Opinion
CV136034991S
04-21-2016
Karina Altieri v. D'Andrea Corporation dba Dunkin Donuts
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR ORDER (#121)
Robin L. Wilson, J.
The case presently before this court arises out of a December 17, 2010 slip and fall. The complaint dated December 12, 2012, alleges that the plaintiff, Karina Altieri was an invitee at defendant, Dunkin Donuts and while walking down a flight of stairs, she was caused to slip and fall on a patch of frozen spilled coffee. The plaintiff alleges that as a result of her fall, she suffered injuries of a serious and painful and permanent nature to her head, neck and back.
On March 14, 2016, the defendant filed a Motion to Compel Plaintiff to Attend an Independent Medical Exam (#121). In its motion, the defendant represents that on or about February 24, 2016, counsel for the defendant contacted plaintiff's counsel regarding scheduling an IME and was informed that the plaintiff currently resides in Florida. The plaintiff's attorney advised counsel that the plaintiff would not return to Connecticut for an IME and that defendant should schedule the IME in Florida where the plaintiff presently resides. The plaintiff brought this action in Connecticut, and at that time was residing in Guilford. In addition, the incident occurred in Guilford, Connecticut. The matter is scheduled for trial on October 18, 2016. The defendant argues that Connecticut is the proper venue for an IME and that the court should compel the plaintiff's attendance at the IME to be conducted no later than June 30, 2016. Defendant further requests the court to order plaintiff to pay the fees and expenses associated with the bringing of the present motion as well as any no show fees associated with the plaintiff's failure to attend the scheduled IME.
On March 16, 2016, the plaintiff filed an objection stating that she has permanently relocated to Jacksonville, Florida; that it would be a financial hardship for her to travel to Connecticut and pay for airfare, car and accommodations; and that because the defendant represents a large national insurance corporation, it could easily locate a doctor in the Jacksonville, Florida area to conduct the IME.
The motion to compel was scheduled as take papers on this court's April 4, 2016, nonarguable calendar.
DISCUSSION
General Statutes § 52-178a, which governs the physical examination of plaintiff's in personal injury cases, provides: " In any action to recover damages for personal injuries, the court or judge may order the plaintiff to submit to a physical examination by one or more physicians or surgeons. No party may be compelled to undergo a physical examination by any physician to whom he objects in writing submitted to the court or judge."
Similarly, Practice Book § 13-11(b) provides in relevant part: " In the case of an action to recover damages for personal injuries, any party adverse to the plaintiff may file and serve . . . a request that the plaintiff submit to a physical or mental examination at the expense of the requesting party. That request shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. Any such request shall be complied with by the plaintiff unless, within ten days from the filing of the request, the plaintiff files in writing an objection thereto specifying to which portions of said request objection is made and the reasons for said objection. The objection shall be placed on the short calendar list upon the filing thereof. The judicial authority may make such order as is just in connection with the request. No plaintiff shall be compelled to undergo a physical examination by any physician to whom he or she objects in writing."
Both the statute and the Practice Book provision make clear that the court cannot compel the plaintiff to submit to a medical examination by any physician to whom the plaintiff has objected in writing. However, the Practice Book mandates that an objection to a request for a medical examination be docketed on the short calendar, and contemplates court involvement by explicitly stating that " [t]he judicial authority may make such order as is just in connection with the request."
The issue of an objection to medical examinations has been considered by the superior court on numerous occasions, including by this court. The results have varied due to the seemingly contradictory sentences of the statute which authorizes independent medical examinations. As set forth above, the first sentence authorizes the court to order an independent medical examination while the second sentence allows a plaintiff to refuse. There are a number of superior court decisions that have attempted to resolve this contradiction but no binding appellate authority. There is agreement that the statute clearly allows for the court to order an independent medical examination. The tension lies where the court is asked to interpret the second sentence allowing for the plaintiff's refusal. Is the right of the plaintiff to refuse such an examination absolute or can the court look to the reasonableness of the objection in determining the outcome of the objection? The statute as it exists today (which has not been amended since its enactment in 1965) is silent on this issue.
A technical revision was made by Public Acts, 1982, No. 82-160, § 83.
