Charubin v. Budney Overhaul & Repair, Ltd.

Filing 24

RULING (see attached), granting in part and denying in part Plaintiff's 20 Emergency Motion for Protective Order. The motion is DENIED, to the extent that it prays the Court to order Defendant to use a particular translator. The motion is GRANTED, to the extent that Defendant is directed to allow and cooperate with the making of an audio recording during the course of Dr. Selig's evaluations of Plaintiff. Defendant's requests for costs and prohibitions, see Doc. 21 at 5-6, are all DENIED. The Independent Medical Examination of Plaintiff by Dr. Selig will take place in a manner consistent with this Ruling. Signed by Judge Charles S. Haight, Jr. on 01/15/2019. (Chen, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LIDIA CHARUBIN,
Plaintiff,
v.

Civil Action No.
3:18-cv-00256 (CSH)

BUDNEY OVERHAUL & REPAIR, LTD.,
Defendant.

JANUARY 15, 2019

RULING ON PLAINTIFF’S EMERGENCY MOTION
HAIGHT, Senior District Judge:
Defendant’s Objection [Doc. 21] to Plaintiff’s Emergency Motion for Protective Order [Doc.
20], Plaintiff’s Reply thereto [Doc. 23], and the Motion itself inform the Court to a degree sufficient
to allow this Ruling, which resolves the Motion.
I.

BACKGROUND

Plaintiff asserts against Defendant, her former employer, a claim for emotional distress
arising out of Plaintiff’s alleged sexual harassment by Plaintiff’s supervisor. Plaintiff and the
supervisor both speak Polish: one gathers, from the motion papers, as a first language. In addition,
Plaintiff’s counsel of record is bilingual in Polish and English.
During discovery, Defendant’s counsel deposed Plaintiff. In accordance with customary
procedure, Plaintiff’s counsel attended the deposition. Plaintiff gave her testimony with the
assistance of a Polish-English interpreter. Plaintiff’s counsel avers on the present motion that,
making use of his bilingual skills, counsel “repeatedly objected during Plaintiff’s deposition to the
interpreter’s methods and the quality of his translations.” Plaintiff’s Reply [Doc. 23] at 1.

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Defendant’s counsel subsequently decided, as part of continuing discovery, to subject
Plaintiff to “an Independent Medical Examination (‘IME’) with Defendant’s medical expert.”
Defendant’s Objection [Doc. 21] at 1. Defendant has selected as examining physician Dr. Kenneth
Selig, a male psychiatrist. Defense counsel’s designation of Dr. Selig as “Defendant’s medical
expert” casts some doubt on the brief’s immediately preceding reference to an “Independent Medical
Examination,” but no matter, the dispute does not turn upon such nuances. The dispute arises
because as the result of an exchange of post-deposition communications between the attorneys;
Plaintiff’s counsel formed the impression that the Polish-English interpreter at the IME would be one
Elizabeth Wasiutynski, a retiree who has achieved, in counsel’s admiring phrase, the enviable
reputation “as the best Polish-English interpreter in Connecticut.” Plaintiff’s Motion [Doc. 20] at
2.
Plaintiff now says she was distressed to learn, shortly before the date scheduled for the IME,
that “the same male interpreter who translated during Plaintiff’s December 27, 2018 deposition
would also interpret during Dr. Selig’s evaluation.” That distress prompted the present protective
motion. Plaintiff, a female, objected to having “only the two men, the psychiatrist and the
interpreter,” present at the examination, particularly when “she lacks confidence in the quality of the
man’s interpretation because it was apparent to her that the interpreter failed to translate part of
Plaintiff’s longer responses during her deposition. ” Doc. 20 at 3.
II.

