Opinion
No. 4001700
April 19, 2007
MEMORANDUM OF DECISION RE MOTIONS #127-#129
The present action arises out of an automobile collision on August 14, 2003, in which the plaintiff, Joanne L. Polcaro, allegedly sustained personal injuries. In a revised complaint filed on January 25, 2005, the plaintiff alleges that the defendant, Safeco Insurance Company of Illinois, is liable for the plaintiff's bodily injuries pursuant to the underinsured motorist provision of an insurance policy.
The plaintiff also asserted claims against Shewanda L. Daniels, the allegedly negligent driver of the automobile that collided with the plaintiff. These claims were withdrawn on February 28, 2005.
Presently before the court are separate motions filed by the plaintiff and the defendant seeking a variety of remedies based on a dispute associated with a physical examination of the plaintiff. The following facts are relevant to the issues involved. On August 7, 2006, the plaintiff filed a disclosure of expert witness pursuant to Practice Book § 13-4. The disclosure provided that Dr. Frank Maletz would testify regarding the injuries, diagnosis and impairment of the plaintiff as a result of the collision. Among other things, the disclosure specifically indicated that Maletz would testify that the plaintiff sustained a 22 percent impairment to the right upper extremity/right shoulder as a result of the collision. The defendant sought to have the plaintiff undergo a physical examination as provided for by Practice Book § 13-11 and General Statutes § 52-178a. The plaintiff filed an objection to the examination being performed by Dr. Andrew Hallberg, whom the defendant selected. This objection was sustained by the court, Hurley, J.T.R., on August 29, 2006.
Section 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."
Section 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."
On September 27, 2006, a trial management conference was held before this court, at which time the plaintiff's counsel and the defendant's counsel agreed upon a doctor to conduct the physical examination. The examination was scheduled to be performed by Dr. Michael Miranda, an orthopedic surgeon, on November 13, 2006. The plaintiff was accompanied to the examination by a representative from the law firm representing the plaintiff. The representative informed Miranda that he "was only permitted to ask [the plaintiff] how she was feeling on November 13, 2006." The representative specifically stated that Miranda would not be permitted to ask the plaintiff any questions about: (1) her medical history, including treatment prior to and/or subsequent to the collision; (2) the circumstances of the motor vehicle collision; or (3) any previous symptoms associated with the plaintiff's shoulder.
A paralegal attended the November 13, 2006 examination, but the plaintiff's counsel represented to the court that attorneys for the law firm sometimes attend examinations. Seeing no reason to distinguish between the staff members for purposes of this decision, the term "representative" is used to refer to attorneys, as well as other law firm staff.
In a sworn affidavit submitted to the court, Miranda stated that these conditions would not permit him to formulate a medical opinion. Specifically, he averred that "a proper examination could not be performed and a medical opinion formulated without obtaining an appropriate adequate medical history that includes the origins and longevity of patient symptomology, degenerative conditions and facts of the alleged causative event needed for a true evaluation." The physical examination was not conducted.
In response to this incident, the defendant filed a motion to preclude evidence of the plaintiff's impairment rating (#127). In the alternative, the defendant seeks a continuance of the matter in order for a physical examination to be performed without the restrictions imposed by the paralegal. Additionally, the defendant seeks an award of costs, as well as the imposition of sanctions against the plaintiff's counsel. In response, the plaintiff filed an objection (#128) to the motion to preclude, as well as a motion for an award of costs (#129) associated with the aborted examination. Oral argument was heard on these matters on January 17, 2007.
Although motion #129 came before this court as a nonarguable matter on the short calendar for January 29, 2007, the basis of the motion overlaps with the issues argued on January 17, 2007, and therefore is addressed in this decision.
