Nogess v. Poydras Center, LLC, et al

Filing 152

ORDER AND REASONS re 138 MOTION to Compel Independent Medical Exam of Plaintiff Without Audio Recording. Signed by Magistrate Judge Michael North on 3/6/2018.(Reference: Both Cases)(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHELLE NOGESS, ET AL.

CIVIL ACTION

VERSUS

NUMBER: 16-15227
c/w 16-15234

POYDRAS CENTER, LLC, ET AL.

SECTION: “A”(5)
ORDER AND REASONS

Before the Court is the Motion to Compel Independent Medical Exam (“IME”) of
Plaintiff, Debra Ann Yates, Without Audio Recording filed by Defendants, Hertz Investment
Group; Poydras Center Manager, Inc.; Poydras Center, L.L.C.; Bobby Schloegel; and Travelers
Insurance Company (“Defendants”). (Rec. doc. 138). The motion is opposed by Plaintiff,
Debra Ann Yates (“Yates”). (Rec. doc. 144). The Court granted Defendants’ request for
expedited review and conducted a hearing on the motion February 28, 2018. (Rec. docs. 139,
146, 147). Following the hearing, the Court issued a Minute Entry granting the motion and
stating that written reasons would follow. (Rec. doc. 147).
In addition to the pleadings in the record and exhibits thereto, at the February 28th
hearing, the Court accepted into evidence two additional exhibits offered by the parties: a
report offered by Plaintiff’s counsel concerning Yates’ psychological condition authored by
her social worker (rec. doc. 149, filed under seal) and a “Policy on Third Party Observation”
issued to defense counsel by Dr. Megan Ciota, the neuropsychologist designated to conduct
the proposed psychological examination of Yates. (Rec. doc. 148).
The Court has carefully considered the pleadings and arguments of counsel as well as
the applicable law and determines that the motion should be granted for the following
reasons.

First, the Court notes that the issue for decision is narrow: Whether Plaintiff’s counsel
should be permitted to audiotape the interview portion of the proposed IME.1 Plaintiff has
agreed to attend a psychological IME under Rule 35 of the Federal Rules of Civil Procedure,
but only if any interview portion of the exam is tape recorded. (Rec. doc. 144 at p. 3).
Defendants resist this condition, on the ground that
[a]llowing the presence of a tape recorder would arguably have
the same influence on the patient's responses, either
consciously or subconsciously, as having plaintiff’s counsel
present in the room during the examination.
(Rec. doc. 138-1 at p. 4).
Plaintiff disputes this contention, stating in brief that the “issues of whether counsel can be
present and whether a tape recording can be made of the interview are dramatically
different issues” and that “there is no support whatsoever . . . either in the jurisprudence or
in common sense” for Defendants to compare the two issues. (Rec. doc. 144 at p. 3.). After
reviewing the jurisprudence, however, the Court disagrees with Plaintiff in this regard.
It is widely recognized that third parties, including counsel, should be prohibited from
attending medical or psychological exams. While there are a limited number of cases where
that has been allowed, see, e.g., Abdulwali v. Washington Metro Area Transit Auth., 193 F.R.D.
10, 13 (D.D.C. 2000) (listing examples), the federal cases excluding the plaintiff's attorney
from IME’s absent special circumstances are legion.
Among the reasons courts have favored exclusion of attorneys and other third parties
in IME’s are:

Plaintiff has already agreed that a psychological examination, including testing, is appropriate. She has also
agreed that she does not seek to record the actual testing, only the interview that Dr. Ciota proposes to conduct.
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2



to allow otherwise would “subvert the purpose of Rule 35, which is to
put both the plaintiff and defendant on an equal footing with regard to
evaluating the plaintiff's [medical] status.” Duncan v. Upjohn, 155 F.R.D.
23, 26-27 (D. Conn. 1994);



that the presence of counsel or an observer “would constitute a
distraction during the examination and work to diminish the accuracy
of the process ... thereby compromising the results of the examination.”
Calderon v. Reederei Claus–Peter Offen GmbH & Co., 258 F.R.D. 523, 527
(S.D. Fla. 2009) (quoting Romano v. II Morrow, Inc., 173 F.R.D. 271, 274
(D. Or. 1997);



that “[t]he presence of a lawyer creates a potential ethical problem
since he becomes a possible witness and might therefore have to
withdraw as trial counsel.” Hertenstein v. Kimberly Home Health Care,
Inc., 189 F.R.D. 620, 629 (D. Kan. 1999) (quoting Dodd–Anderson v.
Stevens, Nos. 92–1015–MLB, 92–1016–MLB, 1993 WL 273373 at *2 (D.
Kan. May 4, 1993); and



that the presence of an attorney “injects a partisan character into what
should otherwise be a wholly subjective inquiry.” Id. at 629 (quoting
Dodd–Anderson, 1993 WL 273373 at *2); see also Greenhorn v. Marriott
Intern., Inc., 216 F.R.D. 649, 654 (D. Kan. 2003) (believing that the
presence of a third party “can only threaten to turn the examination
into a more adversarial process than it should be.”).2

Likewise, there are ample decisions, including decisions in this circuit and district,
that equate the tape recording of a medical or psychological examination to allowing counsel

As noted earlier, counsel for Defendants also provided the Court with a statement of policy from Dr. Ciota,
who is to conduct Yates psychological IME. In that statement, she cites many of the same bases as described in
the aforementioned cases as reasons that she does not allow third-party observation, including tape recording,
of her examinations. (Rec. doc. 148).
2

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for the plaintiff to be present in the examination room. The detailed and well-reasoned
opinion in Ornelas v. Southern Tire Mart, LLC is an example:
Most courts analyze a request for a recording device the same
way they evaluate whether to permit the presence of an
attorney during a Rule 35 examination. Calderon, 258 F.R.D. at
529; In re Falcon Workover, No. Civ. A. 972628, 1999 WL
721945, at *1 (E.D. La. Sept. 15, 1999) (“[T]aping the psychiatric
examination would be tantamount to allowing counsel for the
claimant to be present in the room.”); Hertenstein, 189 F.R.D. at
628 (“Whether to either allow a ... recorder or a third person at
the examination of plaintiff raises only a single issue.”). Because
“[t]he introduction of a human or mechanical presence—
whether a lawyer, a stenographer, a tape recorder, or other
instrumentality—changes the nature of the proceeding,” the
court must be convinced that a protective order is necessary.
Tirado v. Erosa, 158 F.R.D. 294, 299 (S.D. N.Y. 1994). Thus, in the
same way third-party observations are disfavored, so too are
the presence of recording devices, Newman v. San Joaquin Delta
Cmty. Coll. Dist., 272 F.R.D. 505, 514 (E.D. Cal. 2011); Holland v.
U.S., 182 F.R.D. 493, 495 (D.S.C. 1998), and therefore the party
seeking to record or videotape an examination bears the burden
of showing a “factual basis” amounting to good cause for the
request. Maldonado v. Union Pac. R.R. Co., No. 09–1187–EFM,
2011 WL 841432, at *3 n. 15 (D. Kan. Mar. 8, 2011); Calderon,
258 F.R.D. at 529. In other words, “special circumstances” for
the request must be shown, as fairness and medical integrity
considerations underlie the determination. Newman, 272 F.R.D.
at 514–15; Hirschheimer v. Associated Metals & Minerals Corp.,
No. 94 CIV. 6155(JKF), 1995 WL 736901, at *4 (S.D. N.Y. Dec. 12,
1995).
Ornelas, 292 F.R.D. 388, 396-97,
S.D. Tex. 2013).
Employing the framework set out by the foregoing authorities, this Court finds that it
may allow Plaintiff’s IME to be tape recorded if it finds the presence of special circumstances
amounting to good cause for the request. While Plaintiff argued such circumstances are
present here, the Court disagrees that the factual basis proffered by counsel rises to the level
required to allow the IME to be tape recorded.
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The sort of special circumstances that courts have found sufficient to justify recording
an examination include