Two decisions have tackled this issue and have extensively discussed the legislative history behind the statute. In Privee v. Burns, 46 Conn.Supp. 301, 749 A.2d 689 (1999), the court found that General Statutes § 52-178a gives the plaintiff an absolute right to refuse to undergo a physical examination. When the legislation was originally proposed and passed by the house of representatives, the statute contained language which allowed a plaintiff to object for good cause shown. When the senate discussed the statute, an amendment was proposed and adopted which made significant changes to the proposed statute and deleted the provision for good cause. In Privee, Judge Blue concluded that the rule and statute meant exactly what they said, and that the court, therefore, had no ability to compel any plaintiff to be examined by any physician to which he or she did not consent, no matter how many times the plaintiff objected and no matter how frivolous the reason might appear. Id., 335. In reaching this conclusion, however, Judge Blue noted that the defendant was not without a remedy, as defense attorneys were free to cross examine plaintiffs about their reasons for refusing to be examined and, perhaps, to request a right to argue to the jury with regard to an adverse inference to be drawn by the unreasonable failure to submit to such an examination.
It is clear that the Superior Court bench has now crafted several approaches to the issue, and in Wallace v. Commerce Properties, Inc., Superior Court, judicial district of New Haven, Docket No. CV-95-0377552, 1999 WL 1207124 (November 24, 1999) (26 Conn. L. Rptr. 25, 26) (Alander, J.), the court divided the various Superior Court decisions on the subject into three categories: " (1) the pragmatic approach which limits the plaintiff's right to object to grounds that are reasonable; [see Moore v. Minton, supra, 23 Conn. L. Rptr. 109; Fabozzi v. National R.R. Passenger Corp., Superior Court, judicial district of New Haven, Docket No. 245450 (October 25, 1988) (26 C.S.C.R. 889) (Corradino, J.); LeBlanc v. Cambo, 26 Conn.Supp. 338, 223 A.2d 311 (1966)]; (2) the absolutist approach which holds that a plaintiff has an absolute and unconditional right to object to a particular physician; [see Dittman v. Spotten, Superior Court, judicial district of New London, Docket No. 541013, 1998 WL 144923 (March 16, 1998) (21 Conn. L. Rptr. 414) (Hurley, J.); Agro v. Sender, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-90-030861S (March 11, 1991) (3 Conn. L. Rptr. 315) (Jones, J.); Mulligan v. Goodrich, 28 Conn.Supp. 11, 246 A.2d 206 (1968); ] and (3) the modified absolutist approach which opines that while a plaintiff has an absolute right to object to a particular physician the exercise of that right can be sanctioned in extreme cases; [see Privee v. Burns, supra, 46 Conn.Supp. 301, 749 A.2d 689]." This court has authored several decisions on the issue and has adopted the pragmatic approach by taking into consideration the reasonableness of the grounds for the plaintiff's objection. See Miska v. Schurk, Superior Court, judicial district of New Haven, Docket No. CV-11-6019169S, (December 12, 2012, Wilson, J.); Sirot v. Amica Mut. Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-10-6008639S, (November 8, 2012, Wilson, J.); Rana v. Hazard, Superior Court, judicial district of New Haven, Docket No. CV-11-6019197S (Oct. 5, 2012, Wilson, J.) . The court will take this approach in the present case and will therefore evaluate the reasonableness of the objection in the context of the particulars of the case.
Typically, a plaintiff's objection to a request for a medical examination is to the qualifications of the particular examiner, see e.g., Rampulla v. Fulton, Superior Court, judicial district of Hartford at Hartford, Docket No. 030823359 (October 6, 2004, Shapiro, J.) (overruling plaintiff's objection which asserted that examiner's practice was more expert testimony rather than clinical and that he did not specialize in treatment of adolescents).
Here, the plaintiff objects not to the particular doctor but rather objects to the medical examination taking place in Connecticut. In other words, the plaintiff offers no objection to the qualifications of the doctor, but rather argues that it would be unduly burdensome for her to attend a medical examination in Connecticut because she lives in Jacksonville, Florida, and it would be a financial hardship for her to travel to Connecticut and pay for airfare, car and accommodations.
Both General Statutes § 52-178a and Practice Book § 13-11(b) are silent regarding the attendance of out-of-state plaintiffs at medical examinations within this state. Interestingly, Practice Book § 13-29(b) does address compelling the attendance of an out-of-state plaintiff at a deposition within Connecticut: " A plaintiff who is not a resident of this state may be compelled . . . to attend at the plaintiff's expense an examination in the county of this state where the action is commenced or is pending or at any place within thirty miles of the plaintiff's residence or within the county of his or her residence in such other places as is fixed by order of the judicial authority. Practice Book § 13-29(b). " It seems only fair that a party who as a plaintiff takes advantage of our court system by initiating litigation in our state can be required under Practice Book Rule § 13-29(b) to be deposed in our state if he or she is an out-of-state resident." Miller v. Option One Mortgage, Superior Court, judicial district of New Haven, Docket No. 05 4006787 (January 26, 2006, Corradino, J.) . Likewise, the plaintiff in the present case, initiated the action while residing in Guilford, Connecticut, and the incident occurred in Guilford, Connecticut. Thus, it would seem only fair that, because the plaintiff, who has taken advantage of our court system, initiated this litigation in Connecticut, and the incident occurred in Connecticut, the defendant can choose an IME doctor in this state. Thus, the court concludes that the plaintiff's ground for objecting to the IME is unreasonable.