The defendant argues that the limitations placed on the examination were inappropriately restrictive and prevented Miranda from formulating a reasoned medical opinion. The defendant further argues that the restrictions would lead to deficiencies in the medical examination that may be used to attack the conclusions of Miranda at trial. In response, the plaintiff notes that the defendant deposed the plaintiff and was provided with her medical records. The plaintiff further notes that other records, such as the police accident report, are within the defendant's possession. The plaintiff argues that Miranda should inspect these sources to answer any questions about medical history or the collision. The plaintiff contends that allowing Miranda to ask questions beyond how the plaintiff is feeling on the day of the examination is tantamount to a "second deposition."
DISCUSSION
It is well established that "the granting or denial of a discovery request rests in the sound discretion of the [trial] court . . ." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 950 A.2d 55 (2006).
There is no Connecticut appellate authority helpful with the issues involved in the present case. "[W]here a state rule is similar to a federal rule [the court will] review the federal case law to assist [its] interpretation of our rule." (Internal quotation marks omitted.) SFP Tisca v. Robin Hill Farm, Inc., 244 Conn. 721, 727-28, 711 A.2d 1175 (1998). The federal counterpart of Practice Book § 13-11 is rule 35 of the Federal Rules of Civil Procedure. Numerous states also have statutes and rules of practice addressing medical examinations performed at the request of an adverse party. While the language of Practice Book § 13-11 is not identical to the rules of other jurisdictions, the purpose is the same. Furthermore, other state and federal courts have been confronted with identical issues associated with third parties attending medical examinations. Therefore, this court looks to the relevant cases from other jurisdictions as persuasive authority.
As a preliminary matter, it is necessary to identify the limited issues presented by the present case. First, the court must decide the scope of the examination, particularly with regard to questions asked of the plaintiff. Second, the role of the representative during the examination must be established. In clarifying the issues, it is highlighted that the plaintiff does not object to Miranda conducting the examination. Therefore, the court is not confronted with the issues created when a party objects to a particular examiner. See generally Varnavelias v. Wood, Superior Court, judicial district of New Britain, Docket No. CV 03 0522135 (January 25, 2006, Robinson, J.) ( 40 Conn. L. Rptr. 599), and cases discussed therein. Moreover, the defendant has expressly consented to the presence of a representative during the examination. Therefore, the discussion of cases involving a request to bar attorney attendance entirely is only included insomuch as it informs the limited issues of the present case. This court shall not rule on the limited issue of whether an attorney or legal representative has the right to attend the medical examination.
I Attorney Attendance at Medical Exam
While a handful of states address attorney attendance within their practice rules or statutes, most jurisdictions' rules and statutes, like Connecticut's, are silent on the issue of attorney attendance. In the most general of terms, the courts fall into two categories in their approach to attorneys attending examinations. The first perspective is that there is a presumption in favor of attorney attendance. See Langfeldt-Haaland v. Saupe Enterprises, Inc., 768 P.2d 1144, CT Page 5553 84 A.L.R.4th 547 (Alaska 1989); Byrd v. Southern Prestressed Concrete, Inc., 928 So.2d 455 (Fla.Dist.Ct.App. 2006); B.D. v. Carley, 307 N.J.Super. 259, 704 A.2d 979 (N.J.Super.Ct.App.Div. 1998); Jakubowski v. Lengen, 450 N.Y.S.2d 612, 86 A.D.2d 398 (N.Y.App.Div. 1982); Tietjen v. Department of Labor and Industries, 13 Wn.App. 86, 534 P.2d 151 (1975). The strength of the presumptions, and the burdens to overcome the presumptions, vary in degree. Compare Jakubowski v. Lengen, supra, 450 N.Y.S.2d 614 ("compelling showing of need" required to conduct examination outside of attorney's presence), with Byrd v. Southern Prestressed Concrete, Inc., supra, 928 So.2d 457 (opposing party must establish "(1) "a case-specific reason why the attorney's presence would disrupt examination and (2) that no other qualified individual in the area would be willing to conduct the examination with the attorney present").
