Opinion
FSTCV186037289S
01-21-2020
Tuyen Nguyen aka Amy Nguyen v. Sherman Williams
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Krumeich, Edward T., J.
MEMORANDUM OF DECISION
KRUMEICH, J.
Plaintiffs have objected to the defendants’ request that the minor plaintiff submit to an independent medical examination ("IME") by Dr. Stephen Wolf, a pediatric neurologist, at his offices in Hartsdale, New York. For the reasons stated below, the objection is overruled.
Practice Book Section 13-11(b) provides for an IME as follows:
(b) 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 or mental examination by any physician to whom he or she objects in writing. (Emphasis added).C.G.S. § 52-178a provides: "[i]n 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." (Emphasis added).
Despite similar language in the Practice Book section and the statute, superior court judges have taken different approaches to application of the statute and rule and the consequences from a plaintiff’s written objection to a designated IME physician. In Privee v. Burns, 46 Conn.Supp. 301, 333-35 (1999), Judge Blue conducted an extensive analysis of the statute’s legislative history and concluded that plaintiff has an unconditional right to object to a particular IME physician under C.G.S. § 52-178a. Although P.B. § 13-11(b) requires plaintiff to state reasons for the objection, Judge Blue held courts may not evaluate the reasons for the objection and plaintiff "is entitled to object for any reason, including bias or personal dislike."
In Wallace v. Commerce Prop., Inc., 1999 WL 1207124 *8 (Conn.Super. 1999), Judge Alander also undertook an extensive analysis of the statute and caselaw and adopted a different approach he labeled "pragmatic." He dubbed Judge Blue’s decision as taking a "modified absolutist approach which opines that while a plaintiff has an absolute right to object to a particular physician the exercise of that right may be sanctioned in extreme cases ..." Under his "pragmatic approach" Judge Alander reads the statute "as authorizing a trial court to overrule a written objection to a particular physician and order the plaintiff to attend [an IME] but not allowing the court to physically compel that attendance." If the objection is overruled and plaintiff refuses to attend the IME, then sanctions may be imposed.
I agree with the pragmatic approach outlined in Wallace, which has been adopted by many other superior court judges, that recognizes a court may not compel an IME before a particular physician but allows the court to evaluate the reasons for plaintiff’s refusal to submit to an IME by the physician selected by defendant, rule on the objection and impose sanctions where appropriate. See e.g., Longobardi v. Plano, 2012 WL 593431 *27.3 (Conn.Super. 2012) (Gold, J.) (and cases cited therein); Larsen v. New, 47 Conn.Supp. 536, 538-39 (2002) (Frazzini, J.); Copes v. Whelan, 2015 WL 4880147 *2 (Conn.Super. 2015) (Wilson, J.). See generally, 1 Conn.Prac., Super.Ct. Civil Rules § 13-11 (2017 ed.).
I previously decided this issue in Castro v. Okapal, DBD CV 17-6022019 S (5/9/18).
The Court overrules plaintiff’s objection to the IME by Dr. Wolf. Plaintiff has offered no proof of Dr. Wolf’s bias or any valid reason not to submit to the IME as requested by defendant. Compare, Camp v. Bushnell Memorial Hall, 2016 WL 6496675 *2 (Conn.Super. 2016) (Wilson, J.); Copes, 2015 WL 4880147 *2.
Plaintiffs state, upon information and belief, that "Dr. Wolf routinely engages in expert review, predominantly in favor of the defense." No proof has been submitted to support this belief. Plaintiffs have not challenged the professional qualifications of the physician to perform the examination. The phrase "independent medical examination" does not appear in the rule and seems to be merely shorthand for an examination outside the course of treatment. The Court will not read into Section 13-11 an "independence" requirement not supported by the language of the rule that would encourage objections and attempts to disqualify physicians who routinely conduct IMEs after designation by the defense or who frequently testify for the defense. See Bonaldi v. Gilbert, 2004 WL 1664213 *1 (Conn.Super. 2004) (Alvord, J.). Simply speculating about bias by a physician, who is subject to professional standards and ethics, based on his or her past engagement by defendants or insurance companies does not disqualify the designated physician from conducting an IME of plaintiff and is not a valid ground for an objection. See Larsen, 47 Conn.Supp. at 538-39; Wallace, 1999 WL 1207124 *8. There is no requirement under C.G.S. § 52-178a or P.B. § 13-11, that the physician be "independent" of any party; indeed, the rule provides in subsection (b) that defendant is to designate the person to conduct the IME. See Wallace, 1999 WL 1207124 *7-8. Allowing plaintiffs to thwart defendants’ right to have the child submit to an IME by a physician designated by defendant would undermine the procedures designed to ensure that the fact-finder has access to expert testimony offered by both sides that may be required to reach a just result.
