Heath v. Isenegger et al
Filing
51
OPINION AND ORDER: Court GRANTS 43 Motion for Order of Rule 35 Medical Examination of Plaintiff with Conditions. Heath is ORDERED to submit to the independent medical examination with Dr. Matthew J Ross and is not permitted to videotape or otherwise electronically record the examination. Signed by Magistrate Judge Andrew P Rodovich on 7/1/2011. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WORNER O. HEATH, JR.,
)
)
Plaintiff
)
)
v.
) CIVIL NO. 2:10 cv 175
)
JAMES M. ISENEGGER, II; SWIFT
)
TRANSPORTATION SERVICES LLC aka )
Swift Transportation Corporation;)
SWIFT TRANSPORTATION CO. ARIZONA )
LLC aka Swift Transportation Co. )
Inc.,
)
)
Defendants
)
OPINION AND ORDER
This matter is before the court on the Motion for Order of
Rule 35 Medical Examination of Plaintiff With Conditions [DE 43]
filed by the defendants, James M. Isenegger, II, Swift Transportation Services, LLC, and Swift Transportation Co., Inc., on June
9, 2011.
For the following reasons, the motion is GRANTED.
Background
This matter arises from an automobile accident that occurred
on April 19, 2010, in Merrillville, Indiana.
The plaintiff,
Worner O. Heath, Jr., filed his complaint on April 27, 2010,
alleging that the defendant, James M. Isenegger, II, was acting
as an agent of Swift Transportation Corporation and Swift Transportation Co., Inc. when he caused a collision with Heath’s
vehicle.
Heath retained a physician, Dr. Mark A. Levin, to
perform a medical examination for the purpose of testifying about
Heath’s injuries at trial.
The defendants requested that Heath
voluntarily submit to an independent medical examine by an expert
physician of their choosing pursuant to Federal Rule of Civil
Procedure 35.
Heath acquiesced, and the defendants scheduled
Heath’s medical examination with Dr. Matthew J. Ross on June 21,
2011.1
The defendants’ counsel sent e-mail correspondence to
Heath’s counsel advising of the arrangements for the independent
medical examination.
attend in mid-May.
Heath’s counsel confirmed that Heath would
Shortly thereafter, on June 1, 2011, Heath’s
counsel informed the defendants that he intended to have the
examination videotaped.
The defendants’ counsel contacted Dr.
Ross to ask for his consent to the video recording, and Dr. Ross
stated that he would not complete the examination if it was to be
recorded.
The parties conferred and could not reach an agreement
on videotaping the examination.
The defendants then filed this
motion to compel Heath to undergo the medical examination without
video recording.
Discussion
Federal Rule of Civil Procedure 35(a) states "[t]he court
where the action is pending may order a party whose mental or
physical condition — including blood group — is in controversy to
1
The parties were informed of the court's decision prior to the
scheduled exam and told that a written order would be entered.
2
submit to a physical or mental examination by a suitably licensed
or certified examiner.
The court has the same authority to order
a party to produce for examination a person who is in its custody
or under its legal control."
A party seeking a Rule 35 medical
examination not only must show that the party's medical condition
is in controversy but also that good cause warrants the examination. See Rule 35 ("The order may be made only on motion for good
cause shown."). See also Schlagenhauf v. Holder, 379 U.S. 104,
118-19, 85 S.Ct. 234, 242-43, 13 L.Ed.2d 152 (1964) ("Rule 35
. . . requires discriminating application by the trial judge, who
must decide, as an initial matter in every case, whether the
party requesting a mental or physical examination or examinations
has adequately demonstrated the existence of the Rule's requirements of 'in controversy' and 'good cause.'").
Good cause under
Rule 35 requires a greater showing of need than the relevancy
already indicated by Rule 26(b) and can be gauged by the ability
of the movant to obtain the desired information by other means.
See Schlagenhauf, 379 U.S. at 118, 85 S.Ct. at 242-43.
The plaintiff may willingly submit to an independent medical
examination.
The plaintiff may take notes of the examination,
however, even when he voluntarily submits, he does not have an
absolute right to have the independent examination videotaped or
recorded by an electronic device.
3
Newman v. Gaetz, 2010 WL
4928868, *1 (N.D. Ill. Nov. 29, 2010); Scheriff v. C.B. Fleet
Co., Inc., 2008 WL 2434184, *1 (E.D. Wis. June 16, 2008) ("[I]n
the normal course, medical examinations under Rule 35 are neither
videotaped nor attended by third parties.").
