South Florida Federal Magistrate Judge Precludes Attendance of Plaintiff’s Counsel and Videographer at Medical Examination

photo_16480_20100206At issue in almost all personal injury litigation is the extent of a plaintiff’s physical injuries. Indeed, long before a possible trial, both plaintiffs and defendants enlist physicians to perform medical examinations and make professional determinations regarding the nature and extent of the alleged injuries. Given the obvious privacy interests associated with physical examinations and the defendant’s need to acquire evidence to rebut a plaintiff’s claims, problems related to medical examinations are not uncommon. Some of these possible issues are on full display in Kropf v. Celebrity Cruise, Inc., a recent decision from the U.S. District Court for the Southern District of Florida.

Kropf arose from a slip-and-fall accident on a cruise ship owned and operated by Celebrity Cruises, Inc., the defendant in this case. The plaintiff was injured as a result of the fall and underwent revision surgery of a prior hip replacement. The surgery led to further permanent, debilitating, and significant injuries. In her complaint, the plaintiff alleged the defendant’s “negligence in allowing [the tile] to remain in a wet and slippery condition” caused the fall and, consequently, the resulting injuries. Following the initiation of the action, counsel for Celebrity Cruises emailed the plaintiff’s counsel a Notice of Compulsory Medical Evaluation, which stated the plaintiff needed to undergo a medical examination by the defendant’s medical expert and that the examination was being conducted for the purposes of determining the nature and extent of the plaintiff’s alleged injuries and any disabilities resulting from them. This notice was sent on October 14, 2014, but the plaintiff’s counsel did not respond until November 14, 2014, only about two weeks before the scheduled examination of December 1, 2014. The response stated that the plaintiff’s counsel intended to send a videographer to the medical examination. In response, the defendant brought a motion, asking the court to preclude both the plaintiff’s counsel and the plaintiff’s videographer from attending the medical examination.

In its decision, the court sided with the defendant’s position. Rule 35 of the Federal Rules of Civil Procedure governs medical examinations of this nature in federal court. The plaintiff first argued that it had not, contrary to the defendant’s assertion otherwise, stipulated to the medical examination and, moreover, that the defendant had not made a formal motion for a court-ordered medical examination pursuant to Rule 35. However, the court noted that discovery rules, including Rule 35, are liberally construed, see Evans v. Noble Drilling Corp., No. G-06-599, 2007 WL 2818001, at *2 (S.D. Tex. Sept. 25, 2007), and accordingly the notice of medical examination should be considered a motion to compel under the circumstances. Next, the court noted that the plaintiff had not objected to the notice of medical examination, but rather implicitly implied that the plaintiff would appear at the scheduled time and place in her response to the defendant’s notice. Accordingly, the court determined that the plaintiff had indeed stipulated to the medical examination.

The plaintiff further argued that the defendant had not shown good cause sufficient for the court to compel a medical examination. In pertinent part, Rule 35 states that 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” upon a showing of good cause. Fed. R. Civ. P. 35(a)(1)-(2). With respect to this requisite level of good cause, the Supreme Court of the United States has held that a “plaintiff in a negligence action who asserts mental or physical injury . . . places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964). Accordingly, since the plaintiff brought her physical injury into controversy, it follows that there is good cause for a medical examination. While the plaintiff argued that an independent medical examination was unnecessary because the defendant would have access to the plaintiff’s medical records and could use other discovery tools to acquire the information desired, the court found this argument unavailing because compulsory medical examinations “are often necessary, even when the plaintiff’s medical records are available, because there are few […] acceptable substitutes for a personal physical examination.” Funez v. Wal-Mart Stores E., LP, No. 1:12-CV-0259-WSD, 2013 WL 123566, at *7 (N.D. Ga. Jan. 9, 2013) (internal quotation marks omitted).

Finally, the court turned to whether a videographer or any other third party, including the plaintiff’s attorney, could attend the medical examination. Rule 35 does not provide any guidance with respect to who may attend a court-ordered medical examination, so it is left to the court’s discretion. When determining whether to exercise this discretion and permit a third party to attend a medical examination or have a medical examination recorded, courts have generally placed the burden on the party seeking to have a third party present to show that there is good cause for the request pursuant to Rule 26 of the Federal Rules of Civil Procedure. Lerer v. Ferno-Washington, Inc. (PDF-embedded link), No. 06-81031, 2007 WL 3513189, at *1 (S.D. Fla. Nov. 14, 2007). Although the plaintiff cited bias on the part of the defendant’s medical expert as a reason why the examination should be recorded, the court found this concern insufficient because the plaintiff had not proffered any particularized evidence as to why the medical expert would not make a fair assessment. Rule 35 was intended to put “both the plaintiff and defendant on an equal footing with regard to evaluating the plaintiff’s [medical] status” and since a defendant in a personal injury action may not attend or record the medical examination conducted by the physician of the plaintiff’s choosing, it follow that liberally permitting third parties would “subvert the purpose of Rule 35,” absent “special conditions […] which call for a protective order tailored to the specific problems presented.” Id. Since the plaintiff cited only the risk of bias, the court held that there was no showing of good cause and ordered that no third parties attend the exam and that the exam not be recorded by anyone, including the plaintiff.

One interesting point to note is that Florida state courts have on certain occasions permitted the presence of an attorney and videographer at a court-ordered medical examination. See, e.g., Prince v. Mallari, 36 So.3d 128 (Fla. 5th DCA 2010); U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000). Indeed, state court and federal court rules involving discovery do have important distinctions that can have an impact on the underlying litigation. When considering whether to bring a legal action, one should be aware not only of the rules that will apply in a particular forum but also of which venue, state or federal, may ultimately be more hospitable to the interest of the client. The South Florida premises liability attorneys at Frankl & Kominsky are experienced in representation before both state and federal courts and are ready to provide guidance if you’ve been injured in a case of possible negligence. Feel free to contact us if you are interested in a free case evaluation.

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