Opinion
No. CV 07-500 91 04 S
October 8, 2008
MEMORANDUM OF DECISION
The case presently before the court arises out of an October 28, 2005 motor vehicle accident. The amended revised complaint, filed on June 20, 2008, alleges that the plaintiff, Sarah Hansen, a passenger in a vehicle operated by non-party Victoria Aarts, sustained injury and damage when that vehicle was struck by a school bus owned by the defendant Dattco, Inc., and operated by the defendant Rena Harrison.
On August 11, 2008, the defendants filed two Requests for Independent Medical Examination, requesting that the plaintiff submit to an "independent medical examination" of the cervical and thoracic spine to be conducted by Dr. Stuart Belkin at his offices in Trumbull, Connecticut on September 17, 2008 at 4:00 p.m., to be followed by an "independent medical examination" of the right foot and ankle by Dr. Michael R. Redler, at the same location. On August 21, 2008, the plaintiff timely filed an objection. The defendants filed a reply memorandum dated August 28, 2008, and the plaintiff filed a sur-reply on August 29, 2008.
Neither the practice book rule nor the statute, both of which are set forth in this opinion, use the term "independent medical examination" or its acronym, "IME;" both terms, however are well understood in personal injury law to be the defense physical or mental examination provided for by practice book and statute.
Conn. Gen. Stat. § 52-178a, which governs the physical examination of plaintiffs in personal injury cases, provides as follows:
In any action to recover damages for personal injuries, the court or judge may order the plaintiff to submit to a physical examination by one or more physicians or surgeons.
No party may be compelled to undergo a physical examination by any physician to whom he objects in writing submitted to the court or judge.
Similarly, Practice Book § 13-11(b) provides in relevant part as follows:
CT Page 16201
In the case of an action to recover damages for personal injuries, any party adverse to the plaintiff may file and serve . . . 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.
Both the statute and the Practice Book provision make clear that the court can not compel the plaintiff to submit to a medical examination by any physician to whom the plaintiff has objected in writing. However, the Practice Book mandates that an objection to a request for a medical examination be docketed on the short calendar, and contemplates court involvement by explicitly stating that "[t]he judicial authority may make such order as is just in connection with the request." The court will therefore evaluate the reasonableness of the objection in the context of the particulars of the case.
Here, the plaintiff filed three sets of expert disclosures with the court, identifying approximately sixteen medical providers, including eleven Connecticut medical providers and five Nebraska providers. A review of the court file indicates that the plaintiff, who had been engaged in competitive collegiate gymnastics, claimed permanent injuries as a result of the accident, including a 14% permanency to the cervical spine, a 25% permanency to the thoracic spine, and a stress fracture of the right foot requiring open reduction/internal fixation surgery.
Typically, a plaintiff's objection to a request for a medical examination is to the qualifications of the particular examiner. E.g. Rampulla v. Fulton, Superior Court, judicial district of Hartford at Hartford, Docket No. 030823359 (October 6, 2004, Shapiro, J.) [38 Conn. L. Rptr. 54] (overruling plaintiff's objection which asserted that examiner's practice was more expert testimony rather than clinical and that he did not specialize in treatment of adolescents).
Here the plaintiff objects not to the particular doctors but rather objects to the medical examinations taking place in Connecticut. In other words, the plaintiff offers no objection to the qualifications of the doctors — indeed, they are not even mentioned by name in the plaintiff's objection or sur-reply — but to any medical examinations that would require her to return to Connecticut. Essentially, the plaintiff argues that it would be unduly burdensome for her to attend a medical examination in Connecticut because she lives in Iowa and, during the school year, attends college in Nebraska, and because the defendants should have scheduled the examinations to take place when she was already in Connecticut for her deposition on May 12, 2008.,
The court rejects the plaintiff's argument that the medical examinations should have been scheduled to coincide with her travels to Connecticut for her May 20, 2008 deposition, for the following reasons. It appears that following the deposition, the plaintiff continued to supplement her disclosure by producing medical records; for example, the plaintiff admits in her sur-reply that she first produced the records of Dr. Komninakos on June 4, 2008. The parties also agree that there was an issue regarding a missing radiological study at the time of the deposition. Furthermore, the plaintiff filed additional expert disclosures on May 21, 2008, and August 11, 2008-both after her May 20, 2008 deposition. Finally, the court is aware that defendants routinely provide to the examining doctors copies of the plaintiff's deposition transcripts to aid them in their opinion, which would have been difficult to accomplish had the medical examinations here been conducted at the same time. The court can find no fault with the defendants' desire to have the complete materials necessary, including the complete medical records, expert disclosures, and plaintiff's deposition transcripts, for meaningful medical examinations to occur.