Here, the child is being treated by pediatric neurologists for the claimed injuries. Much of the medical evidence likely to be offered will relate to prenatal neurological injury and the child’s diagnosis and treatment. The IME by Dr. Palmese, a neuropsychologist, does not substitute for an IME by a pediatric neurologist like Dr. Wolf. Dr. Palmese and Dr. Wolf have different specialties and the IME by the neuropsychologist and an IME by the pediatric neurologist relate to different aspects of the injuries claimed by plaintiffs. There is not a duplication of examination as found in Lombardo v. Holdridge, 40 Conn.Supp. 265, 266 (1985). The Court declines to consider plaintiffs’ complaints concerning the IME by Dr. Palmese and production of the raw data underlying her report. Plaintiffs cannot use issues related to Dr. Palmese’s IME to avoid an IME by a qualified pediatric neurologist designated by defendants to assist the defense.
The Court is not presented with the reasonableness of plaintiffs’ decision not to allow Dr. Wolf to examine the child immediately following Dr. Palmese’s IME in Manhattan when the child was residing in Brooklyn. The issue here is the objection to the IME with Dr. Wolfe designated by defendant at his Hartsdale office.
Plaintiffs also object that Dr. Wolf’s office in Hartsdale is too far for the child to travel for an IME. The Court declines to impose a requirement, not based on the language of the rule, that the location of the IME be a set distance from plaintiffs’ residence such as within thirty miles of the plaintiff’s residence similar to the rule for place of deposition of state residents in Practice Book § 13-29. Such a limitation would unduly burden defendants’ choice of who to designate as the IME physician. Although there is some precedent for restricting the distance to be traveled for an IME, see Bonaldi, 2004 WL 1664213 *1 (IME restricted to 25 miles one way trip from plaintiff’s residence) and Hennessey v. Lawless, 2004 WL 870654 *2 (Conn.Super. 2004) (Bear, J.) (150 mile round trip for IME was "unsupportable"), under the circumstances here an IME at the designated physician’s office in Hartsdale, a one-way trip of 45 miles, is not unreasonable. Compare, Hansen v. Harrison, 2008 WL 4740036 *2 (Conn.Super. 2008) (Bellis, J.) (not unreasonable for out-of-state plaintiff’s IME to be in Connecticut). The Court notes that, according to defense counsel and uncontradicted by plaintiffs, the child regularly travels to Hartford for treatment by a pediatric neurologist, a distance comparable in distance to Hartsdale from Redding, and has also traveled to Waltham, Massachusetts to see a pediatric neurologist, which is considerably farther away.
The Court has overruled the objection to an IME by Dr. Wolf and orders plaintiff to undergo an IME by Dr. Wolf or another pediatric neurologist designated by defendants or risk sanctions, but cannot compel plaintiff to submit to an examination by Dr. Wolf. See Longobardi, 2012 WL 593431 *1. Neither will the Court direct defendant to designate another pediatric neurologist to conduct the IME. Counsel has explained defendants’ difficulties in locating a pediatric neurologist in Connecticut that is not affiliated in some fashion with the child’s treating neurologists and described its efforts to find a pediatric neurologist closer to Redding than Dr. Wolf. P.B. § 13-11(b) provides that defendant is to designate the IME physician. The Court rejects the argument that defendants need not designate a pediatric neurologist to conduct the IME of the three-year-old toddler. Defendant decides who to designate as an IME physician and is not obligated to designate a physician mutually agreeable to the parties. See e.g., Longobardi, 2012 WL 593431 *2. Similarly, the Court rejects the argument that a records review by Dr. Wolf is sufficient and he does not need to physically examine the child. That decision is to be made by Dr. Wolf in accordance with his professional judgment. If defendant agrees to designate an IME physician other than Dr. Wolf, defendant is free to do so. Of course, plaintiff has the right to object to an IME by a qualified physician, but they run the risk of the court granting a motion to impose discovery sanctions as provided by P.B. § 13-14(b), the severe sanctions of the sort outlined by Judge. Blue in Privee, 46 Conn.Supp. at 336-37, or such other sanctions the Court deems reasonable under the circumstances. See Copes, 2015 WL 4880147 *2; Camp, 2016 WL 6496675 *2; Larsen, 47 Conn.Supp. at 539.
The Court will allow plaintiff the opportunity to avoid sanctions by submitting to an IME before Dr. Wolf at a mutually convenient date and time or an IME by such other physician designated by defendant. Counsel are encouraged to confer and agree on the details concerning the IME, including the identification of the IME physician, but the Court will not compel plaintiff to submit to an IME before any physician to which written objection has been filed pursuant to C.G.S. § 52-178a and P.B. 13-11(b).
The Court will reserve on the subject of sanctions, which may be imposed at a later date, including at trial, depending on the conduct of the parties arid the circumstances then existing. Compare Sirot v. Amica Mut. Ins. Co., 2012 WL 5992497 *2 (Conn.Super. 2012) (Wilson, J.). However, if plaintiffs do not submit the child to examination by Dr. Wolf or another pediatric neurologist designated by defendants, they are subject to cross examination and argument to the jury on this refusal in light of the overruling of their objections to the IME by Dr. Wolf, an adverse inference from the refusal to submit the child for such examination and/or possible preclusion of neurological opinion evidence by plaintiffs’ experts. See Privee, 46 Conn.Supp. at 335. Sanctions may also include reimbursement of the costs and fees incurred in connection with Dr. Wolf’s preparation and records review in anticipation of the IME.