See ArizR.Civ.P. 35; Cal. Code Civ. Proc. § 2032.510(g)(1); 735 Ill. Comp. Stat. 5/2-1003(d); Mich. Ct. R. 2.311(A); Okla. Stat. tit. 12, § 3235(D); Pa.R.Civ.P.4010(a)(4)(i).
Conversely, the second category of cases adopt a presumption against attorney attendance. The vast majority of federal district courts fall into this category. See 7 James Win. Moore et al., Moore's Federal Practice § 35.08 (3d ed. 1999); see, e.g., Abduiwali v. Washington Metro Area Transit Authority, 193 F.R.D. 10 (D.D.C. 2000); Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620 (D.Kan. 1999); Wheat v. Biesecker, 125 F.R.D. 479 (N.D.Ind. 1989).
Additionally, the following state courts are among those that have adopted a presumption against attorney attendance: Metropolitan Property Casualty Ins. Co. v. Overstreet, 103 S.W.3d 31 (Ky. 2003); Jensen v. Wallace, 671 S.W.2d 331 (Mo.Ct.App. 1984); State ex rel. Hess v. Henry, 183 W.Va. 28, 393 S.E.2d 666 (1990); Whanger v. American Family Mutual Ins. Co., 58 Wis.2d 461, 207 N.W.2d 74 (Wis. 1973). The strength of the presumptions and associated burdens also vary in degree. Compare Metropolitan Property Casualty Ins. Co. v. Overstreet, supra, 103 S.W.3d 39 ("trial court may impose an external presence at [an] . . . examination only upon a showing of `good cause' by the examinee"), with Abdulwali v. Washington Metro Area Transit Authority, supra, 193 F.R.D. 15 (Dist. D.C. 2000) (denying request of presence of counsel where plaintiff failed to show a "compelling need").
The cases have, perhaps to an exhaustive degree, discussed the negatives and positives of attorney attendance. Arguments that have been put forth in favor of attorney attendance include an enhanced ability to cross examine the physician; see Department of Corrections v. Johnson, 2 P.3d 56, 61 (Alaska 2000); and that the attorney's presence may make the examinee feel more comfortable, thereby benefitting the examiner's efforts. See Whanger v. American Family Mutual Ins. Co., supra, 58 Wis.2d 471.
It is clear, however, that the overriding concern offered to justify the attorney's presence is that the examiner may conduct a "defacto deposition" by engaging in improper questioning on issues unrelated to a medical diagnosis. The fruits of the improper questions may then be used to contradict the plaintiff. In light of this potential, some courts reason that "[t]he presence of plaintiff's attorney at such an examination may well be as important as his presence at an oral deposition." Jakubowski v. Lengen, supra, 450 N.Y.S.2d 614. The foundation of this perspective is that the examinations are inherently adversarial events. Id.
On the other hand, courts that adopt a presumption against attorney attendance either (1) conclude that the examinations are not adversarial; see, e.g., Warrick v. Brode, 46 F.R.D. 427, 428 (D.Del. 1969) ("examining doctor is, in effect, an `officer of the court' performing a non-adversary duty"); or, (2) recognize that the examinations are adversarial, but nevertheless conclude that this alone does not outweigh the negative aspects of attorney attendance. See, e.g., Metropolitan Property Casualty Ins. Co. v. Overstreet, supra, 103 S.W.3d 38 ("We would close our eyes to reality . . . were we to pretend, simply because . . . examinations should be conducted with only the health of the examinee in mind, that they always are so conducted . . . Nevertheless, recognition of this potentiality does not mean that an external presence should automatically be permitted . . .") (Citations omitted; internal quotation marks omitted.)
Primary among the concerns about attorney attendance is the unnecessary interference that may result. "An attorney is most likely to be problematic because of the potential to unfairly disrupt the examination. As some commentators have noted, `even a few well-timed objections could seriously undermine the examination, and it is not difficult to imagine an overzealous attorney making more than a few objections." Metropolitan Property Casualty Ins. Co. v. Overstreet, supra, 103 S.W.3d 39. This interference may also be considered an encroachment into the physician's arena by a person lacking medical expertise. See Dziwanoski v. Ocean Carriers Corp., 26 F.R.D. 595, 598 (D.Md. 1960) ("If the attorney desires to be present in order to control the examination, that would invade the province of the physician . . .").