This court's research revealed a handful of Connecticut trial court decisions addressing the reasonableness of an objection to a medical examination based upon distance. The courts have found such objections reasonable in Bonaldi v. Gilbert, Superior Court, judicial district of Waterbury, Docket No. 02 0174598 (July 1, 2004, Alvord, J.) (plaintiff resided somewhere in Connecticut, would agree to see certain Waterbury doctors, and objected to examination by Stratford doctor, also claiming bias) and in Hennessey v. Lawless, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 01 0076343 (March 31, 2004, Bear, J.) (where plaintiff resided in Beacon Falls and examining doctor was 75 miles away in Norwich). Such objections have been found unreasonable in Hansen v. Harrison, Superior Court, judicial district of New Haven, Docket No. CV-07-5009104S (October 8, 2008, Bellis, J.) (where plaintiff resided in Iowa and attended college in Nebraska, objected to medical examinations in Connecticut); Serra v. Roi Highland, Inc., Superior Court, judicial district of Waterbury, Docket No. 99 0154900 (July 1, 2004, Alvord, J.) (where plaintiff resided in Florida but would be willing to be examined in Waterbury where she would be staying, and examining doctor was located in Hartford, an approximate 50-mile round trip); and in Everson v. Rite-Aid of Connecticut, Superior Court, judicial district of Windham at Putnam, Docket No. 01 0064871 (January 27, 2004, Swienton, J.) (where plaintiff resided in Connecticut and examining doctor was located in Washington, D.C., and would come to Connecticut for the examination and deposition).
The court concluded in Hansen v. Harris, whose facts are identical, except for the state where plaintiff resides, " [o]n these facts, it would be unreasonable and unfair to the [defendant] to require them to locate [a doctor] in [Florida] to perform [a] medical [examination], possibly [to] have to arrange for those examiners to be deposed either in [Florida] or Connecticut, as well as attend trial in Connecticut. The court recognizes the difficulties often involved in attempting to schedule local physicians for trial or deposition testimony; it would be a Herculean feat for the [defendant] to find [a Florida physician] willing to arrange [his or her] schedule to travel to Connecticut to testify at trial. While videotaping or otherwise recording the [doctor's] testimony for use at trial is an option, the defendant should not be forced to have to make that choice. To allow the plaintiff to blanketly object to the defendant's choice of [a] physician in Connecticut is therefore fundamentally unfair." Id. The court found the plaintiff's objection to the examinations taking place in Connecticut as unreasonable, and therefore did not order that the examinations take place near the plaintiff's residence. Although the court ordered the plaintiff to attend the examinations in Connecticut, with the defendants bearing the expense of her travel and lodging, the court did not compel the plaintiff to do so. However, the court noted that if the plaintiff did not submit to the examinations, the defendants were entitled to cross-examine the plaintiff on the issue, and to request to argue an adverse inference to the jury, and/or an order precluding the plaintiff from offering opinion evidence in the same areas that would have been the subject of the examination.
With the above legal principles in mind, and within the context of the particulars of this case, the court adopts the pragmatic approach and finds the plaintiff's objection to the defendant's IME taking place in Connecticut as unreasonable and will therefore not order that the examination take place in Florida. However, the defendant's motion to compel is DENIED. Thus, while this court will not issue an order compelling the plaintiff to attend an IME in Connecticut, the court will give the plaintiff an opportunity to avoid being sanctioned for opposing without good cause the defendant's request for a physical examination in Connecticut if she submits to the exam, with the defendant bearing the expense of her travel and lodging. If the plaintiff persists in her refusal to undergo that examination, the defendant, at that time may move for an order of sanctions against the plaintiff, which may include as appropriate, those remedies set forth in Practice Book § 13-14(b) and, if this matter proceeds to trial, the additional relief identified by the court in Privee, supra, which would include allowing the defendant to cross-examine the plaintiff on the issue, and to request an adverse interest and/or precluding the plaintiff from offering opinion evidence in the same areas that would have been the subject of the examination, as well as any other sanctions that the court may determine to be reasonable under the circumstances. The defendant's request for an order for the plaintiff to pay attorneys fees associated with this motion and any no show fees associated with the plaintiff's failure to attend the previously scheduled IME is DENIED. It is so ordered.