Hudson v. Dr. Michael J. O'Connell's Pain Center
Filing
40
ORDER denying without prejudice 21 Motion for Independent Medical Examination. Defendant's request for fees and costs is denied. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Kaitlin Hudson
v.
Civil No. 11-cv-278-JD
Opinion No. 2012 DNH 041
Dr. Michael J. O’Connell’s
Pain Care Center, Inc. and
Michael J. O’Connell
O R D E R
Kaitlin Hudson brought state and federal claims against her
former employer, Dr. Michael J. O’Connell’s Pain Care Center,
Inc. (“Center”), and Dr. Michael J. O’Connell, arising from her
relationship with O’Connell and the conditions of her employment
at the Center.
In support of her negligence claim against
O’Connell and in opposition to his counterclaims for invasion of
privacy and defamation, Hudson moves to require O’Connell to
provide a blood sample for testing, as she proposes, to determine
whether he has herpes.
O’Connell objects to the testing.
Discussion
In her second amended complaint, Hudson alleges that
O’Connell negligently transmitted the herpes virus to her during
their sexual relationship.
O’Connell brings counterclaims for
invasion of privacy and defamation, alleging that Hudson falsely
told others that she had contracted herpes from O’Connell.
Hudson seeks an independent medical examination to test O’Connell
for herpes viruses, and O’Connell opposes the motion, arguing
that Hudson cannot show good cause for the test because the
existing test results are sufficient and further testing is
unnecessary.
The court is authorized to “order a party whose mental or
physical condition . . . is in controversy to submit to a
physical or mental examination by a suitably licensed or
certified examiner.”
Fed. R. Civ. P. 35(a)(1).
A motion to
compel an independent medical examination must be based on good
cause and “must specify the time, place, manner, conditions, and
scope of the examination, as well as the person or persons who
will perform it.”
Fed. R. Civ. P. 35(a)(2).
As the rule
suggests, the party seeking to compel an examination under Rule
35 bears the burden of establishing that the party’s physical
condition is in controversy and that good cause exists to compel
the examination.
Schlagenhauf v. Holder, 379 U.S. 104, 118-19
(1964); Flanagan v. Keller Prods., Inc., 2001 WL 1669379, at *1
(D.N.H. Dec. 18, 2001).
A party’s physical condition is in controversy if it is
asserted in support of or in defense to a claim.
379 U.S. at 119.
Schlagenhauf,
Good cause may be demonstrated by showing that
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the information cannot be obtained by other means and by showing
a reasonable basis to believe that an examination will provide
material information.
Robinson v. Miller, 2011 WL 2669304, at *2
(D. Me. July 7, 2011); see also Yarosevich v. Toyota Indus.
Corp., 2008 WL 2329331, at *1-*2 (D.N.H. June 5, 2008).
For
purposes of an order under Rule 35 to require a party to provide
a body fluid sample, such as a blood, courts have considered
whether the test results would be relevant to a claim in the
case, the extent of the intrusion into the party’s privacy due to
the test, and the protections to guard the information to avoid
privacy concerns.
D’Angelo v. Potter, 224 F.R.D. 300, 303 (D.
Mass. 2004).
A.
In Controversy
Hudson has tested positive for herpes viruses, HSV-I and
HSV-II, and alleges that she contracted herpes from O’Connell,
whom she suspects contracted herpes from another sexual partner.
O’Connell denies that he infected Hudson with herpes and brought
invasion of privacy and defamation claims based on his
allegations that Hudson falsely accused him of infecting her with
herpes.
Hudson’s negligence claim and O’Connell’s privacy and
defamation claims put the issue of whether O’Connell has herpes
in controversy.
3
O’Connell contends, however, that the issue of whether he
has herpes is not in controversy.
about HSV-II, not about HSV-I.
He contends that the case is
He provides his answers to
interrogatories, stating that he has never tested positive for
HSV-II; laboratory reports, showing the same thing; and the
affidavit of the accused “other woman” who states that she never
had a sexual relationship with O’Connell.1
He argues that
because the “other woman” denies a sexual relationship with him,
Hudson lacks evidence to support her negligence claim.
Irrespective of Hudson’s negligence claim, O’Connell’s
counterclaims raise the issue of whether he had herpes during his
relationship with Hudson and transmitted the disease to her.
However, in the context of this motion the court cannot resolve
the question of whether only HSV-II is at issue or whether both
HSV-I and HSV-II are at issue because the parties have failed to
present sufficient information on the matter.
The website
references O’Connell provides do not establish his theory, which
would likely require appropriate and admissible expert opinion
evidence.
Similarly, the explanation of the test results
provided in O’Connell’s memorandum, again with citations to
1
The two laboratory reports O’Connell provides appear to be
results from the same test.
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websites, does not establish that his interpretation of the
results is correct.
Therefore, although the question of whether O’Connell had
herpes at a time material to the claims in this case is in
controversy, the more specific issue of whether the claims are
limited to one or extend to both viruses is insufficiently
addressed.
B.
Good Cause
Hudson contends that good cause exists to support the blood
test she seeks because another test is necessary to determine the
validity of the testing results O’Connell provided.
Hudson
suggests that O’Connell’s test results are suspect because
O’Connell owns the medical center where the test was done.
Hudson also states that the test was done in response to her
allegations against O’Connell and that some of the results are
equivocal.
O’Connell responds that Hudson should have conducted
additional discovery about whether he had or has herpes before
seeking an independent test, that the test results he produced
are dispositive, and that although his blood was drawn at his
medical center, the testing or analysis of the sample was done by
an entity he does not control, “UMass Memorial Laboratories.”
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O’Connell also argues that the HSV-I results are immaterial
because Hudson tested positive for both HSV-I and HSV-II and
because HSV-II is more commonly associated with genital herpes.
As is noted above, the court cannot determine based on the
record provided whether or not both HSV-I and HSV-II are at issue
in this case.
If only HSV-II is relevant, then the test results
O’Connell provided show that he did not have HSV-II when he was
tested on December 14, 2010.2
Hudson suggests that the test
results are suspect because the blood was drawn at a clinic
O’Connell owns.3
To the extent Hudson challenges the reliability
of the chain of custody of the blood sample, she has not provided
any evidence, other than O’Connell’s ownership of the clinic,
that the sample was not properly drawn or handled.
For example,
Hudson provides no evidence from the person who drew the blood
sample or those who processed it to support her suspicions.
Therefore, Hudson has not carried her burden of showing good
2
In his deposition, O’Connell testified that he was last
tested in February or March of 2011, and that the results were
negative for HSV-II and borderline for HSV-I.
3
Hudson initially argued that the test or analysis of the
sample was also done by a clinic O’Connell owns. The laboratory
reports, however, indicate that the test results were produced by
UMass Memorial Laboratories, which is not owned or controlled by
O’Connell.
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cause to order O’Connell to undergo an independent blood test for
HSV-II.
If, as Hudson contends, HSV-I is also at issue, the results
of the test O’Connell provided are unclear.
The test report
states that “[r]epeat testing in 10-14 days may be helpful.”
O’Connell apparently underwent subsequent testing but did not
provide those results.
Courts generally have found that the privacy intrusion of a
blood drawing for purposes of testing is minimal.
See, e.g.,
United States v. Mitchell, 652 F.3d 387, 404 (3rd Cir. 2011);
Boroian v. Mueller, 616 F.3d 60, 65 (1st Cir. 2010); United
States v. Coccia, 598 F.3d 293, 299 (6th Cir. 2010).
Although
O’Connell argues that the test Hudson seeks would merely
duplicate the testing he has already done, the test apparently is
different from the test used by the UMass Memorial Laboratories.
Hudson has not explained the differences, however, nor shown that
the test she seeks is superior to the test done at UMass Memorial
Laboratories.
The burden is on Hudson to show good cause to compel
O’Connell to provide a blood sample for another herpes test.
Based on the record provided, Hudson has not carried her burden.
In addition, neither party has provided the court with sufficient
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information to decide the motion one way or the other.
The
parties can certainly undertake further discovery on this matter.
Conclusion
For the foregoing reasons, the plaintiff’s motion for a
physical examination (document no. 21) is denied without
prejudice to file a properly supported motion that addresses
whether both HSV-I and HSV-II are in controversy and the
evidentiary bases for good cause to order a blood test.
If a
further motion is filed, the parties must provide the court with
sufficient information to address the issues.
The defendant’s request for fees and costs is denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
February 8, 2012
cc:
William E. Christie, Esquire
John P. Sherman, Esquire
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