Smolko v. Unimark Lowboy Transportation, LLC et al
Filing
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MEMORANDUM OPINION - IT IS ORDERED that plaintiff=s third-party observer may not attend the orthopedic examination of the plaintiff scheduled by Dr. Harvey. Signed by Magistrate Judge Martin C. Carlson on May 30, 2018. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL SMOLKO,
Plaintiff,
v.
UNIMARK LOWBOY TRANS.,
LLC., et al.,
Defendants
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Civil Action No. 1:17-CV-1802
(Chief Judge Conner)
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
Introduction
In this diversity lawsuit we are asked to address the question of whether the
plaintiff is entitled to compel the presence of a third-party observer in a physical
examination conducted pursuant to Rule 35 of the Federal Rules of Civil Procedure.
In accordance with the greater weight of authority which has considered this
question, we conclude that the plaintiff has not made the requisite showing that
would entitle the plaintiff to insist upon the presence of a third-party observer in this
physical examination. Therefore, for the reasons set forth below, we will decline the
invitation to direct the presence of a third party at this physical examination.
II.
Statement of Facts and of The Case
The pertinent facts in this case can be simply stated: This is a diversity
jurisdiction personal injury lawsuit which arose out of what is alleged to have been a
July 30, 2016 automobile accident between the plaintiff’s vehicle and a tractor trailer
owned and operated by the defendants. (Doc.1.) This case is now proceeding to
discovery, with a physical examination of Smolko scheduled by the defendants.
According to the parties, the orthopedist conducting this examination, Dr. Charles
Harvey, has a policy of not permitting third-party observers to attend such
examinations. Plaintiff’s counsel, therefore, seeks intervention by the court in the
form of an order authorizing a nurse observer retained by the plaintiff to attend and
passively observe this orthopedic examination.
The Defendants object to the
compelled presence of a third party observer at this examination, arguing that case
law construing Rule 35 of the Federal Rules of Civil Procedure, which governs
examinations of this type, disfavors this practice.
The parties have skillfully and deftly presented this issue to the court in a
telephonic oral argument conducted on May 24, 2018. Mindful of the fact that this
examination is scheduled for June, 2018, for the reasons set forth below, we will
deny this request for a third-party observer at this medical examination.
III.
Discussion
Rule 35 (a) of the Federal Rules of Civil Procedure governs medical
examinations of parties in federal civil litigation, and provides in pertinent part as
follows:
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(a) Order for an Examination.
(1) In General. The court where the action is pending may 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. 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.
(2) Motion and Notice; Contents of the Order. The order: (A) may be
made only on motion for good cause and on notice to all parties and the
person to be examined; and (B) 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).
By specifying that the court may determine Athe 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)(B), Rule 35 consigns the procedures to be used in conducting
these examinations to the sound discretion of the court, an approach that is
consistent with the general guidance of the rules which provide that issues relating to
the scope of discovery rest in the sound discretion of the Court. Wisniewski v.
Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987).
A court’s decisions
regarding the conduct of discovery, therefore, will be disturbed only upon a showing
of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d
Cir. 1983). This far-reaching discretion extends to rulings by United States
Magistrate Judges on discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
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discretion in resolving discovery disputes. See Farmers & Merchs.
Nat'l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , Acourts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.@ Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling Ais entitled to great deference and is reversible
only for abuse of discretion.@ Kresefky v. Panasonic Commc'ns and
Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
In this case we are asked to exercise our discretion and permit a third-party
medical observer retained by the plaintiff to attend the examination. In considering
this issue, we note that Rule 35 does not, by its terms, specify who may attend a
medical examination undertaken in connection with civil litigation. While the rule is
silent on this issue, the courts have spoken, albeit with several different voices.
The majority rule adopted by the federal courts is that the court may, and often
should, exclude third-party observers, including counsel, from medical or
psychiatric evaluations. See, e.g., Calderon v. Reederei-Claus-Peter Offen GmbH &
Co., 258 F.R.D. 523, 526-7(S.D. Fla. 2009)(Athe majority of federal courts have held
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that third parties should be excluded absent special circumstances. See, e.g.,
Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 628-34
(D.Kan.1999); McKitis v. Defazio, 187 F.R.D. 225, 228 (D.Md.1999); Ali v. Wang
Laboratories, Inc., 162 F.R.D. 165, 168 (M.D.Fla.1995); Tomlin v. Holecek, 150
F.R.D. 628, 631 (D.Minn.1993); Wheat v. Biesecker, 125 F.R.D. 479, 480
(N.D.Ind.1989); Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543, 546
(S.D.N.Y.1978).@) In reaching this conclusion, most courts agree that:
[T]he need for effective . . . examinations militates against allowing
an observer who could potentially distract the examining [expert] and
examine thereby compromising the results of the examination.
Moreover, the presence of the observer interjects an adversarial,
partisan atmosphere into what should be otherwise a wholly objective
inquiry. See Jacob v. Chaplin, 625 N.E.2d 486, 492 (Ind.App.1993).
Additionally, it is recognized that . . . examinations necessitate an
unimpeded, one-on-one exchange between the doctor and the patient.
Tomlin v. Holecek et al., 150 F.R.D. 628, 632 (D.Minn.1993); Cline v.
Firestone, 118 F.R.D. 588, 589 (S.D.W.Va.1988); Brandenberg v. El
Al Israel Airlines, 79 F.R.D. 543, 544 (S.D.N.Y.1978); Swift v. Swift,
64 F.R.D. 440, 443 (E.D.N.Y.1974). The Court finds that the presence
of an observer would lend a degree of artificiality to the examination
that would be inconsistent with the applicable professional standard.
Shirsat v. Mutual Pharmaceutical Co., Inc., 169 F.R.D. 68, 71 (E.D.Pa.1996).
Thus, in this regard A>the party seeking the attendance of a third party at the
examination bears the burden of showing Agood cause@ for such attendance pursuant
to Rule 26(c).= Reyes v. City of New York, No. 00 Civ. 2300(SHS), 2000 WL
1528239, at *3 (S.D.N.Y. Oct.16, 2000) [and], >most courts start with a presumption
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against the presence of third persons, and then go on to consider whether special
circumstances have been demonstrated in a particularly case.= @ Favale v. Roman
Catholic Diocese of Bridgeport, 235 F.R.D. 553, 556 (D.Conn.2006). Thus, as a
threshold matter, we find that the plaintiff as the person seeking to introduce an
observer into this process, bears the burden of proving good cause. Tarte v. United
States, 249 F.R.D. 856, 859 (S.D. Fla. 2008).
In the past, we have, in fact, followed this line of authority when denying
requests for third-party observers at psychiatric examinations. See M.S. v. Cedar
Bridge Acad., No. 1:08-CV-2271, 2011 WL 1838885, at *1 (M.D. Pa. May 13,
2011). Acknowledging this legal authority, Smolko nonetheless argues that he
should be permitted to have a nurse observer present for this orthopedic
examination. On this score Smolko contends, first, that the case law forbidding
third-party observers in examinations typically arise in the context of psychiatric
examinations where the dangers of outside influences on the examination process
are greater. Smolko therefore invites us to refrain from extending our holding in
M.S., which dealt with psychiatric evaluations, to physical examinations. Smolko
also asserts that he has shown good cause to conduct this examination in the
presence of a third-party observer since Smolko anticipates that there may be a
credibility contest at trial between the plaintiff and this physician. The plaintiff
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alleges that the presence of a third-party observer would assist in addressing these
witness credibility concerns at trial and constitutes good cause justifying the
presence of the third party observer. Finally, the plaintiff urges us to follow a path
embraced by some federal courts and Pennsylvania Rule of Civil Procedure 4010,
and permit a party-representative to attend a medical examination when the
examination entails a physical, rather than psychological, assessment of a party. See
Gensbauer v. May Department Stores, 184 F.R.D. 552 (E.D. Pa. 1999).
We will decline this invitation and instead follow the majority view which
does not permit third-party observers in this examination setting.
In reaching this result, we acknowledge that many of the cases interpreting
Rule 35 arise in the context of a psychiatric examination. However, it is equally true
that numerous cases have extended this principle, barring third party observers from
medical examinations, to physical examinations as well. See e.g., Rogers v. Averitt
Express, Inc., No. CV 15-706-JWD-RLB, 2016 WL 4499089, at *2 (M.D. La. Aug.
26, 2016); McKisset v. Brentwood BWI One LLC, No. WDQ-14-1159, 2015 WL
8041386, at *3 (D. Md. Dec. 4, 2015); Calderon v. Reederei Claus-Peter Offen
GmbH & Co., 258 F.R.D. 523, 524 (S.D. Fla. 2009); Tarte v. United States, 249
F.R.D. 856, 859 (S.D. Fla. 2008); Holland v. United States, 182 F.R.D. 493, 495
(D.S.C. 1998); Romano v. II Morrow, Inc., 173 F.R.D. 271, 272 (D. Or. 1997).Thus,
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the distinction between physical and psychiatric examinations urged by the plaintiff
has not been embraced by the courts. Moreover, the rationale behind the general
policy disfavoring third-party observers at these examinations, the concern that the
presence of the observer “interjects an adversarial, partisan atmosphere into what
should be otherwise a wholly objective inquiry,” and “would lend a degree of
artificiality to the examination that would be inconsistent with the applicable
professional standard”, see Shirsat v. Mutual Pharmaceutical Co., Inc., 169 F.R.D.
