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Maes v. Progressive Direct Insurance Co.

United States District Court, D. New Mexico

February 27, 2019

SARA MAES, Plaintiff,
v.
PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant.

          ORDER GRANTING IN PART DEFENDANT'S MOTION TO ALLOW RULE 35 EXAMINATION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant's Motion to Allow Rule 35 Examination (“Motion”), filed February 8, 2019. (Doc. 27.) The Court, having reviewed the Motion, counsel's arguments, and the relevant law, FINDS that the Motion is well-taken in part and should be GRANTED IN PART and DENIED IN PART as follows.

         Plaintiff Sara Maes alleges that, on or about July 21, 2012, she was a passenger in the bed of a pick-up truck that rolled off a washed-out dirt road. (Doc. 1-1 at 6-8.) According to Plaintiff, the accident caused her serious and permanent injuries. (Id. at 8, 11.) In this civil action, Plaintiff seeks damages from Defendant Progressive Direct Insurance Company, claiming that Defendant breached its duty of good faith and fair dealing and its fiduciary duty, and violated the New Mexico Unfair Insurance Practices Act and the New Mexico Unfair Practices Act, by failing to pay underinsured motorist insurance benefits due to her as a result of the accident. (Id. at 12-16.)

         In the present Motion, Defendant asks the Court to order Plaintiff to undergo an independent medical examination (“IME”) pursuant to Federal Rule of Civil Procedure 35, with no restrictions. (Doc. 27 at 7.) Under Rule 35, the Court may order “a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed.R.Civ.P. 35(a)(1). “The order . . . may be made only on motion for good cause and . . . must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed.R.Civ.P. 35(a)(2). The party requesting the examination must affirmatively demonstrate both that the physical or mental condition of the party to be examined is “in controversy” and that “good cause” exists for the examination. Schlagenhauf v. Holder, 379 U.S. 104, 117 (1964); O'Sullivan v. Rivera, 229 F.R.D. 184, 186 (D.N.M. 2004). “[T]here must be greater showing of need under [Rule 35] than under the other discovery rules”; to accept a showing of mere relevance would render the “good cause” requirement “meaningless.” Schlagenhauf, 379 U.S. at 117-18; O'Sullivan, 229 F.R.D. at 186. “While Rule 35 should be construed liberally in favor of granting discovery, its application is left to the sound discretion of the court.” Simpson v. Univ. of Colo., 220 F.R.D. 354, 362 (D. Colo. 2004) (citations omitted).

         Plaintiff first argues that the Court should deny Defendant's Motion because Defendant has failed to offer sufficient justification for the IME.[1] (Doc. 29 at 18-20.) To justify its request for an IME, Defendant relies on Plaintiff's answers to its interrogatories, in which Plaintiff identified the following injuries suffered as a result of the July 21, 2012 accident:

I received 3-4 fractures to my right upper thoracic ribs, a puncture to my lung, several abrasions and contusions to my face, torso, and limbs, and temporary swelling in my neck. Prior to this incident, I already had chronic upper and lower back and neck pain . . . [and] minor scoliosis in my lower back . . . . These preexisting pains were exacerbated by the additional injuries incurred during the rollover accident. . . . I now have chronic upper back and neck pain that is far worse than anything I had felt prior to this accident. . . . According to [Drs. Mario Pacheco and Miguel Pupiales], the pain I experience in my neck and back is permanent.

(Doc. 27-1 at 2-3.) According to Defendant, Dr. Pupiales based his opinions regarding Plaintiff's prognosis on his January 16, 2018 examination of Plaintiff. (Doc. 27 at 2.)

         In light of the foregoing, the Court finds that Plaintiff's physical condition is in controversy and that Defendant has shown good cause for the Court to order the requested IME. Plaintiff suggests that Defendant has shown only that Plaintiff's medical condition is relevant, and not that the information it seeks is unavailable by other means. (Doc. 29 at 20.) In fact, however, Defendant has shown that Plaintiff is seeking damages for serious and permanent physical injuries, as well as exacerbation of previous injuries or conditions, based in part on a medical examination that is now over a year old. This shows more than mere relevance and is sufficient to demonstrate that Defendant cannot obtain reasonably complete and current information about Plaintiff's injuries by means other than an IME. See O'Sullivan, 229 F.R.D. at 186 (court may consider movant's ability to obtain information about physical or mental condition of the person to be examined by other means in deciding whether to grant Rule 35 motion); Tomlin v. Holecek, 150 F.R.D. 628, 630 (D. Minn. 1993) (finding good cause for independent psychological examination of plaintiff “as a consequence of the [p]laintiff's assertion that he has sustained a severe and permanent psychological injury, and in view of his stated intent to prove that claim through . . . expert psychological testimony”). The Court will therefore grant Defendant's Motion and order Plaintiff to undergo the requested IME.

