Opinion
No. CV02-0174598S
July 1, 2004
OBJECTION TO REQUEST FOR INDEPENDENT MEDICAL EXAM (#117)
The complaint, in this civil matter, alleges extensive personal injuries arising out of a June 2001 rear-end motor vehicle accident in Southington. The plaintiff has filed an objection to the defendant's request that she submit to an independent medical exam with Dr. Glass in Stratford, CT. The plaintiff's objection is based "on the grounds that: "Dr. Glass . . . cannot offer an unbiased opinion" and "the physician . . . is not within the greater Waterbury area." The plaintiff provided a list of four Waterbury doctors she would be amenable to seeing. In its response to the objection, the defendant observes that the plaintiff "made 24 trips at 24.2 miles round trip each time to obtain chiropractic manipulations by Mark Stone, D.C."
DISCUSSION
Section 13-11(b) of the Practice Book expands somewhat on the language of § 52-178a of the General Statutes. If a plaintiff objects to a request for an examination, the court "may make such order as is just in connection with the request." If every objection were to be routinely granted with no adverse consequences, then there would be no purpose to the language of the Practice Book. Indeed, most 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 tram a failure to attend the examination if the objection is not reasonable. See, e.g., Rosenfield v. Milner's Cafe, 10 Conn. L. Rptr. 454, 1993 Conn.Super. 3148 (1993) (Corradino, J.); Moore v. Mintern, 23 Conn. L. Rptr. 109, 1998 Conn.Super. 2860 (1998) (Silbert, J.).
This court does not believe that the objection in issue is entirely reasonable, in the context of the case. One of the grounds stated, that the physician "routinely performs examinations on behalf of defendants" and is biased, is not a 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 patient. There is nothing alleged that is personal to the patient that causes alarm or concern. On the contrary, the sole 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. See, e.g., Moore v. Mintern, supra. As was succinctly observed by Judge Beach in Villoch v. Reznikoff, No. CV 00 0597560S (Apr. 12, 2002) ( 31 Conn. L. Rptr. 734), "Such 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. The objection may make sense from a litigation point of view, but it is not a personal reason why a patient should not go to a particular physician." The second "distance" ground for the objection is facially reasonable and, therefore, based on the particular facts of this case, the court determines that a 25-mile one-way trip would be not burdensome. Thus, the defendant may fairly select a doctor within 25 miles of the plaintiff's home.
The plaintiff has suggested a remedy: to allow the plaintiff to provide a list from which the defendant chooses a physician to perform an examination. That remedy, also suggested in other cases, is flawed because, as observed by my colleagues, the result is that the plaintiff indirectly chooses his opponent's "team."
CONCLUSION
The plaintiff's objection to the requested examination is sustained, with the understanding that the defendant has the option to submit within 30 days, the name of a doctor within a 25-mile one-way distance of the plaintiff's house. If the defendant so submits, plaintiff is not compelled by the court to submit to the examination. If she does not submit to the examination, the defendant is entitled to cross-examine the plaintiff on the issue, to request an adverse inference, and to an order precluding the plaintiff from offering opinion evidence in the same areas that would have been the subject of the examination.
ALVORD, J.