Also, ethical responsibilities often weigh against attorney attendance. Wheat v. Biesecker, 125 F.R.D. 479 (N.D.Ind. 1989). If a dispute arises regarding an occurrence during the examination, the attorney may find himself in the difficult position of being a potential witness at trial. Given this, courts are reluctant to permit attorney attendance.
In Connecticut, Rules of Professional Conduct § 3.7(a) provides that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness . . ." This clearly counsels against medical examination attendance by the attorney that will be trial counsel. However, subsection (b) of § 3.7 would permit nontrial counsel, or presumably another law firm representative, to attend the examination and subsequently testify at trial. It should be noted that the latter situation would only be allowed through compliance with Rules of Professional Conduct §§ 1.7 and 1.9.
Finally, in support of a presumption against attorney attendance, courts have frequently relied on the numerous alternative safeguards against impropriety on the part of examiners. The safeguards may act as less obstructive substitutes for attorney attendance, which would be put in place contemporaneously with the examination. Examples include audio or video recording, a stenographer, or the presence of the plaintiff's own physician. See Metropolitan Property Casualty Ins. Co. v. Overstreet, supra, 103 S.W.3d 39-40, and cases discussed therein. Although, it is noted that these alternatives involve their own potential for disruption and are not universally accepted as less problematic than attorney attendance. See generally W. Wyatt R. Bales, "The Presence of Third Parties at Rule 35 Examinations," 71 Temp. L. Rev. 103, 124-29 (1998).
There are also post-examination safeguards against impropriety. For example, a plaintiff will typically receive a copy of the examiner's report, as well as be able to depose the examiner. See Dziwanoski v. Ocean Carriers Corp., supra, 26 F.R.D. 598. At trial, the plaintiff will be able to cross-examine the physician and reveal any improper motives or bias. Id. The most significant post-examination safeguard is the court's ability to exclude improperly obtained information. "If it is determined that the doctor has questioned the plaintiff improperly, that evidence may be excluded at trial." Wheat v. Biesecker, supra, 125 F.R.D. 480. In light of possible interference and/or improper influence by the attorney, many courts have concluded that it is best to have examinations conducted outside of counsel's presence, leaving the alternative safeguards to protect against any abuse.
In Connecticut, Practice Book § 13-11(d) provides the plaintiff with an opportunity to obtain the written report of an examining physician.
II Scope of the Examination
It is clear that Miranda should not ask any questions beyond those necessary to reach an informed medical opinion. Nevertheless, for the reasons explained below, Miranda should be given discretion in how the examination is conducted, including what questions are necessary to reach an informed medical opinion.
First, under the facts of this case, the examination is decidedly less adversarial than it may otherwise have been. The plaintiff successfully objected to the first physician selected by the defendant to perform the examination. As noted above, the selection of Miranda was a result of compromise. Accordingly, the plaintiff presently offers no factual support for her argument that Miranda will turn the examination into a defacto deposition by asking improper questions. Without any such evidence, this court is reluctant to presume that Miranda will behave improperly, or let the adversarial contest between the parties cloud his judgment.
Second, it is generally recognized that physical examinations require the taking of a medical history and questions about the causative event. This is, in fact, the main reason for even considering the presence of attorneys during these examinations. "A physical examination, while primarily involving external manipulation of the body, often requires some inquiry by the physician into the examinee's medical history and the events giving rise to the injury." Annot., 84 A.L.R. 4th 558, 564. In conducting these portions of physical examinations, the courts defer to the expertise of the physician. See Lahar v. Oakland County, United States District Court, Docket No. 05-72920 (E.D.Mich. August 8, 2006) ("not contrary to law . . . to allow [doctor] to take whatever oral medical history she deems appropriate for an adequate exam"); see also Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 628 (D.Kan. 1999) (in context of mental examination, "some preference should be given to allowing the examiner to exercise discretion in the manner and means by which the examination is conducted . . .").