68, 71 (E.D.Pa.1996), seems equally applicable to both physical and psychiatric
examinations since both examinations involve an effort to find objective evidence
relating to subjective symptoms, and the presence of on-lookers at an examination
may distract from this exercise in either case.
We further conclude that the concerns voiced by the plaintiff that the absence
of a third-party observer creates an unfair imbalance between the plaintiff and any
examining physician a trial are insufficient to meet the good cause standard
prescribed by cases construing Rule 35. At the outset, this argument assumes too
much in our view since, taken to its logical extreme, this argument would compel a
third-party observer’s presence at all physical and mental examinations, something
the rules plainly do not contemplate. Moreover, to the extent that these concerns
exist there are other, less drastic means of addressing them. In this regard:
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[C]ourts have noted that Rule 35 and the adversary process provide
other safeguards for plaintiffs who submit to Rule 35 examinations.
Plaintiffs receive a Rule 35 examination report and then have the
opportunity to depose the physician, cross-examine him or her, and
introduce contrary expert evidence. See Barrett v. Great Hawaiian
Cruises, Inc., 1997 WL 862762 (D.Ha.1997). Additionally, should the
physicians improperly inquire, plaintiffs have the opportunity to seek to
exclude such questioning from trial. See Cline v. Firestone Tire &
Rubber Co., 118 F.R.D. 588 (S.D.W.Va.1988).”
Tarte v. United States, 249 F.R.D. 856, 859 (S.D. Fla. 2008). Given the availability
of these other tools to ensure a level litigation playing field, we believe that
introduction of third-party observers into physical exams is unnecessary.
Finally, while the plaintiff has urged us to follow Gensbauer v. May
Department Stores, 184 F.R.D. 552 (E.D. Pa. 1999) and the Pennsylvania procedural
practice which allows third-party observers at medical examinations, arguing that
the Pennsylvania practice rule is persuasive authority this Pennsylvania rule is not a
substantive state legal standard which we are obliged to adopt under Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938) when we exercise our diversity jurisdiction. In this
regard we note that: AErie involved the constitutional power of federal courts to
supplant state law with judge-made rules. In that context, it made no difference
whether the rule was technically one of substance or procedure; the touchstone was
whether it >significantly affect[s] the result of a litigation.= Guaranty Trust Co. v.
York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).@ Shady Grove
Orthopedic Associates, P.A. v. Allstate Ins. Co., 130 S.Ct. 1431, 1442 (2010).
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Judged against this benchmark, Pennsylvania=s Rule 4010, which permits counsel to
attend physical and mental examinations, is not an outcome-determinative rule of
substance which binds this court. Rather, it is simply a procedural preference
expressed by the state courts which does not control our exercise of discretion under
Rule 35 of the Federal Rules of Civil Procedure. Moreover, it is a procedural
preference which this court has declined to follow on a number of occasions in favor
of the prevailing federal practice under Rule 35 of excluding third party observers.
See e.g., King v. Mansfield Univ. of Pennsylvania, No. 1:11-CV-1112, 2014 WL
563323, at *3 n. 1 (M.D. Pa. Feb. 11, 2014); M.S. v. Cedar Bridge Acad., No.
1:08-CV-2271, 2011 WL 1838885, at *4 (M.D. Pa. May 13, 2011).
With this understanding, notwithstanding the skill and vigor of the plaintiff’s
advocacy, we decline to follow the path proposed by the plaintiff and the
Pennsylvania rule. Instead, we adhere to the majority view expressed by the federal
courts interpreting Rule 35 of the Federal Rules of Civil Procedure, which
recognizes the Aneed for effective . . . examinations militates against allowing an
observer who could potentially distract the examining [expert] and examinee
thereby compromising the results of the examination,[and] the presence of the
observer interjects an adversarial, partisan atmosphere into what should be
otherwise a wholly objective inquiry@ Shirsat v. Mutual Pharmaceutical Co., Inc.,
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169 F.R.D. 68, 71 (E.D.Pa.1996). Therefore, in the exercise of our discretion we will
decline the plaintiff=s invitation to order that this physical examination be conducted
in the presence of a third-party observer.
IV.
Conclusion
For the foregoing reasons, IT IS ORDERED that plaintiff=s third-party
observer may not attend the orthopedic examination of the plaintiff scheduled by Dr.
Harvey.
So ordered this 30th day of May, 2018.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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