Vario v. Allstate Fire & Casualty Insurance Company

Filing 38

ORDER granting in part and denying in part defendant's 25 Motion to Compel signed by Judge Ricardo S Martinez.(RS)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

MICHAEL VARIO,
Plaintiff,

11
12
13
14
15

CASE NO. C16-1900RSM
ORDER GRANTING IN PART
DEFENDANT’S MOTION TO
COMPEL FRCP 35
EXAMINATION

v.
FIRST NATIONAL INSURANCE
COMPANY,
Defendant.

16
17
18

I.

INTRODUCTION

This matter is before the Court on Defendant First National Insurance Company’s

19 (“FNIC”) motion to compel a Rule 35 physical examination of Plaintiff Michael Vario. Dkt.
20 #25. Mr. Vario’s suit stems from his involvement in a three-car accident in which one driver
21 was underinsured. Following the accident, Mr. Vario sued, and eventually settled, his claims
22 against the underinsured driver and the insured driver.

Mr. Vario subsequently filed an

23 underinsured motorist claim with FNIC, his underinsured motorist insurance carrier; FNIC
24 denied Mr. Vario’s claim and Mr. Vario sued FNIC. FNIC now seeks a Rule 35 physical
ORDER GRANTING IN PART DEFENDANT’S MOTION TO COMPEL- 1

1
2

examination to address the issues of causation, the nature and extent of Mr. Vario’s injuries, as
well as Mr. Vario’s current and future prognosis. Id. at 9.
Mr. Vario does not agree with the scope of the Rule 35 examination FNIC requests, and

3
4
5
6
7
8
9

he argues good cause for a Rule 35 examination does not exist because he previously underwent
a Rule 35 examination in his underlying tort case against the two motorists involved in the
collision that allegedly injured him.1 Dkt. #33 at 1–2. Mr. Vario reasons he will be unfairly
prejudiced if FNIC can rely on two Rule 35 physical examinations to address the question of
causation, and he proposes allowing a Rule 35 examination as long as FNIC’s chosen Rule 35
doctor does not rely upon or consider the previous Rule 35 doctor’s medical opinion. Id. at 2–3.
For the reasons discussed herein, Defendant’s motion to compel a Rule 35 examination

10
11

of Mr. Vario is GRANTED IN PART.
II.

12

Mr. Vario was involved in a three-car accident on Interstate 5 in Whatcom County in May

13
14
15
16

BACKGROUND

2014. Dkt. #37 ¶¶ 9–14. At the time, Mr. Vario was a passenger in his co-worker’s car. Id. ¶ 12.
The two other drivers involved in the accident were Douglas McAcy and Homadokht Fattahi.
Id. ¶¶ 9–14. Mr. Vario alleges Mr. McAcy’s car struck the car he was in after Mr. McAcy

17 swerved to avoid hitting Ms. Fattahi’s car. Id. ¶¶ 13–14.
Because of the collision, Mr. Vario alleges he sustained “severe physical and mental pain

18

19 and suffering and injury,” and general damages (which includes “impairment of enjoyment of
20 life, disability and disfigurement”). Id. ¶ 15. Mr. Vario also alleges he has had to seek medical
21 treatment, has incurred transportation expenses to attend medical appointments, has incurred lost
22
23
24

1

Because Mr. Vario filed his Response two days late, FNIC asks the Court to strike Mr. Vario’s Response as
untimely. Dkt. #35 at 1–3. The Court declines to strike Mr. Vario’s Response, but reminds Mr. Vario that it is his
obligation to consult and comply with the Western District of Washington’s Local Civil Rules.

