Opinion
CIVIL ACTION NO: 01-2005-CM.
January 7, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Larson Manufacturing Company, Inc.'s ("Larson") Motion to Compel Independent Medical Examination (doc. 61). Larson seeks to have Plaintiff undergo a second Rule 35 medical examination. Plaintiff underwent a Rule 35 medical examination by one of her treating physicians, a Dr. Michael E. Ryan. The examination took place in June 2001, prior to Larson being named a defendant in this action. Dr. Ryan was selected to conduct the examination by Defendant Home Depot U.S.A., Inc ("Home Depot").
I. The Parties' Arguments
Larson seeks to have Plaintiff examined by a neurologist, Dr. Irene Bettinger. Dr. Bettinger has never treated or previously examined Plaintiff. Larson contends it is entitled to have Plaintiff undergo this second examination for several reasons. First, Larson was not a party to the lawsuit at the time Plaintiff underwent the first examination. Larson states that it would have opposed the examination being conducted by Dr. Ryan on the basis that he was one of Plaintiff's treating physicians and not "independent." Second, Plaintiff has undergone surgery since Dr. Ryan's Rule 35 examination and continues to seek treatment for her condition. Third, Larson contends that there is a discrepancy between the information Plaintiff has provided her treating physicians (including Dr. Ryan) about her medical condition and Plaintiff's condition as evidenced in a surveillance videotape.
The examination by Dr. Ryan took place some time in June 2001. Plaintiff filed her motion for leave to amend to add Larson on June 1, 2001. The Court granted the motion on July 12, 2001, and Larson filed its answer on August 6, 2001.
Plaintiff opposes a second Rule 35 examination on the basis that Plaintiff has already been examined by at least fifteen physicians, in addition to Dr. Ryan. According to Plaintiff, all of those physicians agree that Plaintiff suffers from Reflex Sympathetic Dystrophy ("RSD"), a disabling and progressive disease, and that the disease has made Plaintiff unable to perform her job duties. Plaintiff argues that it would be inappropriate to make Plaintiff undergo additional, painful testing to confirm what so many other doctors have already established. Plaintiff also argues that Home Depot had legitimate reasons for selecting Dr. Ryan to perform the Rule 35 examination and that Home Depot was well aware that Dr. Ryan was one of her treating physicians when it selected Dr. Ryan. Plaintiff asserts that a second Rule 35 examination would give Defendants an unfair advantage, effectively giving them a "second bite at the apple" in hopes that Dr. Bettinger would disagree with Dr. Ryan and/or the other doctors who have treated her.
Dr. Ryan appears to be a neurologist, as is Dr. Bettinger. Larson does not make any arguments that Dr. Bettinger's examination would differ as to the nature or scope of the examination.
Additionally, Plaintiff asserts that the surveillance videotape is not inconsistent with Plaintiff's claim of disabling pain. Finally, Plaintiff argues that any change in Plaintiff's condition can be addressed by a second evaluation by Dr. Ryan, and that Plaintiff will not oppose such a re-evaluation.
II. The Law Regarding Rule 35 Examinations
In order to obtain the court's permission to conduct the mental examination of a plaintiff, a defendant must demonstrate that the plaintiff's medical condition is "in controversy" and that "good cause" exists to conduct the requested examination. Fed.R.Civ.P. 35(a) ; Schlagenhauf v. Holder, 379 U.S. 104, 118-19, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) ("Rule 35 . . . requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination . . . has adequately demonstrated the existence of the Rule's requirements of `in controversy' and `good cause'").
Fed.R.Civ.P. 35(a) provides, in relevant part, as follows:
When the mental or physical condition (including the blood group) of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner. . . . The order may be made only on motion for good cause shown and upon notice to the person to be examined . . . .
The parties do not dispute that Plaintiff has placed her medical condition "in controversy." They do, however, dispute whether Larson has established "good cause" for the second examination. The "good cause" requirement of Rule 35 is "not met by mere conclusory allegations of the pleadings — nor by mere relevance to the case — but requires an affirmative showing by the movant that . . . good cause exists" for ordering the examination. Id., 379 U.S. at 118. Although Rule 35(a) does not preclude multiple examinations, it does require the movant to show good cause for each requested examination. Doty v. Zimbelman, No. 96-2499-GTV, 1997 WL 728120, *1 (D.Kan. Nov. 20, 1997).
III. Application of the Law to This Case
The Court holds that Larson has shown good cause for the requested examination by Dr. Bettinger. Larson had absolutely no choice in the selection of Dr. Ryan, and the Court has no reason to question Larson's assertion that it would not have selected or agreed to the selection of Dr. Ryan had it been a party to the case at the time Home Depot selected Dr. Ryan. Under these circumstances, the Court believes that it would be unjust to bind Larson to Home Depot's selection of a treating physician to conduct the examination. In addition, the Court finds that the other reasons set forth by Larson establish good cause for the examination by Dr. Bettinger. The Court thus orders Plaintiff to submit to a Rule 35 physical examination by Dr. Bettinger.
The Court notes that Fed.R.Civ.P. 35(a) requires all orders to submit to a physical examination to "specify the time, place, manner, conditions, and scope of the examination." The parties have agreed that any additional Rule 35 examination shall take place within forty-five days of the Court ruling on the instant motion, and the Court has entered an order to that effect (doc. 63). The Court, however, has no guidance from the parties as to the location, manner, conditions, and scope of the examination. Without guidance from the parties as to these matters, the Court cannot fashion a precise order under Rule 35(a). The Court will leave these specifics to be worked out by the parties. See Doty, 1997 WL 728120, at* 1 (leaving the specifics as to manner, conditions and time of Rule 35 examination to be mutually determined by the parties).
IT IS THEREFORE ORDERED that Defendant Larson Manufacturing Company, Inc.'s Motion to Compel Independent Medical Examination (doc. 61) is granted. Plaintiff shall present herself for a Rule 35 medical examination by Dr. Irene Bettinger within forty-five days of the date of filing of this Order. The location, manner, conditions, and scope of the examination shall be by agreement of the parties. In the event the parties cannot agree, the Court may enter a further order upon proper motion.
IT IS SO ORDERED.