The court's discussion in Jakubowski v. Lengen, supra, 450 N.Y.S.2d 612, is particularly insightful regarding the level of discretion given to physicians conducting examinations at the request of an adverse party. New York is a jurisdiction that presumes attorneys should be able to attend the examinations, and objections are permissible to protect the client's interests. Yet, in discussing the scope of physical examinations, the court explained: "In order to perform his function the examining physician should be allowed to ask such questions as, in his opinion, are necessary to enable him as a physician to determine and report freely on the nature and extent of the injuries complained of. This may include inquiry into the peculiar manner in which the injuries were received . . ." (Citation omitted.) Id., 614.
In the present case, the plaintiff argues that Miranda should rely solely on the records provided to the defendant for facts he finds necessary to formulate an informed medical opinion. This argument is without merit for several reasons. Primary among these is that there is a distinct possibility that material information will not be contained in the records provided to the defendant. Events may have occurred subsequent to the time period covered in the records. For example, the plaintiff may fall on her shoulder the morning of the examination. This important and relevant information would not be included in any of the records. Yet, if Miranda is not permitted to ask questions, this information would remain unavailable.
It is noted that some courts have rejected this precise argument. See, e.g., Lahar v. Oakland County, supra, Docket No. 05-72920; Romano v. II Morrow, Inc., 173 F.R.D. 271, 273 (D.Or. 1997). In Candal v. Xerox Corp., Superior Court, judicial district of New London, Docket No. 531746 (December 31, 1996, Hurley, J.T.R.) [ 18 Conn. L. Rptr. 530], the court held that an examining physician was required to look to medical records to answer a specific question regarding when the medical problem began. The court relied on the legal significance of the question, noting that " [w]hile ordinarily such a question by an examining physician would be appropriate, the [c]ourt finds that in this case it was not because of the legal effects." (Emphasis added.) Id. Candal is distinguishable from the present case, which does not involve a limited objection to a specific question of particular legal significance.
Furthermore, many of the records on which the plaintiff urges reliance, while pertaining to the same subject matter that Miranda may inquire about, were not recorded from the vantage point of a physician making a medical diagnosis. For example, the plaintiff explicitly cites to the police accident report as the source of information about the causative event. Yet, the police officer likely was concerned with what traffic violations occurred or what emergency care needed to be rendered, as opposed to how the dynamics of the crash impacted the plaintiff's body. Miranda should not be limited to records that may relate to certain facts, but do not address the aspects of those facts relevant to a diagnosis.
There is a final reason why Miranda should not be limited to gleaning a medical history from the records provided to the defendant. A medical diagnosis is often based on subjective and objective information being processed in a flowchart-type manner. That is, a combination of facts will lead to certain lines of inquiry while cutting off others. For this reason, it is difficult to predict what questions will be necessary, particularly follow-up questions. See 7 James Wm. Moore et al., Moore's Federal Practice § 35.05(4) (3d ed. 1999).
This court finds the discussion in Romano v. II Morrow, Inc., 173 F.R.D. 271 (D.Or. 1997) to be persuasive. "To restrict a physician from questioning a patient during a physical examination unduly restricts the physician's ability to obtain the information necessary to reach medical conclusions. The questioning of the plaintiffs by defense counsel during the taking of their depositions, the historical medical records, and the answers of the plaintiffs to interrogatories are no substitute for the answers to questions that a physician must pose to a patient during a physical examination. All of the questions that a medical doctor needs to ask, in particular the follow-up questions, cannot be determined in advance of the medical examination." Id., 273; see also Lahar v. Oakland County, supra, Docket No. 05-72920; Hertenstein v. Kimberly Home Health Care, Inc., supra, 189 F.R.D. 626.
