Summary
ordering IME that will include all proper questions, including written or oral response to questions regarding occupational history, medical and family history, pain, prior surgeries, daily activities, prior accidents, falls, injuries or disease, necessary to render an opinion
Summary of this case from Crumedy v. XYZ Ins. Co.Opinion
21-602-SDD-RLB
07-06-2022
HOWARD CARNEY v. USAA GENERAL INDEMNITY COMPANY CIVIL ACTION
ORDER
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant's Unopposed Motion to Set Physical Examination of Plaintiff filed on July 1, 2022. (R. Doc. 24).
This is a personal injury action arising out of a motor vehicle accident that occurred on October 14, 2019. (R. Doc. 1). USAA General Indemnity Company (“Defendant”) seeks an order for the Rule 35 examination of Howard Carney (“Plaintiff”). Plaintiff agrees to submit to an orthopaedic examination with Dr. David G. Ferachi, an orthopaedic surgeon located in Baton Rouge, Louisiana, as detailed in Defendant's motion.
Federal Rule of Civil Procedure 35 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). A plaintiff places his or her physical or mental condition “in controversy” by pleading he or she has sustained a physical injury through the negligence of the defendant. See Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964). “The decision as to whether or not to order an independent medical examination under Rule 35(a) rests 1 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).
Having considered the foregoing motion, the Court finds good cause to order Plaintiff to submit to an orthopaedic examination by Dr. David G. Ferachi as detailed below, and as agreed upon by the parties.
IT IS ORDERED that Defendant's Unopposed Motion to Set Physical Examination of Plaintiff (R. Doc. 24) is GRANTED.
IT IS FURTHER ORDERED that the Rule 35 examination of Plaintiff shall proceed in accordance with the following:
(1) Plaintiff, Howard Carney, shall submit to an orthopaedic examination by Dr. David G. Ferachi, at Baton Rouge Orthopaedic Clinic, 8080 Bluebonnet Boulevard, 3rd Floor, Suite 3200, Baton Rouge, Louisiana 70810 on Tuesday, August 2, 2022, at 8:30 a.m., with an 8:00 a.m. arrival time. Such examination shall include any physical examination deemed necessary by Dr. Ferachi and consistent with the routine procedures of an orthopaedist to assess Plaintiff's medical condition and any alleged injuries related to the accident at issue and the nature and extent of past and future treatment, if any, is needed.
(2) At the time of said examination, Plaintiff shall answer all proper questions submitted to him, whether in writing or orally, including but not limited to, questions regarding occupational history, medical and family history, pain, prior surgeries, daily activities, any 2 prior accidents, falls, injuries or diseases, all for the purpose of making a proper diagnosis of Plaintiff's respective conditions.
(3) No individuals other than Plaintiff, Dr. Ferachi, and Dr. Ferachi's staff will be permitted to be present during the examination. No audio or video recording of the examination will be permitted.
(4) If any paperwork is required by Dr. Ferachi, it shall be completed by Plaintiff prior to the August 2, 2022, appointment and returned to Dr. Ferachi at the time of said appointment 3