Opinion
1:02CV00757
December 9, 2003
ORDER
Defendant Greeness has filed a motion to conduct a physical and mental examination of plaintiff Gordon Shinn. (Docket No. 67) Defendant seeks an order from the Court compelling Mr. Shinn to appear and submit to physical and mental examinations conducted by Dr. Robert L. Rollins, a licensed neuropsychiatrist. The tests would include the standard psychiatric examination, a personal interview, and a magnetic resonance imaging (MRI) of plaintiff's brain, along with standard x-rays and auditory evaluation.
Plaintiffs' opposition is limited to defendant's choice of Dr. Rollins and to the taking of an MRI and x-rays. Plaintiffs point out that Dr. Rollins is a retained expert and has already provided an expert report which plaintiff Gordon Shinn believes is unfavorable to him. Plaintiffs agree that generally a party may select the physician to conduct a Rule 35 examination. Blount v. Wake Elec. Membership Corp., 162 F.R.D. 102, 107 (E.D.N.C. 1993). However, plaintiffs state that there is an exception if there is a showing of bias and prejudice on the part of the examiner. Id. Plaintiffs interpret bias or prejudice to encompass their fear that Dr. Rollins would likely render an opinion similar to the unfavorable one already given as defendant's expert witness. However, bias or prejudice usually relates to external factors which would make it difficult for an examiner to render an independent opinion, such as financial ties to a party. See Duncan v. Upjohn Co., 155 F.R.D. 23, 26 (D. Conn. 1994) (examples of bias). The mere fact that the examiner may have formed a preliminary opinion prior to the examination is not a ground for disqualification. Lahr v. Fulbright Jaworski, L.L.P., 164 F.R.D. 196, 202 (N.D. Tex. 1995); Anson v. Fickel, 110 F.R.D. 184, 186 (N.D. Ind. 1986); see also McKitis v. Defazio, 187 F.R.D. 225, 227 (D. Md. 1999) (no disqualification even though expert usually sided with defendants). Plaintiffs can only speculate that Dr. Rollins will form the same opinion after a thorough examination of Mr. Shinn. And, even if Dr. Rollins comes to the same conclusion after an examination, this does not show bias in the sense of having rendered an unsupported opinion. Normally, determining whether an opinion is unsupported can only occur after the examination when the examiner is subjected to cross-examination. Plaintiffs here attempt to issue a pre-emptive strike by eliminating the examination. However, they fail to show that Dr. Rollins' opinion will lack any support so as to be unfounded. And, even if plaintiffs did try to advance a belief that their examiner had the only reasonable opinion on the matter, the discovery stage of the proceedings is not the optimum or appropriate time to conduct the battle of the experts. McKitis at 227. For all these reasons, this part of the motion is not well-taken.
Next, plaintiffs argue that Gordon Shinn should not have to undergo an MRI to be used with contrasting x-rays. The ground for this argument is that such images have limited or no diagnostic value. However, the only proof offered in support is plaintiffs' recitation that Mr. Shinn's own physicians have not ordered these tests. This does not constitute adequate proof, but merely serves to support conjecture or speculation. In addition, defendant Greeness has offered proof from physicians that an MRI would have diagnostic value. For these reasons, plaintiffs' objection is, again, not well-taken.
IT IS THEREFORE ORDERED that defendant Christopher S. Greeness' motion for physical and mental examinations of plaintiff Gordon Shinn (docket no. 67) be, and the same hereby is, granted, and that plaintiff Gordon Shinn is directed to submit to examination by Dr. Robert L. Rollins of the sort which is set out in defendant's motion, which will include magnetic resonance imaging (MRI) and x-rays. Said examinations should take place within forty-five days unless the parties mutually agree to some other time.