United States District Court, M.D. Louisiana
MARIETTA SMITH CARLIN, ET AL.
UNITED SPECIALTY INSURANCE COMPANY, ET AL. GABRIELLE GUILLORY V. UNITED SPECIALTY INSURANCE COMPANY, ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion for Physical and
Neurological Examination of Plaintiff (R. Doc. 20) filed on
May -24, 2018. The motion is opposed. (R. Doc. 22).
Smith Carlin (“Plaintiff”) alleges that she was
involved in an automobile accident on September 9, 2016. (R.
Doc. 1-2 at 3). Ms. Carlin seeks recovery for physical pain
and suffering, mental anguish, loss of enjoyment of life,
disfigurement and disability, medical expenses, lost
wages/earnings, property damage, and all other recoverable
damages. (R. Doc. 1-2 at 4-5).
to Plaintiff, she has suffered injuries to her neck and lower
back, is currently under the care of three physicians, and
has undergone a lumbar transforaminal epidural steroid
injection, a lumbar dorsal medial branch block, and two
cervical radiofrequency ablation procedures. (R. Doc. 22 at
2). There is no dispute that Plaintiff agreed to appear for
an independent medical examination (“IME”) to be
conducted by Dr. Charles Kaufman, a licensed neurologist, on
May 15, 2018. (R. Doc. 22 at 2).
before the exam was to take place, however, Plaintiff's
counsel requested a copy of all relevant paperwork (i.e.,
patient intake forms and history questionnaires) from Dr.
Kaufman's office prior to Plaintiff's examination.
(R. Doc. 20-3 at 1). When Dr. Kaufman declined to provide the
documents on the basis that he wished to obtain an accurate
and complete history from the Plaintiff herself as part of
the examination, Plaintiff's counsel instructed Plaintiff
not to appear for the IME. (R. Doc. 22-1).
support of the instant motion, Defendant asserts that it has
established “good cause” for a Rule 35
examination in light of Plaintiff's alleged physical
injuries and Plaintiff's original agreement to undergo
the examination. (R. Doc. 20-2 at 3). Defendant seeks an
order setting a Rule 35 examination without the condition
that Dr. Kaufman provide any forms to Plaintiff's counsel
prior to the examination. (R. Doc. 20-2).
concedes that the “only factor at issue” with
regard to the proposed Rule 35 examination is whether the
patient questionnaire forms from Dr. Kaufman's office
must be provided to her counsel prior to the examination. (R.
Doc. 22 at 2). In support of such a condition, Plaintiff
argues that it is her counsel's duty to ensure the forms
seek appropriate and relevant information, and to advise her
of her rights in light of the forms. (R. Doc. 22 at 2-3).
Plaintiff further argues that being provided the forms prior
to the examination will minimize her pain and anxiety. (R.
Doc. 22 at 3). Finally, Plaintiff asserts that it is not her
counsel's intent to complete the forms on her behalf, but
to simply review the document to ensure that a
“complete and accurate record is, in fact, being
provided.” (R. Doc. 22 at 4).
provides that the “court where the action is pending
may order a party whose mental or physical
condition--including blood group--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). Such an
order may be issued “only on motion for good cause and
on notice to all parties and the person to be examined”
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).
“Good cause” requires a showing of specific facts
that demonstrate the need for the information sought and lack
of means for obtaining it elsewhere. Schlagenhauf v.
Holder, 379 U.S. 104, 118 (1964); see also Miller v.
Credit, No. 12-00138, 2013 WL 375551, at *2 (M.D. La.
Jan. 30, 2013).
decision as to whether or not to order an independent medical
examination under Rule 35(a) rests in the court's sound
discretion.” Glaze v Bud's Boat Rental,
Inc., No. 93-1334, 1993 WL 441890, *1 (E.D. La. Oct. 21,
1993). Furthermore, “[a]lthough Rule 35 examinations
may be ordered ‘only on motion for good cause
shown,' and use of the rule to compel such examinations
is not unfettered, Rule 35(a) generally has been construed
liberally in favor of granting discovery.” Grossie
v. Fla. Marine Transporters, Inc., No. 04-0699, 2006 WL
2547047, at *2 (W.D. La. Aug. 31, 2006).
have generally prohibited third parties, particularly
attorneys, from being present during an IME evaluating the
plaintiff's mental condition. Terry v. Promise Hosp.
Of Ascension, Inc., No. 13-128, 2014 WL 1239397, at * 3
(M.D. La. March 25, 2014)). This is primarily because
“[t]hird party observers may, regardless of their good
intentions, contaminate a mental examination.”
Id. (quoting Ragge v. MCA/Universal
Studios, 165 F.R.D. 605, 609-10 (C.D. Cal.
allowing attorneys to be present during an IME may hinder the
examination, Courts have held that providing patient intake
forms and history questionnaires “in advance to the
Plaintiff's attorney may interfere with the examination
process.” Gade v. State Farm Mut. Ins. Co.,
No. 14-48, 2015 WL 12964613, at *5 (D. Vt. Jan. 2, 2015)
(allowing Plaintiff's counsel to assist in drafting of a
“consent form” but requiring Plaintiff to
complete a “pain diagram and health history form”
without counsel's assistance); see Sanders v.
Holdings, No. 11-1590, 2012 WL 2001967, at *4 (S.D. Cal.
June 4, 2012) (“To the extent that forms or
questionnaires are required to be completed, they shall be
completed by Plaintiff without assistance.”); see
also Goggins v. State Farm Mut. Auto. Ins. Co., No.
10-00826, 2011 WL 1660609, at *3 (M.D. Fla. May 3, 2011)
(“Plaintiff must complete all reasonable paperwork and
answer all reasonable questions about her medical history in
the context of her Rule 35 examination.”);
Hertenstein v. Kimberly Home Health Care, Inc., 189
F.R.D. 620, 626 (D. Kan. 1999) (“An examining physician
under Rule 35(a) may ask the examinee such questions as are
necessary to form an opinion about her condition and the
cause of the alleged injury.”); but see Hughes v.
Diebold, Incorporation, No. 11-222, 2011 WL 13217817, at
*3 (E.D. Tex. Oct. 26, 2011) (“[I]f Defendant intends
to have [Plaintiff] fill out questionnaires or paperwork,
said paperwork should be delivered to Plaintiffs'
counsel's office no later than 72 hours prior to the
examination. Plaintiffs' counsel will instruct
[Plaintiff] to fill out the paperwork and bring it to the
considered the record, the Court finds that it is appropriate
in this instance to require Plaintiff to complete all
reasonable paperwork and to answer all reasonable questions
about her medical history without assistance of counsel.
“Rule 35(a) examinations, like all other forms of
discovery, are subject to the general provision of Rule 26(c)
that the court may make any order which justice requires to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Booth v.
Mohave Transp. Ins. Co., No. 13-6746, 2014 WL 3881203,
at *5 (E.D. La. Aug. 6, 2014) (citations omitted). Plaintiff
has not, however, provided any factual information specific
to her situation (such as diminished mental capacity) that
would merit a finding that her counsel should have an
opportunity to review relevant forms and questionnaires and
guide Plaintiff through the process of providing answers.
IT IS ORDERED that Defendants' Motion
for Physical and Neurological Examination of Plaintiff (R.
Doc. 20) is GRANTED as set forth below.
To be determined based on mutual agreement. The examination
must, however, ...