         Plaintiff next asks the Court to impose a number of conditions on the IME, specifically, that: (1) “the IME examiner be provided a copy of the Court's Order”; (2) “Plaintiff choose the starting time on the date already selected”; (3) “the examination be limited to two hours”; (4) “Defendant be ordered to reimburse Plaintiff for the cost of her travel”; (5) “any IME evaluator . . . be prohibited from conducting any tests, evaluations, or imaging of Plaintiff without the express written consent of Plaintiff's counsel”; (6) “any IME evaluator . . . be prohibit[ed] from . . . questioning [Plaintiff] concerning her emotional or psychological response or issues in any way connected to the accident or its aftermath”; (7) “Defendant must provide Plaintiff's counsel a copy of the evaluator's CV and his publications and testimony . . . upon entry of this Court's Order”; and, (8) “Plaintiff be reimbursed for her attorney's fees in defending this Motion.” (Doc. 29 at 26.)

         Defendant does not oppose the first condition requested, which will therefore be granted. (Doc. 31 at 6.) Defendant will be required to provide its chosen evaluator, Paul Legant, M.D., with a copy of this Order at least three (3) business days before the IME.

         As to the second condition Plaintiff has requested, Plaintiff argues that she should be allowed to choose the IME's start time because she “may wish to drive up early and get done and back to work.” (Doc. 29 at 16 (emphasis added).) However, Plaintiff never actually states when she wants the IME to start. (See generally id.) Defendant, in turn, indicates that Dr. Legant “will work with Plaintiff in terms of the timing of an IME, ” but “[i]t has to be reasonable.” (Doc. 31 at 7.) In light of the foregoing, it seems clear that counsel have not yet meaningfully conferred regarding this issue. The Court will therefore order Plaintiff's counsel to confer with her client, and defense counsel with Dr. Legant, about these individuals' preferred start times for the IME. Counsel must then confer with one another to select a mutually agreeable time. The Court will order the IME to begin at 9:00 a.m. if counsel do not agree to a different time.

         Regarding her third requested condition, Plaintiff objects to Defendant's position that the Court should impose no time limit on the IME. However, Plaintiff fails to explain why the two-hour time limit she proposes is appropriate. Cf. Greenhorn v. Marriott Intern., Inc., 216 F.R.D. 649, 653-54 (D. Kan. 2003) (denying plaintiff's request to limit independent psychological examination to two hours). In response, Defendant represents that “Plaintiff's IME may very well be done in two hours, ” that Defendant “does not anticipate a long IME, ” and that “an IME generally never goes past 3-4 hours.” (Doc. 31 at 7.) Defendant, however, does not explain why there should be no time limit at all, except to say that restricting the IME's length “violates Rule 35, ” which is simply incorrect. (Id.); see Fed. R. Civ. P. 35(a)(2)(B) (order for Rule 35 IME “must specify the time, place, manner, conditions, and scope of the examination”); Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 399 (S.D. Tex. 2013) (“Courts have permitted drastically varying durations for these examinations, extending from three hours to fourteen.”); Nicholas v. Wyndham Int'l, Inc., 218 F.R.D. 122, 124 (D.V.I. 2003) (recognizing “the magistrate judge's broad authority to structure the time and manner of medical examinations”).

         In light of Defendant's representations regarding the probable length of the IME, the Court will order the examination to last no more than four (4) hours, unless Plaintiff agrees to a longer time or the Court orders an extension for good cause shown. The Court will make itself available to counsel by telephone on the day of the IME to address any requests for an extension of time. Within these limitations, “[t]he Court trusts that . . . the examining specialist[] in this case will conduct [his] examination[] in the time reasonably needed to assess Plaintiff's physical condition in order to render an expert . . . opinion bearing in mind [his] professional and ethical duties.” Ornelas, 292 F.R.D. at 399 (internal citation and punctuation marks omitted).

         The Court will deny Plaintiff's fourth request, i.e., that Defendant be required to reimburse her for her travel costs associated with the IME. Plaintiff initiated this lawsuit and put her physical condition at issue. Plaintiff resides in Santa Fe and Dr. Legant's office is in Albuquerque. Plaintiff has failed to make any argument or present any evidence tending to show that traveling from Santa Fe to Albuquerque to attend the IME would impose an undue burden on her. In these circumstances, the Court finds it reasonable to require Plaintiff to bear her travel costs associated with the IME at this time. See Id. at 400 (finding it ...


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