Opinion
No. CV01 0076343S
March 31, 2004
MEMORANDUM OF DECISION
On January 6, 2004, this personal injury action was dismissed at the call of a jury calendar and was placed on the settled but not withdrawn calendar. Although the case had been dismissed, on January 12, 2004, the defendant, American Home Assurance Company, filed a "request for independent medical examination" to be performed by S. Pearce Browning, III, M.D. (Browning) at 5 Case Street in Norwich, Connecticut. On February 25, 2004, the defendant moved to "reopen judgment." On March 8, 2004, the court overruled the plaintiff's objection and granted the defendant's motion to reopen the judgment.
On March 15, 2004, the plaintiff, Alton Hennessey, objected to the defendant's "request for independent medical examination" and alleged, in part, that it is "unnecessary to force the Plaintiff who resides in Beacon Falls, Connecticut, to be examined by a Norwich physician. There are more than enough qualified physicians in the Waterbury area." Browning's office is located approximately seventy-five miles from the plaintiff's home.
General Statutes § 52-178a and Practice Book § 13-11(b) apply to objections to physical examinations in personal injury actions. There seem to be at least three Superior Court approaches to such objections. See Wallace v. Commerce Prop., Inc., Superior Court, judicial district of New Haven, Docket No. CV 95 377552 (November 24, 1999, Alander, J.) ( 26 Conn.L.Rptr. 25). "The judges of the Superior Court appear to be of three minds on this issue and their opinions fall into the following categories: (1) the pragmatic approach which limits the plaintiff's right to object to grounds that are reasonable; . . . (2) the absolutist approach which holds that a plaintiff has an absolute and unconditional right to object to a particular physician; See Mulligan v. Goodrich, [ 28 Conn. Sup. 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, [Superior Court, judicial district of New Haven, Docket No. 395074 (June 1, 1999, Blue, J.) (25 Conn.L.Rptr. 27)]." (Citations omitted; footnote omitted.) Id.
General Statutes § 52-178a 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."
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 in accordance with Sections 10-12 through 10-17 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."
Because the case had been dismissed prior to the filing of such defendant's request, and because the judgment of dismissal was not "reopened" until March 8, 2004, the court determines that such request should be deemed to have been filed on March 8, 2004. The plaintiff's March 15, 2004 objection was thus filed seven days after such request, and is thus within the ten-day period mandated by Practice Book Section 13-11(b).
Judge Alander in Wallace v. Commerce Prop., Inc., supra, Superior Court, Docket No. CV 95 377552, further explained in footnote 2: "The three categories of Superior Court decisions set forth here differ from the three categories identified in Privee v. Burns, [Superior Court, judicial district of New Haven, Docket No. 395074 (June 1, 1999, Blue, J.) ( 25 Conn.L.Rptr. 27)]. Judge Blue and I share the same first category, the pragmatic approach, and my second category, the absolutist approach, is similar to Judge Blue's third category entitled `opinions adhering to the Mulligan analysis.' We diverge in our final category — Judge Blue sees the opinions of Judge (now Chief Justice) McDonald as meriting a separate classification, while I find those opinions, although rooted in constitutional considerations, as placing pragmatic limits on a plaintiff's right to object and more appropriately in the first category. My third category is the position taken by Judge Blue in Privee v. Burns, which I call the' modified absolutist approach.'" Id.
In the circumstances of this case application of the standards set forth in each of the approaches requires that the plaintiff's objection be sustained. Absent any information concerning either unique or special circumstances or qualities of the plaintiff's alleged injuries or of Dr. Browning's diagnostic or other relevant skills, the defendant's request that the plaintiff travel approximately one hundred fifty miles to and from his home for a physical examination is unsupportable and the plaintiff's objection is thus sustained.
The Court
By Stuart David Bear, J.