Both Conn. Gen. Stat. § 52-178a and Practice Book § 13-11(b) are silent regarding the attendance of out-of-state plaintiffs at medical examinations within this state. Interestingly, Practice Book § 13-29(b) does address compelling the attendance of an out-of-state plaintiff at a deposition within Connecticut:
A plaintiff who is not a resident of this state may be compelled . . . to attend at the plaintiff's expense an examination in the county of this state where the action is commenced or is pending or at any place within thirty miles of the plaintiff's residence or within the county of his or her residence in such other places as is fixed by order of the judicial authority. Practice Book § 13-29(b).
"It seems only fair that a party who as a plaintiff takes advantage of our court system by initiating litigation in our state can be required under Practice Book Rule § 13-29(b) to be deposed in our state if he or she is an out-of state resident." Miller v. Option One Mortgage, Superior Court, judicial district of New Haven, Docket No. 05 4006787 (January 26, 2006, Corradino, J.) [40 Conn. L. Rptr. 628].
There are a handful of Connecticut trial court decisions addressing the reasonableness of an objection to a medical examination based upon distance. The courts have found such objections reasonable in Bonaldi v. Gilbert, Superior Court, judicial district of Waterbury, Docket No. 02 0174598 (July 1, 2004, Alvord, J.,) [37 Conn. L. Rptr. 348] (plaintiff resided somewhere in Connecticut, would agree to see certain Waterbury doctors, and objected to examination by Stratford doctor, also claiming bias) and in Hennessey v. Lawless, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 01 0076343 (March 31, 2004, Bear, J.) [36 Conn. L. Rptr. 750] (where plaintiff resided in Beacon Falls and examining doctor was 75 miles away in Norwich). Such objections have been found unreasonable in Serra v. Highland, Superior Court, judicial district of Waterbury, Docket No. 99 0154900 (July 1, 2004, Alvord, J.) (where plaintiff resided in Florida but would be willing to be examined in Waterbury where she would be staying, and examining doctor was located in Hartford, an approximate 50-mile round trip) and in Everson v. Rite-Aid of Connecticut, Superior Court, judicial district of Windham at Putnam, Docket No. 01 0064871 (January 27, 2004, Swienton, J.) [36 Conn. L. Rptr. 452] (where plaintiff resided in Connecticut and examining doctor was located in Washington, D.C., and would come to Connecticut for the examination and deposition).
On these facts, it would be unreasonable and unfair to the defendants to require them to locate doctors in Nebraska to perform medical examinations, possibly have to arrange for those examiners to be deposed either in Nebraska or Connecticut, as well as attend trial in Connecticut. The court recognizes the difficulties often involved in attempting to schedule local physicians for trial or deposition testimony; it would be a Herculean feat for the defendants to find two Nebraska physicians willing to arrange their schedules to travel to Connecticut to testify at trial. While videotaping or otherwise recording their testimony for use at trial is an option, the defendants should not be forced to have to make that choice. To allow the plaintiff to blanketly object to the defendants' choices of physicians in Connecticut is therefore fundamentally unfair.
The plaintiff argues that the medical examinations should be prohibited, with no sanctions imposed on the plaintiff as a consequence. For the reasons stated above, the court rejects that argument. In the alternative, the plaintiff seeks an order from the court that the medical examinations take place within a reasonable distance from the plaintiff's residence, or, if the medical examinations are to take place in Connecticut, the defendants be ordered to bear the full expense to the plaintiff, including expenses for travel and lodging for the plaintiff and for one of her parents to accompany her. For the reasons stated above, the court finds the plaintiff's objection to the examinations taking place in Connecticut as unreasonable, and will therefore not order that the examinations take place near the plaintiff's residence. The plaintiff's objection to the examinations is sustained in part and overruled in part. While the plaintiff is ordered to attend the examinations in Connecticut, with the defendants bearing the expense of her travel and lodging, she is not compelled by the court to do so. If, however, she does not submit to the examinations, the defendants are entitled to cross-examine the plaintiff on the issue, and to request an adverse interest and/or an order precluding the plaintiff from offering opinion evidence in the same areas that would have been the subject of the examination.
The plaintiff, who is 23 years old, has produced no documentation and has advanced no argument that she is mentally or physically incapacitated, or that other special circumstances exist to warrant the court to order the defendants to pay for a parent to chaperone her. As such, the court is unwilling to do so; if as the plaintiff seems to suggest in her sur-reply, she is uncomfortable or has concerns about traveling alone, she is encouraged to take whatever measures are necessary to ensure safe travel, albeit at her own expense.