Opinion
No. CV 03-0823359 S
October 6, 2004
MEMORANDUM OF DECISION ON PLAINTIFFS' OBJECTION TO REQUEST FOR INDEPENDENT MEDICAL EXAMINATION (#126)
The plaintiffs' objection to the defendant North Central Counseling Service, Inc.'s (NCCS) request for independent medical examination appeared on the short calendar for October 4, 2004. For the reasons set forth below, the objection is overruled.
In their objection, the plaintiffs assert that the minor plaintiff should not be examined by Walter Borden, M.D., the physician designated by NCCS, because (1) he is not a psychiatrist with a specialty or particular expertise in child/adolescent psychiatry; and (2) his "practice has historically emphasized compensated expert testimony as opposed to clinical practice rendering him subject to certain biases." Both Practice Book § 13-11 and General Statute § 52-178a provide for a procedure by which a defendant, in an action to recover damages for personal injuries, may request that the plaintiff submit to an examination at the defendant's expense.
Practice Book § 13-11(b) provides, "[i]n 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, "[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."
Numerous superior court decisions have addressed the subject of a plaintiff's objections to such requests, with various interpretations. See Larsen v. New, 47 Conn.Sup. 536, 537, 812 A.2d 220 (2002) (citing recent decisions). It is "clear that neither a party nor the court has the power to compel a person to undergo any physical or mental examination, at least in the context of personal injury litigation, if the plaintiff objects in writing. Such compulsion is prohibited by the clear language of § 52-178a of the General Statutes and § 13-11 of the Practice Book." Villoch v. Reznikoff, Superior Court, judicial district of Hartford, Docket No. CV 00 0597560 S (Apri1 12, 2002, Beach, J.) ( 31 CLR 734). Here, NCCS has not claimed that the plaintiffs' objection is untimely. In the absence of such a claim, the court treats the issue of timeliness as having been waived. See Statewide Grievance Committee v. Presnick, 216 Conn. 135, 137 n. 3, 577 A.2d 1058 (1990); Fortune v. City of New London, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 970082795 S (December 14, 1999, Shapiro, J.) ( 27 Conn. L. Rptr. 637), n. 2.
The court's file reflects that the request (#125) was filed on September 1, 2004; the objection, dated September 8, 2004 (#126), was filed on September 13, 2004.
"[M]ost courts which have considered the issue have stated that the court is to consider the nature of the objection in the context of the case to determine whether the objection is reasonable and to determine what consequence, if any, should arise from a failure to attend the examination if the objection is not reasonable." Villoch v. Reznikoff, supra.
Here, in the complaint, it is alleged that, on October 16, 2002, defendant Fulton was a resident in a supervised apartment and/or transitional living program sponsored and/or managed by NCCS, when he brought the minor plaintiff to the apartment which he occupied, at which time he had sexual intercourse with her and provided her with illicit substances, including marijuana. See Complaint, third count, ¶¶ 1-4. The plaintiffs claim that NCCS was negligent and careless and breached its duty to supervise and manage its transitional living apartments in one or more of several ways. They assert that, as a result, "the minor plaintiff has been caused to suffer emotional distress, anxiety, depression, loss of enjoyment of life's activities, and impaired social functioning, all of which have caused and will continue to cause her both physical and emotional pain and suffering." See Complaint, third count, ¶ 7.
In its amended answer and special defenses (#116), NCCS denies the plaintiffs' allegations of negligence and carelessness on its part. In addition, NCCS pleads special defenses, in which it alleges that the minor plaintiff was a willing participant in the events which allegedly led to her injuries and that her injuries were caused, in whole or in part, by her own negligence and carelessness, in one or more of several ways. The court's file also includes plaintiffs' disclosure of expert witness (#121), concerning Peter J. Smith, M.D., who is expected to testify to the minor plaintiff's history, diagnosis, and treatment rendered.
Having considered the plaintiffs' objections, the court does not find them to be reasonable. As noted, they claim that Dr. Borden's professional experience consists largely of paid expert consultation and testimony, as opposed to clinical experience. They conclusorily allege that "his opinions will be heavily influenced, if not predetermined, in advance of the evaluation." See plaintiffs' memorandum in opposition to request for independent medical examination, p. 3. This ground, that the proposed examiner is biased, "is not sufficient ground for objection. There is no claim that the physician is in any way incompetent or unethical, or that there is any adverse history between the physician and the [minor plaintiff]. There is nothing personal to the [minor plaintiff] that causes alarm or concern. On the contrary, the . . . reason, it would appear, is grounded in litigation strategy. Even if it is true that the physician performs many such examinations, this is not a disqualifying factor." Villoch v. Reznikoff, supra. Rather, this factor "is fair game for cross-examination, and our adversarial system can resolve opposing points of view. A plaintiff, after all, is free to consult with any physician of any philosophical bent." Id.
In addition, the plaintiffs assert that Dr. Borden does not specialize in the evaluation and treatment of children and/or adolescents and that a "practitioner with such specialization more appropriately should evaluate" the minor plaintiff. See plaintiffs' memorandum in opposition to request for independent medical examination, p. 3. Again, this factor is not a reasonable ground for objection; while it may bear on the weight to be accorded to Dr. Borden's trial testimony, it also can be explored on cross-examination.
The plaintiffs have provided a list of practitioners as to whom they would not object and they cite Moore v. Minton, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 94 0364211 S (October 8, 1998, Silbert, J.) ( 23 CLR 109), as endorsing the approach of having the defendant select an examiner from a list presented by the plaintiff. This court finds that remedy unwarranted, "because the result is that the plaintiff indirectly chooses his opponent's `team.'" Villoch v. Reznikoff, supra.
The court is persuaded by the reasoning and results set forth in Villoch v. Reznikoff, supra, where it was ordered that if the plaintiff did not attend the examination, the defendant was entitled to cross-examine on the issue, to request an adverse inference, and to request an order precluding the plaintiff from offering opinion evidence in the same areas that would have been the subject of the examination. CT Page 15105
CONCLUSION
For the foregoing reasons, the plaintiffs' objection to the requested examination is overruled, with the understanding that the minor plaintiff is not compelled by the court to submit to the examination. If she does not attend the examination, NCCS is entitled to cross-examine on the issue, to request an adverse inference, and to request an order precluding the plaintiffs from offering opinion evidence in the same areas that would have been the subject of the examination. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT