Davanzo v. Carnival Cruise Lines et al
ORDER granting in part and denying in part 20 Motion to Strike. Signed by Magistrate Judge Jonathan Goodman on 4/9/2014. (hs00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14‐20153‐CIV‐LENARD/GOODMAN
CARNIVAL CRUISE LINES, et al.,
ORDER ON DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S NOTICE OF
VIDEO‐TAPING INDEPENDENT MEDICAL EXAMINATIONS
I don’t need no doctor1
In this personal injury lawsuit against a cruise ship operator, Plaintiff Kathleen
Davanzo (“Davanzo”) is being required to submit to a medical examination but seeks
certain conditions to apply during her compulsory physician visit. Davanzo wants: (1)
to have her attorney and/or spouse attend the examination; and (2) to have a court
reporter attend and videotape the examination. [See ECF No. 15].
Famously sung by Ray Charles, on “I Don’t Need No Doctor” (1966 ABC) and
also covered by, among others, Humble Pie (on its 1971 album “Performance Rockin’
The Fillmore,” A & M) and New Riders of the Purple Sage (on the 1971 album
The Court finds that the presence of an attorney and video equipment at a
compulsory medical examination would be unwieldy, problematic, and unnecessary.
Therefore, the Court grants in large part Defendant’s Motion to Strike Plaintiff’s Notice
of Video‐Taping Independent Medical Examinations. However, the Court also
appreciates that the examination here is more akin to a defense examination and
acknowledges Davanzo’s desire to not become embroiled in a credibility contest at trial
over what she did or did not say to Carnival’s doctor regarding her medical history. In
addition, the Court finds the presence of Davanzo’s spouse at the examination to be
acceptable. Therefore, the Court denies in small part the motion.
For the reasons outlined below, Davanzo’s counsel will not be permitted to
attend or videotape the compulsory medical examination and Davanzo will not be able
to have a videographer attend either. However, Davanzo will be permitted to audio
record the medical history portion of her examination. Davanzo must timely provide a
copy of the audio recording to Carnival and Carnival must timely give Davanzo a copy
of any written medical history or questionnaire she fills out in connection with the
examination. Further, Davanzo’s spouse may attend.
Davanzo claims she was injured in a slip and fall accident on Carnival’s vessel.
According to Davanzo, the fall caused injuries to her right hand, right shoulder, neck
and back. Carnival noticed Davanzo for compulsory medical examinations (pursuant
to Fed. R. Civ. P. 35) with a hand specialist and an orthopedic physician. Davanzo does
not challenge Carnival’s request for an examination, but she does seek to have the
examination occur under the specific conditions outlined above.
Carnival opposes the requested relief and argues that the conditions sought by
Davanzo are not authorized by applicable law and would subvert the purpose of Rule
A. Rule 35 Compulsory Medical Examinations: What is Really Happening
First, a word about semantics and what is actually happening here in this
skirmish over the conditions surrounding Davanzo’s examination:
Litigants, their attorneys, doctors, judges and others involved in an examination
taken under Fed. R. Civ. P. 35 often use the term “independent medical examination”
(“IME”) when discussing a medical examination taken of a personal injury plaintiff at
But these examinations are generally performed by a defense‐selected, defense‐
paid doctor, not a court‐ordered independent expert. As Bob Dylan explained, “you
don’t need a weatherman to know which way the wind blows,”2 and the Court finds
that it is somewhat artificial and unrealistic to describe such an exam as an IME.
Instead, it is more accurate to view the examination as a compulsory examination.
Bob Dylan, “Subterranean Homesick Blues,” on Bringing It All Back Home
(Columbia Records, 1965).
Indeed, Rule 35 does not use the term “independent medical examination,” nor does it
use the IME acronym. As such, the Court will describe Davanzo’s medical examination
as a compulsory examination, as opposed to an IME.
From a common sense perspective, Davanzo’s compulsory examination is more
akin to a litigant attending a deposition than a medical patient seeing his doctor. Like a
litigant compelled to attend a deposition, Davanzo will be going to the doctor’s office
only because she has to. And like a litigant who will be required to give answers at a
deposition, Davanzo’s likely goal is to complete the chore as quickly as possible.