ORDER GRANTING IN PART DEFENDANT’S MOTION TO COMPEL- 2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

wages, and has incurred expenses for “essential services.” Id. Mr. Vario alleges that a proximate
cause of the collision was Mr. McAcy’s negligence. Id. ¶ 10. Mr. McAcy had a liability limit
of $50,000. Id. ¶ 11.
After the accident, in January 2015, Mr. Vario sued Mr. McAcy and Ms. Fattahi. See
Dkts. #1, Ex. A at ¶¶ 14, 16 and #26, Ex. A. As part of Mr. Vario’s suit against Mr. McAcy and
Ms. Fattahi, Mr. Vario underwent a court-ordered Rule 35 independent medical examination.
See Dkt. #26, Ex. H. On February 17, 2016, Dr. James M. Blue, a neurosurgeon, conducted a
medical evaluation of Mr. Vario’s post-collision injuries and a directed neuro skeletal
examination. Id. at 2–3. Dr. Blue opined on whether he believed Mr. Vario’s injuries were
caused by the May 2014 collision, on whether Mr. Vario had pre-existing conditions, and on
Mr. Vario’s condition and prognosis at the time of the examination. Id. at 13–14.
In June 2015, because Mr. Vario’s co-worker’s underinsured motorist (“UIM”) policy
includes passengers as “covered person[s],” and because Mr. McAcy’s liability insurance policy
limit was less than the damages Mr. Vario claims Mr. McAcy caused him, Mr. Vario filed a UIM
claim with Allstate Fire & Casualty Insurance Company (“Allstate”) for the damages caused by
Mr. McAcy. See Dkts. #1, Ex. A ¶¶ 12–14 and #37 ¶¶ 3, 16. Allstate’s UIM policy limit was

17 $100,000. Dkt. #37 ¶ 19. Allstate denied Mr. Vario’s UIM claim, and in November 2016,
18
19
20
21
22
23
24

Mr. Vario sued Allstate in the Superior Court of Washington for Whatcom County. See Dkt. #1,
Ex. A at 1. Allstate removed Mr. Vario’s suit to this Court in December 2016, and FNIC was
later granted leave to intervene. See Dkts. #1, #11 at 1, and #37 ¶¶ 3–4.
Mr. Vario’s claims against Allstate were eventually settled, and Allstate, FNIC, and
Mr. Vario agreed to a stipulation allowing Mr. Vario to amend his Complaint to name FNIC as
a defendant while dismissing Allstate from the matter. See Dkts. #31 at 2–3 and #37 ¶ 5.
Mr. Vario’s Amended Complaint alleges Mr. McAcy caused him damages in excess of $150,000,
ORDER GRANTING IN PART DEFENDANT’S MOTION TO COMPEL- 3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

while the underinsured motorist policy issued by FNIC has a coverage limit of $500,000. Dkt.
#37 ¶¶ 6, 16, 18, 19. Because the UIM claim Mr. Vario submitted to FNIC was denied, Mr. Vario
brought this action to recover UIM benefits he alleges FNIC is contractually obligated to cover.
Id. ¶¶ 20–22.
III.

LEGAL STANDARD

If an action pending before the Court places the mental or physical condition of a party
in controversy, Rule 35 of the Federal Rules of Civil Procedure allows the Court to order a party
to submit to a mental or physical examination “by a suitably licensed or certified examiner.”
FED. R. CIV. P. 35(a)(1). However, the Court’s order “may be made only on motion for good
cause and on notice to all parties and the person to be examined,” and it 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)(A)–(B). Parties requesting a Rule 35 examination
therefore must meet the following two requirements before a Rule 35 examination is ordered: (1)
establish that the physical or mental condition of a party is “in controversy”; and (2) establish
that “good cause” for ordering an examination exists. Ragge v. MCA/Universal Studios, 165
F.R.D. 605, 608 (C.D. Cal. 1995).
One purpose of Rule 35 is to “‘level the playing field’ between parties in cases in which

18 a party’s physical or mental condition is in issue.” Id. However, Rule 35 examinations may be
19 denied where additional relevant information will not be gained by the examination. See
20 Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964) (“The ability of the movant to obtain the
21 desired information by other means is also relevant.”). “Because of the intrusive nature of [Rule
22
23

35] examinations, they are not granted as a matter of right, but rather as a matter of discretion.”
Muller v. City of Tacoma, No. 14-cv-05743-RJB, 2015 WL 3793570, at *2 (W.D. Wash. June

24
ORDER GRANTING IN PART DEFENDANT’S MOTION TO COMPEL- 4

1
2

18, 2015) (citing Fed. R. Civ. P. 35(a); Coca-Cola Bottling Co. v. Negron Torres, 255 F.2d 149
(1st Cir. 1958)).
IV.

3
4
5
6
7
8
9
10
11
12
13
14
15
16

DISCUSSION

FNIC and Mr. Vario disagree on the propriety of a Rule 35 physical examination for two
reasons. First, while FNIC contends it meets the two requirements necessary to warrant a Rule
35 examination, Mr. Vario appears to oppose the scope of the Rule 35 examination requested.
Second, if the Court agrees that a Rule 35 examination is proper, the parties disagree on the extent
FNIC’s Rule 35 doctor may rely on Dr. Blue’s prior Rule 35 medical evaluation. The Court
addresses each issue in turn.
A. Propriety of a Rule 35 Examination
According to FNIC, Mr. Vario has “put the question of causation, nature and extent of
his neck injury/disability, and future prognosis in controversy . . . thus warranting a current
physical exam . . . to address those issues.” Dkt. #25 at 9. Mr. Vario does not dispute that he
has placed his physical condition in controversy, but instead appears to oppose the requested
scope of FNIC’s proposed Rule 35 examination. See Dkt. #33 at 2–3. Mr. Vario argues that
FNIC fails to demonstrate “good cause” to allow its proposed Rule 35 doctor to opine, as

17 previously opined upon by Dr. Blue, on the question of causation. Id. at 1–3. The Court agrees
18
19
20
21
22
23
24

that to the extent FNIC seeks a Rule 35 examination to address what caused Mr. Vario’s alleged
neck injury, good cause to allow a Rule 35 examination is not established. However, the Court
finds that FNIC has established good cause to allow a Rule 35 examination that addresses the
current condition and future medical prognosis of Mr. Vario’s physical injuries.
As an initial matter, the Court notes that FNIC has demonstrated, and Mr. Vario does not
dispute, that Mr. Vario’s current physical condition is in controversy. Mr. Vario’s Amended
Complaint evidences as much, as it alleges general and specific damages caused as a result of the
ORDER GRANTING IN PART DEFENDANT’S MOTION TO COMPEL- 5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

injuries he allegedly incurred as a result of Mr. McAcy’s negligence. See Schlagenhauf, 379
U.S. at 119 (“A plaintiff in a negligence action who asserts mental or physical injury . . . places
that mental or physical injury clearly in controversy and provides the defendant with good cause
for an examination to determine the existence and extent of such asserted injury.”).
FNIC also establishes good cause exists to allow a Rule 35 examination to assess Mr.
Vario’s current condition and future medical prognosis. The party moving for a Rule 35
examination can establish good cause by offering specific facts that justify the requested
discovery. Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 165 (N.D. Cal. 2013) (citing Haqq
v. Stanford Hosp. and Clinics, No. C 06-05444 JW (RS), 2007 WL 1593224, at *1 (N.D. Cal.
June 1, 2007)). Courts have considered the following factors when determining if good cause
for a Rule 35 examination exists: “(1) the possibility of obtaining the desired information by
other means, (2) whether plaintiff plans to prove her claim through the testimony of expert
witnesses, (3) whether the desired information is relevant, and (4) whether plaintiff is claiming
an ongoing injury.” Bridgham-Morrison v. Nat’l Gen. Assurance Co., Case No. C15-927RAJ,
2016 WL 231284, at *4 (W.D. Wash. Jan. 19, 2016) (citing Lopez v. City of Imperial, No. CIV.
13-0597-BEN WVG, 2014 WL 232271, at *3–4 (S.D. Cal. Jan. 21, 2014)). Here, FNIC

17 demonstrates that each of these factors support allowing a Rule 35 examination to assess Mr.
18
19
20
21
22
23
24

Vario’s current condition and future physical prognosis.
First, although the record indicates that Mr. Vario has been examined by his own doctors
and a prior Rule 35 independent medical examiner, the Court agrees those examinations, which
are over a year old, do not provide FNIC with the information it seeks about Mr. Vario’s current
physical condition. Second, FNIC points out, and Mr. Vario does not dispute, that Mr. Vario
intends to call at least two medical experts at trial to testify about the extent of the damages
caused by his physical injuries. See Dkts. #25 at 9 and #33 at 1–3. Finally, Mr. Vario claims his
ORDER GRANTING IN PART DEFENDANT’S MOTION TO COMPEL- 6

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

injuries, and the damages stemming from those injuries, are ongoing, thus making a medical
examination relevant. Consideration of these factors thus supports finding good cause exists to
allow a Rule 35 examination to assess Mr. Vario’s current condition and future medical
prognosis.
However, FNIC does not establish good cause exists to allow its identified Rule 35 doctor
to opine on the question of causation of Mr. Vario’s alleged injuries. As noted by Mr. Vario, and
as supported by the record, although the question of causation is relevant, FNIC does not try to
explain why it cannot rely on the opinions of Dr. Blue, the Rule 35 examining doctor who
previously examined Mr. Vario, to address the question of causation. Considering that Dr. Blue
has already opined on causation, FNIC has not demonstrated it cannot obtain an independent
assessment on this issue by other means. The scope of the Rule 35 examination requested by
FNIC will therefore be limited to an examination of Mr. Vario’s current condition and future
medical prognosis.
In summary, because FNIC demonstrates that Mr. Vario’s current physical condition is
in controversy, and because good cause exists for a medical assessment of Mr. Vario’s current
and ongoing physical injuries, Defendant’s motion to compel is GRANTED IN PART.
B. Propriety of Imposing Limitations on the Information Considered by
FNIC’s Rule 35 Doctor
Finally, the Court does not agree that Mr. Vario may impose limitations on the
information FNIC’s Rule 35 doctor considers or relies upon in forming his medical opinion.
Mr. Vario’s request for imposing limitations appears motivated by the concern that FNIC’s Rule
35 doctor will opine on causation. See Dkt. #33 at 2–3 (“If the Court allows Dr. Kline to conduct
the exam, Defendant FNIC will be allowed to have two different doctors challenging causation.
The solution is to allow the Defendant to choose: have Dr. Blue perform the second examination

24
ORDER GRANTING IN PART DEFENDANT’S MOTION TO COMPEL- 7

1
2
3
4
5
6
7

or have Dr. Kline perform the second examination, but not use or rely on Dr. Blue’s first report.”).
However, as explained in section A., FNIC’s Rule 35 doctor may not opine on the issue of
causation. Additionally, even if the scope of the Rule 35 examination included causation, Mr.
Vario does not cite to any authority to support the proposition that a Rule 35 doctor cannot rely
on or consider the findings of prior Rule 35 examinations. Consequently, the Court will not
impose limitations on the information FNIC’s chosen Rule 35 doctor may consider in opining on
Mr. Vario’s current physical condition and future prognosis.
V.

8
9
10
11
12
13
14
15
16
17

CONCLUSION

Having reviewed the relevant pleadings, the declarations and exhibits attached thereto,
and the remainder of the record, the Court hereby GRANTS IN PART FNIC’s motion to
compel a Rule 35 examination (Dkt. #25). The Court hereby finds and ORDERS:
1. Mr. Vario is ordered to attend a Rule 35 examination conducted by Dr. Steven
Klein, at a mutually agreeable place, on September 12, 2017 at 1:00 p.m.;
2. The scope of the physical examination is limited to an evaluation of
Mr. Vario’s current physical condition and future medical prognosis in light of
his ongoing complaints of pain and disability; and
3.

Mr. Vario may not impose limitations on the information Dr. Klein considers
during the Rule 35 examination.

DATED this 26 day of July, 2017.

18
19
20

A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

21
22
23
24
ORDER GRANTING IN PART DEFENDANT’S MOTION TO COMPEL- 8