DISCUSSION

Plaintiff’s initial demand was that the Court order Defendant “to use Elizabeth Wasiutynski
or another agreed-upon female Polish interpreter during Dr. Selig’s evaluations of Plaintiff.” Doc.
20 at 4. Plaintiff’s Reply [Doc. 23] seemingly retreats from (or at least amends) that demand:
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Plaintiff now says that “she is prepared to go forward with the evaluation so long as her concerns
about the hired interpreter can be allayed with audio recording of the exchanges.” Doc. 23 at 1.
Plaintiff now acknowledges that the former (albeit problematic) interpreter “has the requisite
language skills and has done acceptable work when bilingual counsel was present to observe in real
time and object when necessary. However, no such control will be present at the IME, thus
necessitating the audio recording in case of any later complaints that faulty interpretation negatively
affected the evaluation.” Id. at 2–3. Plaintiff concludes that she “will be present at the scheduled
time and will proceed with the examination so long as Dr. Selig does not interfere with her right to
make an audio recording of the examination.” Id. at 2. It should be noted that the Court, having
considered the submissions on the present motion, stayed the IME pending the Court’s decision on
the motion, which this Ruling accomplishes. Doc. 22.
The position for Defendant on Plaintiff’s protective motion is that Plaintiff is entitled to no
protection whatsoever. Defendant contends that the IME should proceed, with Dr. Selig examining
and interrogating Plaintiff, assisted by the interpreter originally designated by Defendant. As to an
audio recording, Defendant opposes that as well. The Opposing Brief argues at 4: “Defendant
cannot agree to this—it is a transparent attempt to set up at situation in which any comment Plaintiff
makes that is unfavorable to her case could have been the result of poor translation. Moreover,
Defendant was not afforded the same opportunity to record Plaintiff’s sessions with her expert.”
The issues presented by this motion are sensitive and not without difficulty. Plaintiff claims
that as the result of an incident for which Defendant is liable, she suffers from intractable and severe
emotional distress. Defendant responds that Plaintiff’s claim is frivolous, entirely lacking in merit,
and not asserted in good faith. Resolution of these substantive questions is for another day, after
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completion of discovery, summary judgment motions, or plenary trial. For the present, each party
is entitled to pre-trial discovery and trial preparation (1) as broad and full as the Rules allow, while
(2) conducted in a manner that is fair to the other party.
There can be tension between these two guiding principles. That tension arises in the case
at bar because the damages Plaintiff claims are psychiatric in nature and Defendant wishes to proffer
at trial medical expert testimony from Dr. Selig, a psychiatrist. Dr. Selig proposes to interview and
evaluate Plaintiff in order to form the opinion Defendant contemplates offering at trial. Defendant
is entitled to that interview, evaluation and evidence. Plaintiff does not contend otherwise in
principle. The complication in practice is that Plaintiff is a Polish-speaking individual. What Dr.
Selig says to Plaintiff must be translated from English into Polish, and Plaintiff’s responses to Dr.
Selig must be translated from Polish into English. Dr. Selig’s resulting medical opinion will be
expressed in English, the lingua franca of a trial in this Court, but fairness to both parties requires
that every available step be taken to ensure that the interpreter’s translations are complete and
accurate.
In this case, counsel for Plaintiff articulates a plausible cause for concern in that regard on
the part of the designated interpreter, who according to counsel gave suspiciously short translations
of lengthy questions during Plaintiff’s deposition. I do not say that actually occurred during the
deposition, but counsel describes a familiar problem. For example: Two ocean-going ships collide
in reduced visibility. A U.S. Coast Guard inquiry officer asks a young mate of the watch on one
vessel, testifying in Norwegian through an interpreter, how the ships maneuvered into collision. The
witness responds, in some agitation, in Norwegian, his answer extending over ten minutes. The
interpreter purports to state his translation of the mate’s answer, which is in its entirety: “There was
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no fog that night.” Everyone at such a hearing knows there are problems with the completeness and
accuracy of the translation.
An effective way to avoid such potential problems in the case at bar is to have a
contemporaneous audio recording made of Dr. Selig’s interview of Plaintiff, as Plaintiff’s counsel
suggests on this motion. A record will then exist for counsel to urge any unfairness or impropriety
counsel perceives in the interpretation and translation processes. Defendant’s objections to a
recording are unpersuasive. Its argument, quoted supra, assumes that counsel for Plaintiff would
make frivolous arguments of “poor translation” in bad faith. The Court declines to indulge that
assumption. Given the importance of the anticipated evidence based on Dr. Selig’s expert opinions,
Defendant’s hypothetical concerns about Plaintiff’s conduct in using a recording of Dr. Selig’s
session do not tip the balance against the assurances of fairness inherent in such a recording. There
is no substance to Defendant’s additional contention, more whine than argument, that “Defendant
was not afforded the same opportunity to record Plaintiff’s sessions with her expert.” The
circumstances are entirely different, and there is no indication that Defendant asked for that
opportunity.
Accordingly, Defendant is required to allow Plaintiff to make an audio recording of Dr.
Selig’s examination of Plaintiff. Plaintiff must pay the cost of the recording and its transcription in
the first instance; provided, however, such expenses shall be taxable costs, to abide the event. If
Defendant wishes to obtain copies of the recording and transcription, it must pay for them in the first
instance, subject to inclusion as taxable costs.
While Dr. Selig is an experienced specialist, and requires no instruction from the Court, I
take this opportunity to ask that, to the extent medically possible, Dr. Selig structure his session with
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Plaintiff in such a way as to enhance and promote the purpose and clarity of the audio recording
directed by this Ruling. What I have said in this concluding paragraph is precatory, not mandatory.
III.

CONCLUSION

For the foregoing reasons, the Court makes the following Order:
1. Plaintiff’s Motion for Protective Order [Doc. 20] is DENIED, to the extent that it prays
the Court to order Defendant to use Elizabeth Wasiutynski as a female Polish interpreter during Dr.
Selig’s evaluations of Plaintiff. Plaintiff is not entitled to have the Court direct Defendant to engage
the services of a particular interpreter.
2. Plaintiff’s Motion for Protective Order [Doc. 20] is GRANTED, to the extent that
Defendant is directed to allow and cooperate with the making of an audio recording during the
course of Dr. Selig’s evaluations of Plaintiff.
3. Defendant’s requests for costs and prohibitions, as stated in the concluding paragraph of
its Opposition [Doc. 21] to Plaintiff’s Motion, are all DENIED.
4. The Independent Medical Examination of Plaintiff by Dr. Selig will take place in a
manner consistent with this Ruling.

It is SO ORDERED.
Dated: New Haven, Connecticut
January 15, 2019

/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge
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