where Plaintiff had a lengthy history of serious mental issues and the
court had serious doubts “as to whether plaintiff [would] be capable of
providing any assistance to his attorney in understanding what took
place during the examination.” Schaeffer v. Sequoyah Trading & Transp.,
273 F.R.D. 662, 664 (D. Kan. 2011);



where the plaintiff had a third-grade education, was a non-English
speaker, suffered from impaired memory and cognitive abilities, all of
which impaired his ability to communicate to his counsel what
occurred during the examination. Maldonado v. Union Pac. R.R. Co., No.
09–1187–EFM, 2011 WL 841432 at *3 n. 15 (D. Kan. Mar. 8, 2011);



upon the examining physician's request because of his representation
that “with traumatized children, a child's facial expressions, body
language, movements and behavioral enactments communicate
medically significant information which can be captured on videotape.”
T.B. ex rel. G.B. v. Chico Unified School Dist., No. CIV S–07–0926–GEB–
CMK, 2009 WL 837468 at *2 (E.D. Cal. Mar. 26, 2009);



where the court found a recording was necessary because of evidence
brought forth by the plaintiff that the examining physician was abusive
and had a predilection for ignoring court orders imposing conditions
upon his examinations and had thus been disqualified from several
cases previously. Greenhorn, 216 F.R.D. at 654.

When compared against these instances in which courts found recording an
examination justified, it is clear to the Court that Yates’ argument falls short.
As noted earlier, Plaintiff’s counsel has presented for filing in the record a report
authored by the Plaintiff’s treating social worker, Christina Roux. As that record is sealed,

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the Court will simply note that it closely reviewed the report, and will allude here only to
that portion of the report read on the record by counsel at the hearing, which states that
Plaintiff suffers from one of the most severe cases of post-traumatic stress disorder (“PTSD”)
that Ms. Roux has ever seen. In addition to this report, counsel for Plaintiff included as an
exhibit to his opposition memorandum an affidavit executed by Yates that states, in pertinent
part, the following:
16. I am nervous and somewhat fearful of an interview which is
not going to be recorded. I am having a very hard time
understanding why anyone would oppose an audio recording
simply to document what was said. In light of the vigorous
opposition to my simple request for an audio recording, I am
now somewhat concerned about the questions that Dr. Ciota
intends to ask me.
17. My concerns about the interview have been heightened by
defense counsel's contention that Dr. Ciota would be adversely
affected by the presence of an audio tape recorder. That
suggests to me that Dr. Ciota would not ask me certain questions
if others were permitted to hear them.
18. I don't understand how Dr. Ciota's conduct of my
examination would be adversely affected by my attorney being
able to see the exact questions asked and the exact answers
given.
(Rec. doc. 144-1).
Expanding upon his client’s position at the hearing, counsel for Yates explained that
he advised her that he would ask to have the examination taped and when Defendants
refused, Yates became upset and concerned because she could not understand why
Defendants would take that position.
While the Court has no reason to doubt that Yates might be nervous about the
interview, this does not nearly rise to the level necessary for the Court to find “special
circumstances” to allow the interview to be recorded. Indeed, were the Court to deem these
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reasons sufficient to allow recording in this case, literally every plaintiff in every personal
injury case in federal court would make the same argument, essentially bootstrapping
themselves into position to demand that any examination be taped simply because their
opponent – or the medical provider conducting the IME – objected to it.
Here, Dr. Ciota has provided, and the Court has reviewed, an objective statement
justifying her policy of not allowing third-party observation or recording of examinations,
which statement is supported by numerous general references from the American Academy
of Clinical Neuropsychology and other similar bodies, as well as scientific peer-reviewed
publications discussing the issue (including one indicating that 88 percent of testing
psychologists do not allow third-party observation or recording of their testing). (Rec. doc.
148). While the Court has not reviewed all of the sources cited by Dr. Ciota, it has reviewed
her policy statement, which is consistent with the many decisions cited above that frown
upon the presence of attorneys and/or recording equipment in medical or psychological
examinations.
After consideration of all the facts presented here, the Court finds that Yates has not
established a factual basis amounting to good cause for her request to audiotape the IME by
Dr. Ciota.
New Orleans, Louisiana, this 6th

day of

March

, 2018.

MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE

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