Moreover, like a litigant required to give a deposition, Davanzo will likely be given
advice to not volunteer information and to answer only the specific question asked.
Finally, just like litigants who do not choose the attorney deposing them, Davanzo
similarly will not be selecting the doctor examining her.
Comparing Davanzo to an actual medical patient generates additional reasons
why the compulsory examination is inherently adversarial. A patient typically selects
his or her doctor; Davanzo will not. Patients will often provide an expansive medical
history and reveal intimate details about their health in order to obtain the best medical
treatment. Litigants, like Davanzo, do not; they generally only provide the specific
information asked. A patient seeking medical advice from a doctor expects the
information to be confidential; Davanzo understands Carnival will obtain copies of the
Consequently, the Court considers it strained to view a compulsory examination
as anything other than a procedure embedded in the fundamental adversarial nature of
litigation. Therefore, the Court agrees with other federal courts which describe a Rule 35
compulsory examination to be “inextricably intertwined with the adversarial process.”
Goggins v. State Farm Mut. Auto. Ins. Co., No. 3:10‐cv‐00826, 2011 WL 1660609 (M.D. Fla.
May 3, 2011). See also Gensbauer v. May Dept. Stores Co., 184 F.R.D. 552, 553 (E.D. Pa.
1999) (noting that, “in theory, an I.M.E. is to be scientific rather than adversarial,
experience suggests that it is often the latter.”); Zabkowicz v. West Bend Co., 585 F. Supp.
635, 636 (D.C. Wis. 1984) (“the defendants’ expert is being engaged to advance the
interests of the defendants; clearly, the doctor cannot be considered a neutral in the
B. Davanzo’s Compulsory Examination
Framed by this pragmatic understanding, the Court will next address Davanzo’s
requests regarding her examination.
General Maritime Law
“[T]he substantive law applicable to this action, which involves an alleged tort
committed aboard a ship sailing in navigable waters, is the general maritime law, the
rules of which are developed by the federal courts.” Keefe v. Bahama Cruise Line, Inc., 867
F.2d 1318, 1320 (11th Cir. 1989) (internal citations omitted). This fundamental rule
applies regardless of whether the Court’s jurisdiction is diversity of citizenship or
maritime jurisdiction. Id. at 1320‐21.
Pinpointing general maritime law as the applicable substantive law does not
resolve the issue here, though as there is no binding general maritime law on point.
There seems to be no logical reason why procedures in a federal court case governing
the compulsory examination of a plaintiff injured aboard a ship should not, in the
absence of some atypical factor, be the same for an examination of a plaintiff injured on
land. Therefore, given the absence of on‐point binding general maritime law, the Court
deems it appropriate to consider both non‐binding federal maritime cases and federal
diversity of citizenship cases for guidance.
Fed. R. Civ. P. 35
Rule 35 is itself silent about who may attend a compulsory examination and
about the procedures associated with the examination, leaving these issues to the
Court’s discretion. Tarte v. United States, 249 F.R.D. 856, 858 (S.D. Fla. 2008). The Court is
aware of non‐binding decisions under Rule 35 permitting the attendance of third
persons3 and those which prohibit them.4
Goggins, 2011 WL 1660609, at *2‐3 (permitting plaintiff’s attorney to attend
examination, but cautioning counsel to behave in an orderly fashion); Tracey P. v.
Sarasota Cnty., No. 8:05‐CV‐927‐T‐27EAJ, 2006 WL 1678908 (M.D. Fla. June 16, 2006) (not
allowing counsel to attend compulsory examination, but allowing presence of court
reporter or authorizing an audio recording of the examination); Morton v. Haskell Co.,
No. 94‐976‐CIV‐J20, 1995 WL 819182, at *3 (M.D. Fla. Sept. 12, 1995) (granting plaintiff’s
request to have one of his treating doctors or psychologists or psychiatrists present at
Davanzo’s Counsel may not attend the Compulsory Examination
and Davanzo may not Videotape the Compulsory Examination
Notwithstanding well‐established Florida law that a plaintiff “has a right to have
a third party observer at his medical examination,” Bacallao v. Dauphin, 963 So. 2d 962,
967 (Fla. 3d DCA 2007), the “majority view” in the federal district courts is to exclude
third‐parties and recording equipment from Rule 35 examinations. See Holland v. U.S.,
182 F.R.D. 493, 495 (D.S.C. 1998) (collecting cases).
There are strong policy reasons for prohibiting third‐parties from attending
examinations and barring the recording of examinations. If an attorney attends the
examination, then he or she might be transformed into a fact witness. Mantel, 2009 WL
3247225, at *1. The “inclusion of a third party will contaminate the examination [and]
influence an adversarial atmosphere.” Id. The recording of the examination “would lend
a degree of artificiality to the interview technique which would be inconsistent with
applicable professional standards.” Holland 182 F.R.D. at 495.
the mental examination). Cf. Bennett v. White Labs., Inc. 841 F. Supp. 1155, 1159 (M.D.
Fla. 1993) (permitting plaintiff to have her own physician attend the examination);
Vreeland v. Ethan Allen, Inc., 151 F.R.D. 551, 552 (S.D.N.Y. 1993) (magistrate judge did not
abuse discretion permitting plaintiff’s attorney to attend plaintiff’s compulsory
Mantel v. Carnival Corp., No. 09‐CV‐20042, 2009 WL 3247225 (S.D. Fla. Oct. 9,
2009) (denying plaintiff’s request that his attorney be allowed to attend and videotape
the examination); Tarte, 249 F.R.D. at 859‐60 (rejecting plaintiff’s request that attorney
attend the examination); Holland v. U.S., 182 F.R.D. 493 (D.S.C. 1998) (rejecting request
to record the examination and for attendance of plaintiff’s counsel).
In addition, many courts adopt the view that a Rule 35 examination is designed
to provide a “level playing field” between the parties in connection with their
respective efforts to appraise the plaintiff’s condition. Favale v. Roman Catholic Diocese of
Bridgeport, 235 F.R.D. 553, 557 (D. Conn. 2006). Thus, because a plaintiff was examined
by his doctors outside the presence of observers, the defendant should be afforded the
same opportunity. Id.; Tarte, 249 F.R.D. at 859.
The Court agrees with all but one of these concerns: the stated goal to divest the
examination of an adversarial atmosphere. As explained earlier, the Court considers a
compulsory examination with a defense‐selected and defense‐paid doctor to be
inherently adversarial to some extent. Therefore, it seems unrealistic to assume that the
adversarial process can somehow be completely eliminated. Instead, the “examination
is but a discovery/trial preparation tool that is part and parcel of the overall adversarial
process,” even if “the examiner does not intentionally set out to be an advocate for the
party who is paying him.” Goggins, 2011 WL 1660609, at *3. See also Di Bari v. Incaica Cia
Armadora, S.A., 126 F.R.D. 12, 14 (E.D.N.Y. 1989) (agreeing with plaintiff that a
compulsory examination “is in reality adversarial in nature” and ruling that a court
reporter could attend the examination but plaintiff’s attorney could not); Zabkowicz, 585
F. Supp. at 636.
To be sure, the attendance of an attorney may well impede the doctor’s ability to
conduct a comprehensive, orderly examination and to ask all the questions he or she
might otherwise ask. Likewise, the presence of a videographer, court reporter, or other
third‐party could easily undermine the doctor’s ability to comfortably conduct a
physical examination. For similar reasons, the videotaping of the examination, even by
Davanzo herself, could quickly hinder the doctor’s ability to conduct and complete the
examination and could also generate an awkward atmosphere, especially if the plaintiff
were required to disrobe or engage in physical maneuvers or tests.
Accordingly, Davanzo’s counsel may not attend the compulsory examination
and Davanzo may not videotape the compulsory examination.