It is within the
discretion of the court to allow recording of the examination.
Newman, 2010 WL 4928868 at *1 (citing Morrison v. Stephenson, 244
F.R.D. 405, 406 (S.D. Ohio 2007)).
Courts addressing this issue
have weighed a variety of factors.
The court begins with a presumption that the "expert retained to conduct the examination is professional, independent
and objective, as opposed to an agent or advocate for the side
that retained him."
Scheriff, 2008 WL 2434184 at *2 (consider-
ing, as one factor in denying leave to videotape a medical examination, that absence of any indicia of unfairness or reason to
assume the examining doctor would take advantage of the plaintiff).
In light of this presumption, medical examinations
generally are not videotaped.
Newman, 2010 WL 4928868 at *1
("Under the 'normal procedure' there is no video camera or other
recording device at the examination.").
Videotaping may inter-
fere with and disrupt the examination, and because the examining
physician often will prepare his own notes and expert report,
videotaping is normally unnecessary.
*1-2.
Newman, 2010 WL 4928868 at
Courts also have taken into consideration an expert’s
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refusal to allow video taping of his examination.
Pizzuto v.
Harison, 2010 WL 672754, *2 (D. Idaho Feb. 20, 2010).
Further-
more, when the plaintiff’s physician’s examination was not
recorded, it may be unfair to permit videotaping of the defen-
Scheriff, 2008 WL 2434184 at *2
dant’s physician’s examination.
(citing Favale v. Roman Catholic Dioceses of Bridgeport, 235
F.R.D. 553, 557 (D. Conn. 2006)).
However, the court may order
an independent medical examination to be videotaped upon a showing of good cause by the party to be examined.
Newman, 2010 WL
4928868 at *1 ("In order to secure the presence of a video camera
at a psychological examination, Petitioner is required to demonstrate good cause for such an order.").
To succeed in showing good cause, the party requesting the
video recording must explain why the video recording is necessary.
It is not sufficient to presume bias or to show that the
examined party will have difficulty remembering or communicating
what occurred at the examination to his attorneys.
Scheriff,
2008 WL 2434184 at *3 (explaining that examination should not be
recorded absent some indicia of unfairness or bias); Newman, 2010
WL 4928868 at *2.
Rather, the examined party must show some
indicia of unreliability or explanation why the examining physician’s notes and report will be unreliable.
Newman, 2010 WL
4928868 at *2; Wheat v. Biesecker, 125 F.R.D. 479, 480 (N.D. Ind.
5
1989)(explaining that absent a showing that the examining physician would not make a fair examination, the report required by
Rule 35(b) was an adequate safeguard).
See also, Schaeffer v.
Sequoyah Trading & Transporation, 2011 U.S. Dist. LEXIS 29058,
*6-8 (D. Kan. March 21, 2011) (permitting a medical examination
to be videotaped because the defendants presented evidence that
the plaintiff may manipulate the examination).
The parties have agreed that the medical examination is
necessary because Heath’s injuries are at issue, but contest
whether the independent medical examination should be videotaped.
The court must begin its analysis by assuming that the expert
physician the defendants selected is professional and independent.
In light of this presumption and other safeguards ensuring
reliability, videotaping is unnecessary.
Heath has not submitted
any explanation to controvert this presumption and to show why
videotaping may be necessary.
Nothing in the record suggests
that the physician the defendants chose is unreliable or would
not conduct a fair examination.
Nor does the record reflect that
Heath is of such limited ability that he could not relay the
substance of the examination to his attorneys or that his abilities would make him susceptible to manipulation by the expert
physician and unfairly aid the defendants’ case.
Absent an
adequate reason for compelling videotaping of the medical exami-
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nation, the court finds that the safeguards imposed by the
federal rules and procedures of this court advocate against
prejudice and that videotaping is unnecessary.
_______________
Based on the foregoing, the Motion for Order of Rule 35
Medical Examination of Plaintiff With Conditions [DE 43] filed by
the defendants, James M. Isenegger, II, Swift Transportation
Services, LLC, and Swift Transportation Co., Inc., on June 9,
2011, is GRANTED.
Heath is ORDERED to submit to the independent
medical examination with Dr. Matthew J. Ross and is not permitted
to videotape or otherwise electronically record the examination.
ENTERED this 1st day of July, 2011
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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