Opinion
CV136038088S
10-04-2016
Lynn Camp v. The Horace Bushnell Memorial Hall
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE OBJECTION TO MOTION FOR MENTAL OR PHYSICAL EXAM (#121)
Robin L. Wilson, J.
STATEMENT OF CASE
The plaintiff, Lynn Camp, commenced this premises liability action by way of service of writ, summons and complaint against the defendant, The Horace Bushnell Memorial Hall. The complaint alleges that the plaintiff fell down a set of stairs at premises owned, maintained and controlled by the defendant. The plaintiff alleges that her fall, and resulting injuries were the result of the defendant's negligence.
Pursuant to Practice Book § 13-11, the defendant has requested the plaintiff to submit to an independent medical examination to be performed by Stephen D. Sarfarty, Ph.D, a neuropsychologist. The plaintiff has objected to the motion on grounds that " Dr. Sarfarty is predisposed to the defense and will not conduct a fair and comprehensive cognitive evaluation. The plaintiff further believes that Dr. Sarfarty has already been retained and provided opinions favorable to the defense by way of review of the available medical record and plaintiff's neuropsychology report, thus, he does not approach the case from an independent point of view." Pl. Obj. to Mot.
DISCUSSION
Practice Book § 13-11(b) provides: " 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 reason 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 or mental examination by any physician to whom he or she objects in writing." General Statutes § 52-178a similarly 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." Plaintiff has stated in her objection that, she believes Dr. Sarfarty is predisposed to the defense and cannot conduct a fair and comprehensive cognitive examination. Plaintiff has also stated in her objection that she believes that Dr. Sarfarty has already been retained and provided opinions favorable to the defense. Plaintiff's counsel has provided the court with no evidence to support her claim of bias on the part of Dr. Sarfarty. In addition, plaintiff's claims are more appropriate for cross examination at trial.
" In a situation such as in the [present case], where there is a written objection to a physical examination, although the Practice Book rule states that the defendant has a right to request an examination and that the court may make such order as is just, and the statute states that the court 'may order the plaintiff to submit to a physical examination, ' Superior Court rulings have established that an objecting plaintiff has an absolute right under the final sentences of P.B. § 13-11(b) and Conn. Gen. Stat. § 52-178a to refuse to undergo a physical examination, and that a court cannot compel a plaintiff to submit to such an examination by a physician whom the plaintiff objects to in writing. Longobardi v. Plano, Superior Court, Judicial District of New Haven, Docket No. CV10-6007956S (January 30, 2012, Gold, J.) [53 Conn.L.Rptr. 391, ], 2012 Ct.Sup. 626, citing Wallace v. Commerce Properties, Inc., Superior Court, Judicial District of New Haven, Docket No. CV95-377552S (November 24, 1999, Alander, J.), 1999 Ct.Sup. 14943, 25 Conn.L.Rptr. 25, and Privee v. Burns, Superior Court, Judicial District of New Haven, 46 Conn.Supp. 301, 749 A.2d 68 (1999, Blue, J.), 1999 Ct.Sup. 7650, 25 Conn.L.Rptr. 27. [This] court will follow the precedent of those cases.
Both Wallace and Privee contain comprehensive reviews by Judges Alander and Blue, respectively, of the history and evolution of Connecticut law leading to the conclusion that the objecting defendant has an absolute right not to be compelled to undergo a physical examination.
" But that is not the full resolution of the issues presented. Longobardi, Wallace, and Privee, supra, all stand for the proposition that an objecting plaintiff's refusal to submit to a particular examination requested by a defendant may not be without its adverse consequences, and may result in the imposition of sanctions set forth in Practice Book § 13-14; see Wallace; or in rulings at trial that could work to the plaintiff's disadvantage and hinder the plaintiff's ability to successfully prosecute his or her case; see Privee . The approach to a practical application of these concepts can be no better stated than Judge Gold's excellent analysis in Longobardi : 'In sum, therefore, Wallace and Privee both unequivocally hold that a plaintiff's refusal to undergo an IME [independent medical examination] under the terms proposed by a defendant constitutes a decision that may trigger adverse consequences to the plaintiff. Only Wallace, however, seemingly allows the court to consider the merits of the plaintiff's objection, and on that basis to decide whether the plaintiff should be exposed to adverse consequences as a result of his or her unwillingness to undergo the particular examination sought by the defendant. Because Wallace affords the trial court this important discretion, and, unlike Privee, does not impose sanctions even on those plaintiffs whose objections to an IME are legally sound, this court concludes that the Wallace approach is more just, more persuasive, and more practical. Accordingly, this court will join others . . . [citations omitted] in following Wallace and in giving due consideration to the reasons stated by a plaintiff in support of his or her objection to a particular IME.'" Copes v. Whelan, Superior Court, judicial district of New Haven, Docket No. CV-13-6040098-S (July 14, 2015, Wilson, J.) [60 Conn.L.Rptr. 619, ] citing, Klein v. Norwalk Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FSTCV03-0197784S (Mar. 30, 2012, Jennings, J.) [53 Conn.L.Rptr. 730, ].
In the present case, this court, " on the authority of Wallace and Longobardi, will therefore consider the strength of the reasons for plaintiff's objection to a physical examination by [Dr. Sarfarty]." Id. As noted at the outset, plaintiff's counsel believes that Dr. Sarfarty will not conduct a fair and comprehensive cognitive evaluation of the plaintiff, and is therefore biased, yet counsel has failed to provide the court with any evidence to support his assertion. The defendant has requested the plaintiff to undergo an examination to be performed by Dr. Sarfarty. The plaintiff has failed to provide this court with sufficient reasons why she should not submit to such exam. Therefore, the plaintiff's objection to the defendant's request for an IME to be performed by Dr. Sarfarty is overruled. Notwithstanding the court's determination in this regard, the court, as noted earlier, concurs with the holding in Wallace and therefore will not issue an order compelling the plaintiff to undergo an examination by Dr. Sarfarty. However, while this court will not issue an order compelling the plaintiff to undergo an examination by Dr. Sarfarty, 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 if she submits to the exam. 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 as well as any other sanctions that the court may determine to be reasonable under the circumstances.
Practice Book § 13-14(b) lists the following possible sanctions: (1) entry of nonsuit or default, (2) award of costs and/or reasonable attorneys fees, (3) or order that matters regarding which discovery is sought shall be taken to be established, (4) an order prohibiting the party from introducing designated matters in evidence, and (5) entry of a judgment of dismissal.
As examples of these adverse trial rulings, Privee specifically provides that, where a plaintiff objects to an IME, the defendant at trial will be entitled to (1) cross examine the plaintiff about that objection, (2) argue to the jury that it should draw an adverse interest from the plaintiff's refusal to undergo the examination, and (3) seek, in some cases, more aggressive judicial measures, including the striking of any expert opinion sought to be offered by the plaintiff.