Davanzo May Audio Record Only the Oral Medical History of Her
The Court believes the better way to control arguably inappropriate questions or
answers based on vague or confusing questions is for Davanzo to seek a ruling from the
Court after the examination but before trial. In order to do this, however, Davanzo
must know with certainty what the doctor will say Davanzo said about her medical
With a written survey or questionnaire filled out by Davanzo, this is easy ‐‐ a
copy of the document will be the evidence of the information provided by Davanzo. But
for the portion of the medical history which is done orally, Davanzo may not know the
specifics of what the doctor will contend she said until the doctor’s deposition is taken
or until the doctor testifies at trial. More importantly, Davanzo could be in a dicey
credibility battle if she challenges the accuracy of the oral history attributed to her by
Permitting Davanzo to audio record only the oral medical history portion of the
examination would generate an accurate version of the oral medical history. And it is
far less intrusive and distracting than permitting an attorney, a court reporter, a
videographer, or another physician to attend the examination. In addition, any concern
over the doctor’s ability to accurately recall the oral medical history would require only
the audiotaping of the initial medical history interview ‐‐ not the entire examination.
Sidari v. Orleans Cnty., 174 F.R.D. 275, 291 (W.D.N.Y. 1996) (rejecting defense argument
“that the presence of a tape recorder would ‘destroy any candor’ by the plaintiff and
subvert the entire purpose of the examination,” and directing that mental examination
be recorded by an audio tape recorder). See also Zabkowicz, 585 F. Supp. at 636 (ruling
that the plaintiffs have the option of having a third party, including their counsel,
attend the examination or to record the examination).
In other contexts, such as in criminal investigations or in interrogations involving
hypnosis, the risks of not recording interviews and the benefits of preserving them have
often been discussed by both courts and legal commentators. See Rock v. Arkansas, 483
U.S. 44, 60 (1987) (“tape or video recording of all interrogations, before, during and after
hypnosis, can help reveal if leading questions were asked.”); United States v. Boston, 249
F. App’x 807, 810, (11th Cir. 2007) (recording statements made during custodial
interrogations is not constitutionally required but “might be sound policy”);5 see also
Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J.
Crim. L. & Criminology 1127 (2005).
To be sure, a compulsory examination in a civil lawsuit is different from a
custodial police interrogation, but the critical desire to obtain an accurate, dispute‐free
version of what was said is applicable in both scenarios.
Davanzo’s Spouse May Attend the Examination
Although the Court finds that Davanzo may not have her attorney or a
videographer present at the examination, she is permitted to have her spouse attend.
Indeed, having her spouse present might reduce any anxiety involved over the
examination and will not subvert the purpose of Rule 35.
For the reasons set forth above, the Court orders as follows:
Davanzo’s attorney may not attend Davanzo’s compulsory examination.
Davanzo may not videotape or otherwise visually record the compulsory
Although recording of custodial interrogations is not constitutionally required,
some police departments have internal rules and guidelines mandating the procedure.
See, e.g., http://www.sheriff.org/posts/post.cfm?id=3436077b‐3670‐4e3f‐bce8‐c86148324009
(Broward County Sherriff’s office news release explaining that the policy applies to all
first and second‐degree felonies) (last visited May 8, 2013).
Davanzo may audio record6 the oral medical history of her compulsory
examination taken by Carnival’s doctor, assuming the doctor were to ask oral questions
to supplement any written history he might obtain directly from Davanzo. If Davanzo
chooses to audio record the oral medical history, then the following procedures will
Carnival must take steps to specifically advise the doctor of this
Order and obtain the doctor’s consent to examine Davanzo under the conditions set out
in this Order. If the doctor is unwilling to examine Davanzo under these conditions
(and the Court is certainly not requiring the doctor to do so), then Carnival shall make
other arrangements to locate a doctor who is willing to conduct the examination under
the terms of this Order.
Carnival’s doctor shall in his reasonable discretion determine when
the oral medical history portion of the compulsory examination has concluded and
advise Davanzo to at that point turn off the audio recording device. In the event there
are inappropriate, vague, or confusing questions, or questions asked while the audio
recording device is off, the Court will, upon request, address them before trial at the
request of counsel who has filed an appropriate motion
There are many types of devices which could be used to record the oral medical
history portion of the examination and the Court is not requiring or even suggesting
which of the myriad available devices could or should be used.
Davanzo must timely provide Carnival with her copy of the audio
Carnival must timely provide Davanzo with a copy of all
questionnaires and surveys Davanzo fills out that are related to the compulsory
Davanzo’s spouse may attend the compulsory examination.
DONE AND ORDERED in Chambers, Miami, Florida, this 9th day of April
Copies furnished to:
Honorable Joan A. Lenard
All Counsel of Record
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