Opinion
CV106008639.
11-08-2012
Carol SIROT v. AMICA MUTUAL INSURANCE COMPANY, et al.
UNPUBLISHED OPINION
WILSON, J.
By way of a pleading dated October 31, 2011, the defendant, Amica Mutual Insurance Company, pursuant to Practice Book § 13-11 filed a Request for Physical or Mental Exam (# 120). On November 8, 2011, the plaintiff, Carol Sirot, objected to the defendant's request for an independent medical examination to be performed by Kenaga N. Sena, M.D. of Neurological Specialists, P.C., located in Stratford, Connecticut (# 123). The plaintiff gave no substantive reason for her objection but simply asserted that she " vehemently objects to submitting to an independent medical examination to be performed by Dr. Kenaga N. Sena whom the defendant has requested to perform the examination." On November 28, 2011 this court overruled the plaintiff's objection (# 123.10). On October 23, 2012, the defendant filed a Motion to Compel Plaintiff's Independent Medical Examination (# 137). This matter was initially assigned to Lager, J. as take papers, but because this court had previously ruled on the issue, the motion was assigned to this court.
Section 13-11 of the Practice Book concerns physical examinations. Subsection 13-11(b) of the Practice Book provides as follows: " 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."
The resolution of the present matter requires this court to " chime" in on an issue that many other Superior Court judges previously have considered: that is, the proper manner to reconcile the contradictory sentences contained within both General Statutes § 52-178a and Practice Book § 13-11(b) that appear to authorize the court to order a physical examination that a plaintiff is thereafter authorized to refuse. Lacking any binding appellate authority on this question, the trial courts have taken a number of separate approaches in interpreting these provisions.
As Judge Gold states in his excellent analysis of this issue in Longobardi v. Plano, Superior Court, judicial district of New Haven, Docket No. CV-10-6007956 (January 30, 2012) [ 53 Conn. L. Rptr. 391]: " In the opinion of this court two of these trial court decisions, Wallace v. Commerce Properties, Inc., Superior Court, judicial district of New Haven, Docket No. CV95-377552 (November 24, 1999, Alander, J.) [ 26 Conn. L. Rptr. 25], and Privee v. Burns, Superior Court, judicial district of New Haven, Docket No. CV95-395074 (June 1, 1999, Blue, J.) [ 25 Conn. L. Rptr. 27] (46 Conn. .Sup. 301), standout for the depth of their analyses and their careful consideration of the competing rights and interests implicated within the context of IMEs. Each of these cases concludes that a plaintiff has an absolute right to refuse to undergo an IME and that a court cannot compel a plaintiff to submit to such an examination by a physician whom the plaintiff objects to in writing. These cases also conclude, however, that a plaintiff's refusal to submit to a particular IME requested by a defendant may not be without its adverse consequences, and may result in the imposition of sanctions as set forth in Practice Book § 13-14, Wallace v. Commerce Properties, Inc., supra, or in rulings at trial that could work to the plaintiff's disadvantage and hinder the plaintiff's ability to successfully prosecute his or her case, Privee v. Burns, supra. Where the courts in Wallace and Privee part company, however, is on the issue of whether, in considering an objection to an IME, the trial court should assess the reasons for the plaintiff's objection. Privee concludes that, because the plaintiff's right to object is absolute, the reasons for the objection are of no moment. Thus, regardless of the reasons stated or their legal merit, the plaintiff's objection will be sustained— albeit always at the cost of the likelihood of adverse rulings at trial [as set forth in Privee, supra ]. Wallace, however, takes a somewhat different view and advocates that the plaintiff's reasons for the objection should, and do, matter. Under Wallace ... if the plaintiff sets forth a compelling reason as to why the particular IME requested by the defendant should not be ordered, then the court should sustain the plaintiff's objection to it and not expose the plaintiff to any sanction based upon this refusal. On the other hand, if the reasons proffered by the plaintiff are not satisfactory to the court, then Wallace holds that the court should overrule the plaintiff's objection to the IME, thereby alerting the plaintiff that his or her refusal to submit to the examination may result in the imposition of sanctions prior to or during the trial.
" In sum, therefore, Wallace and Privee both unequivocally hold that a plaintiff's refusal to undergo an IME under the terms proposed by a defendant constitutes a decision that may trigger adverse consequences to the plaintiff. Only Wallace, however, seemingly allows the court to consider the merits of the plaintiff's objection, and on that basis to decide whether the plaintiff should be exposed to adverse consequences as a result of his or her unwillingness to undergo the particular examination sought by the defendant. Because Wallace affords the trial court this important discretion and, unlike Privee, does not impose sanctions even on those plaintiffs whose objections to an IME are legally sound, this court concludes that the Wallace approach is more just, more persuasive and more practical. Accordingly, this court will join others, including [ Klein v. Norwalk Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. FSTCV030197784, (March 30, 2012, A.Jennings, J.) ] [ 53 Conn. L. Rptr. 730]; Varnavelias v. Wood, Superior Court, judicial district of New Britain, Docket No. CV030522135 (January 25, 2006, R. Robinson, J.) [ 40 Conn. L. Rptr. 599]; Everson v. Rite-Aid of Connecticut, Superior Court, judicial district of Windham, Docket No. CV01 0064871 (January 29, 2004, Swienton, J.) [ 36 Conn. L. Rptr. 452]; Larsen v. New, Superior Court, judicial district of Litchfield, Docket No. CV02 086711 (November 13, 2002, Frazzini, J.) [ 33 Conn. L. Rptr. 433]; and Villoch v. Reznikoff, Superior Court, judicial district of Hartford, Docket No. CV00 0597560 (April 12, 2002, Beach, J.) [ 31 Conn. L. Rptr. 734]; in following Wallace and in giving due consideration to the reasons stated by a plaintiff in support of his or her objection to a particular IME." Longobardi v. Plano, supra .
Applying Wallace to the present matter, the court notes that the plaintiff in her objection to the defendant's request for an IME, failed to provide any reason for her unwillingness to undergo an IME with Dr. Sena. Instead, in her objection, the plaintiff states only that she " vehemently objects to submitting to an independent medical examination to be performed by Dr. Kenaga N. Sena." The court having considered the plaintiff's objection and having reviewed the case law governing the application of § 13-11(b), the defendant's Motion to Compel is DENIED. However, while this court will not issue an order compelling the plaintiff to undergo an examination by Dr. Sena, the court will give the plaintiff an opportunity to avoid being sanctioned for opposing without good cause the defendant's request for a physical examination if she submits to the exam. If the plaintiff persists in her refusal to undergo that examination, the defendant, at that time may move for an order of sanctions against the plaintiff, which may include as appropriate, those remedies set forth in Practice Book § 13-14(b) and, if this matter proceeds to trial, the additional relief identified by the court in Privee as well as any other sanctions that the court may determine to be reasonable under the circumstances.