Bayliss v. Economy Premier Assurance Company

Filing 16

ORDER imposing conditions regarding the physical examination of plaintiff. Signed by Judge Kristine G. Baker on 06/02/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
LINDA BAYLISS
v.

PLAINTIFF
Case No. 5:13-cv-00239-KGB

ECONOMY PREMIER
ASSURANCE COMPANY

DEFENDANT
ORDER

On May 13, 2014, the Court ordered that the physical examination of Ms. Bayliss
proceed and that Dr. Earl Peeples be permitted to perform the examination, subject to conditions
the Court would impose (Dkt. No. 12). The Court invited parties to object to the proposed
conditions set out by the Court in that Order. Defendant objected to the Court’s proposed
condition that:
At either party’s option, with the party who exercises the option bearing the
expense, a videographer or court reporter may be present during the medical
examination to make a sound recording only of the complete examination; there
will be no video recording of the examination. The videographer or court reporter
shall not interfere with Dr. Peeples’s examination. The videographer or court
reporter shall not ask questions of Ms. Bayliss or Dr. Peeples during the physical
examination. Counsel shall provide a copy of the sound recording to opposing
counsel.
(Dkt. No. 13). In support of its objection, defendant attached an article by Dr. Robert J. Barth
titled “Observation Compromises the Credibility of an Evaluation” (Dkt. No. 13-1). Ms. Bayliss
responded to this objection and indicated a desire to make an audio recording of her examination.
She also renewed her request to record the examination by video, as well as audio.
In her response, Ms. Bayliss correctly points out that the article submitted by Dr. Peeples
in support of his position states that some judicial systems require medical examinations such as
these to be recorded, evidencing a difference of opinion among authorities. Further, the editor’s

commentary at the end of the article states that the article’s insight into the potential negative
impact of observers is most relevant for the interview and that a “chaperone” is often appropriate
during a physical examination to facilitate the process.
After considering the parties’ positions and authorities cited, the Court overrules
defendant’s objection and will impose the proposed condition. However, the Court determines
that an audio recording will be sufficient, and plaintiff may not video record the examination as
she requests. If Dr. Peeples is unwilling to conduct an audio-recorded examination, defendant
may select another doctor to conduct the examination and may request from this Court any
reasonable relief necessary to do so.
The Court received no objections as to its other proposed conditions. Accordingly, the
Court imposes the following conditions on any physical examination of plaintiff:
1.

The parties must meet and confer on a mutually acceptable date and time to

schedule the examination. The parties must inform the Court when the date and time for the
examination has been set.
2.

After being informed by the parties of the date and time for the examination, the

Court will reset the rebuttal expert disclosures deadline.
3.

At either party’s option, with the party who exercises the option bearing the

expense, a videographer or court reporter may be present during the medical examination to
make a sound recording only of the complete examination; there will be no video recording of
the examination. The videographer or court reporter shall not interfere with Dr. Peeples’s
examination. The videographer or court reporter shall not ask questions of Ms. Bayliss or Dr.
Peeples during the physical examination. Counsel shall provide a copy of the sound recording to
opposing counsel.
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4.

Ms. Bayliss shall make every effort to arrive on time for the scheduled

appointment with Dr. Peeples, and Dr. Peeples shall begin to examine Ms. Bayliss within 30
minutes of Ms. Bayliss’s scheduled appointment time absent an emergency.
5.

Ms. Bayliss should not be required to bring with her to the examination or to

obtain for Dr. Peeples medical records, x-rays, or test results of any kind, it being Economy
Premier's duty to provide said items to Dr. Peeples.
6.

Ms. Bayliss should not be required to complete any forms or written

questionnaires upon arrival at the office of Dr. Peeples, other than to furnish her name and
personal identification. If Dr. Peeples deems necessary the completion of any forms by Ms.
Bayliss about her general medical history, then such shall be provided to Ms. Bayliss’s counsel.
Ms. Bayliss’s counsel shall have the right to assist her in completing any forms that may be
necessary or to otherwise make objections to same.
7.

Ms. Bayliss should not be required to submit to any invasive medical procedures,

which includes anything that could reasonably be expected to result in bleeding, the need for any
form of anesthesia to complete testing, or additional x-rays or any other testing that subjects Ms.
Bayliss to radiation, unless good cause is further established for the need to perform such tests
and the parties agree on the need to perform such tests or the Court orders such tests to proceed.
8.

Dr. Peeples shall prepare the examination report within 14 days of the physical

examination and simultaneously furnish counsel for Economy Premier and counsel for Ms.
Bayliss with a copy of same, together with a copy of the total charges billed for the examination,
review of Ms. Bayliss’s records, and all other charges to date by Dr. Peeples, and a copy of his
current curriculum vitae. The report must comply with the requirements of Federal Rule of Civil

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Procedure 35(b)(2) in that it must be in writing and must set out in detail the findings, including
the diagnoses, conclusions, and results of any tests.
9.

Dr. Peeples shall not refer to himself as an “independent medical examiner” nor

shall he use the term “IME” or the like in his written report. The work should be referred to as a
“physical examination” or a “medical examination.”
10.

Dr. Peeples shall not change, alter, or amend the findings set forth in the written

report during any testimony that may be given, except upon prior written notice to all counsel of
record in the case of anticipated changes to the report or additional testimony.
11.

Except for the expenses for the videographer or court reporter, which shall be paid

by the party electing to make a sound recording of the examination, all other expenses relating to
the examination shall be Economy Premier’s responsibility.
12.

Economy Premier shall reimburse Ms. Bayliss for reasonable transportation

expenses necessary to attend the examination from her home in Pine Bluff, Arkansas, to a
location no more than 100 miles from her home; this reimbursement may include a reasonable
rate for mileage.
13.

The Court retains jurisdiction to enforce or modify this Order as the Court deems

proper under the circumstances.
SO ORDERED this 2nd day of June, 2014.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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