of Civil Procedure. Lunsford brought
this action pursuant to the Federal Employers Liability Act, 45 U.S.C. § 51 et seq., alleging that he
suffered cumulative trauma injuries over thirty years of employment with Union Pacific, that have
resulted in premature disability to his neck, shoulders, elbows, lower back, spine, knees, and legs.
Lunsford concedes that he has placed his physical condition in controversy. He does not object to
an independent medical examination but he does object to Union Pacific’s choice of Dr. Earl Peeples
as the physician to conduct the examination. Lunsford contends that Dr. Peeples is biased in favor
of corporations, insurance carriers, and defense attorneys, and that he is biased against plaintiffs.
Rule 35(a) provides that the court ordered examination must be conducted “by a suitably
licensed or certified examiner.” There is no doubt that Dr. Peeples is licensed to practice medicine
in the State of Arkansas and has engaged in an orthopedic practice for a number of years. Lunsford
has attached to his motion a printout of more than one hundred cases, including workers’
compensation cases, in which Dr. Peeples’s name appears. Lunsford does not contend that the
testimony of Dr. Peeples has ever been excluded from any trial. He cites one opinion from the
Arkansas Court of Appeals, a dissenting opinion from a commissioner of the Arkansas Workers’
Compensation Commission, and two opinions from administrative law judges of the Arkansas

Workers’ Compensation Commission in support of his argument that Dr. Peeples is biased in favor
of corporations and insurance companies. The Arkansas Court of Appeals opinion cited by Lunsford
was one in which a claimant appealed a decision of the Arkansas Workers’ Compensation
Commission limiting her permanent impairment rating to twenty percent to her left hand.
Dr. Peeples had testified that the claimant should be assessed a twenty-five percent impairment
rating, but the Commission rejected that impairment rating as overstating the claimant’s degree of
disability, and the court of appeals affirmed, finding that the medical opinion of Dr. Peeples in favor
of the claimant was not supported by objective medical evidence. Barron v. Creative Foods, 2004
WL 33621, *5 (Ark. App. Jan. 7, 2004). Lunsford also cites a dissenting opinion by the
Commissioner of the Arkansas Workers’ Compensation Commission criticizing Dr. Peeples. West
v. Stuttgart Reg. Med. Ctr., 2009 WL 2005120, Claim No. F800831 (June 12, 2009). While the
Commissioner dissenting in that case was critical of Dr. Peeples, the majority of the Commission
in that decision relied on the opinion of Dr. Peeples in reaching its result. The two opinions by
administrative law judges were opinions in which the ALJs did not find the opinions of Dr. Peeples
to be persuasive. In addition to those opinions, Lunsford has attached to his motion a letter that
Dr. Peeples wrote in 2004 to representatives of a number of governmental entities and corporations,
including several insurance companies, stating that due to arthritis in his hands he would no longer
be engaging in surgery but was interested in performing medial evaluations and providing
professional testimony. Lunsford also has attached two complaints made to the Arkansas State
Medical Board several years ago about Dr. Peeples’s work in performing independent medical
examinations. Lunsford does not contend that Dr. Peeples has been disciplined by the Arkansas
State Medical Board. In addition to that information, Lunsford has attached deposition testimony

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by Dr. Peeples in which he stated that he had earned approximately $135,000 in collections on
independent medical examinations and other evaluations of that type in a given calendar year and
an order from a judge of the Pulaski County Circuit Court granting a motion for an independent
medical examination but denying, without explanation, the defendant’s request for the examination
to be conducted by Dr. Peeples.
While Union Pacific is entitled to a Rule 35 examination, as Lunsford concedes, the Court
“retains considerable discretion to establish the manner, conditions and scope of the examination.”
Simpson v. Univ. of Colorado, 220 F.R.D. 354, 363 (D. Colo. 2004). The Court is not bound by the
defendant’s selection of a particular physician to perform the examination. Id. Generally, however,
courts have rejected efforts by plaintiffs to disqualify a physician based upon allegations of bias
when those allegations are based on the fact that the physician generally is retained by the defense
side of a lawsuit. McKitis v. Defazio, 187 F.R.D. 225, 227-28 (D. Md. 1999); Duoponce v. Drake,
183 F.R.D. 565, 566 (D. Colo. 1998); Duncan v. Upjohn Co., 155 F.R.D. 23, 26 (D. Conn. 1994);
Great W. Life Assur. Co. v. Levithan, 153 F.R.D. 74, 77 (E.D. Pa. 1994); Powell v. United States,
149 F.R.D. 122, 124 (E.D. Va. 1993); Looney v. Nat’l R.R. Passenger Corp., 142 F.R.D. 264, 265
(D. Mass. 1992). In all of these cases, the courts held that issues regarding bias and interest can be
explored in cross examination at trial but are not grounds for precluding the defendant’s choice of
physician for an independent medical examination. As the Court in Looney noted, “Defendants have
no say in determining what physician plaintiff chooses as his or her expert witness. It follows that
plaintiff’s ability to object to an expert physician chosen by the defendant should be rather limited
with any questions of bias or prejudice of either side’s chosen expert being left to full exploration
at trial.” 142 F.R.D. at 265 (citation omitted).

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Union Pacific’s motion for an independent medical examination is therefore GRANTED.
Document #9. Lunsford’s objection to permitting Dr. Peeples to conduct the examination is
overruled.
IT IS SO ORDERED this 28th day of June, 2011.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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