For these reasons, Miranda is given discretion in conducting the physical examination, including the authority to ask questions related to medical history, treatment, and the causative event. The plaintiff may, however, bring and consult any records she believes may assist her in answering the questions.
III Role of Representative During Examination
The parties in the present controversy have no objection to the representative's presence during the examination. For the following reasons, however, this court concludes the representative should not participate in, or interfere with, the examination by way of objection or otherwise. In this regard, the court is particularly influenced by the facts and circumstances surrounding this discovery dispute. This is not a situation where an objection was made to a specific question during the course of the examination that the plaintiff's representative considered improper and of particular legal significance. See footnote 9, supra. Rather, the plaintiff's counsel set restrictions that completely prohibited Miranda from asking any question beyond how the plaintiff felt on the day of the examination. The plaintiff has not presented the court with a reasonable factual premise for such restrictions. Nor has the plaintiff cited any legal authority for these restrictions. In fact, this court's research has not yielded a case that condoned, either explicitly or implicitly, counsel setting such restrictive limitations.
Even jurisdictions that favor attorney attendance during the examination recognize that trial courts must ameliorate burdensome interference by attorneys when it occurs. See Jakubowski v. Lengen, supra, 450 N.Y.S.2d 614 ("If the attorney's participation intrudes upon the examination, appropriate steps may be taken by the court to provide the doctor with a reasonable opportunity to complete his examination. Whether to invoke conditions must be considered in the light of the facts and circumstances of each case."); Byrd v. Southern Prestressed Concrete, Inc., supra, 928 So.2d 460 ("Should . . . interference occur, appropriate steps may be taken by the trial court to afford the doctor a reasonable opportunity to complete his examination."); Tietjen v. Department of Labor and Industries, supra, 13 Wn.App. 90 ("unnecessary interference caused by an attorney could be alleviated by specific court order").
Also, the plaintiff has not presented the court with any special circumstances that would warrant a representative's participation. The plaintiff's shoulder is being examined, as opposed to an invasive examination, or one that utilizes unorthodox, unacceptable, or painful procedures. See Duncan v. Upjohn Co., 155 F.R.D. 23 (D.Conn. 1994) ("Because [doctor] does not propose to use unorthodox or potentially harmful techniques in his examination . . . the court finds that there is no need for any of plaintiff's physicians or other mental health professionals to be present during the examination"). There is also no evidence that the plaintiff is mentally challenged, a child, or has difficulty communicating. See Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12 (E.D.N.Y. 1989) (in ordering stenographer be present during psychiatric examination, court considered that the plaintiff was "not well educated, and more importantly, has difficulty with the English language"). Nor is there any evidence of a pending criminal proceeding, which would implicate constitutional rights to not incriminate oneself. See Marsch v. Rensselaer County, 218 F.R.D. 367, 371 (N.D.N.Y. 2003) ("need to protect . . . Fifth Amendment rights . . . justifies the presence of an attorney during the examination").
Absent any special considerations, and in light of the extent of the interference at the November 13, 2006 examination, this court finds that the plaintiff's representative should not participate in the examination by way of objection or otherwise. This court is persuaded that any impropriety in this case can be addressed through the post-examination safeguards discussed above in section I.
ORDER
Based on the foregoing discussion, the court enters the following order. (1) The plaintiff is to attend a medical examination performed by Miranda at a reasonable time and place as agreed upon by the parties. (2) A representative from the law firm representing the plaintiff may accompany her during the examination. (3) The representative may assist the plaintiff with any preexamination activities, such as filling out paperwork. (4) The representative is not to participate in the physical examination in any way, whether it be by setting restrictions, instructing the plaintiff, objecting, or otherwise. (5) The plaintiff may bring and reference any records she believes will be of assistance. (6) Miranda is to conduct a physical examination and ask questions that, in his professional medical opinion, are necessary to determine the cause and extent of the plaintiff's physical injuries. (7) All other requests by the parties are denied.