Judge v. Solid Waste Services Inc.

41 Pa. D. & C.4th 225, 1999 Pa. Dist. & Cnty. Dec. LEXIS 178
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJanuary 4, 1999
Docketno. 97-CV-5282
StatusPublished
Cited by1 cases

This text of 41 Pa. D. & C.4th 225 (Judge v. Solid Waste Services Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Judge v. Solid Waste Services Inc., 41 Pa. D. & C.4th 225, 1999 Pa. Dist. & Cnty. Dec. LEXIS 178 (Pa. Super. Ct. 1999).

Opinion

MINORA, J.,

This action comes before the court by way of defendants’ motion to compel attendance at an independent medical examination. This case arises out of an automobile accident which occurred on November 21, 1995, when a vehicle operated by defendant Daniel C. Gawron struck Frank Judge Jr.’s vehicle. As a result of this accident, the plaintiff claims to have suffered severe and serious personal injuries.

Due to plaintiff’s extensive injuries, defendant Solid Waste Services Inc., defendant Daniel C. Gawron and defendant J.P. Mascara & Sons request that plaintiff undergo an independent medical examination by a cardiologist and an orthopedist.

Specifically, defendants request that plaintiff be examined by an orthopedist, Dr. Albert Liddell, of Williamsport and a cardiologist, Dr. George Moffit, of Wormleysburg, both located in Pennsylvania. Plaintiff has refused to submit to said medical examinations and instead has offered to have an IME take place in either Lackawanna or Luzerne County.

An argument was held before this court on October 21, 1998, and the parties have briefed their respective positions. This memorandum and order follow.

FACTS

On November 21, 1995, plaintiff was traveling in an automobile in a northerly direction on South State [227]*227Street in Clarks Summit, Lackawanna County, Pennsylvania at a point near the intersection of South State Street and Colburn Avenue. At the aforementioned time and place, plaintiff proceeded to bring his automobile to a complete stop. Subsequently, defendant Gawron, while acting as an agent, representative, servant, workman and/or employee of defendant Solid Waste and defendant Mascaro, was operating one of the trucks owned, operated, possessed, maintained and/or controlled by defendants Solid Waste and Mascaro and struck the plaintiff’s automobile in the rear. The accident caused severe and serious injuries to the plaintiff. Specifically, plaintiff alleges impairments of bodily functions including, but not limited to, injuries to his back, shoulder, neck, heart and cardiovascular system, and multiple contusions of which some or all might be permanent in nature. In addition, plaintiff alleges that because of this accident, he has suffered a heart attack resulting in permanent disability to his heart.

On November 5, 1997, plaintiff Frank Judge Jr., and his wife, plaintiff Mary Judge, filed a writ of summons. On February 4, 1998, plaintiffs filed a complaint and subsequently filed an amended complaint on March 2, 1998.

On March 23, 1998, defendants responded by filing an answer to plaintiffs ’ complaint with new matter. Plaintiffs on April 8, 1998 filed a response to defendants’ new matter.

On October 15, 1998, defendants filed a motion to compel attendance at an independent medical examination and a brief in support of said motion. Plaintiffs filed a brief in opposition to the defendants’ motion to compel a defense medical examination. Therefore, this matter is now ripe for decision.

[228]*228DISCUSSION

Pennsylvania Rule of Civil Procedure 4010(a) authorizes a trial court to order the mental or physical examination of a party when the mental or physical condition of that party is in controversy. In addition to the requirement of the party’s condition being in controversy, this rule also provides that said examination be granted only on a motion for good cause shown. John M. v. Paula T., 524 Pa. 306, 314, 571 A.2d 1380, 1383 (1990). The good cause requirement is intended to ensure that a plaintiff’s privacy is not unduly invaded, Uhl v. C.H. Shoemaker & Son Inc., 432 Pa. Super. 230, 234, 637 A.2d 1358, 1360 (1994), and to preclude the use of such examination for improper purposes. McGratton v. Burke, 449 Pa. Super. 597, 601-602, 674 A.2d 1095, 1097 (1996), alloc. denied, 546 Pa. 667, 685 A.2d 546 (1996). The determination of whether the requisite good cause exists is left to the sound discretion of the trial court and this decision may not be reversed on appeal unless it is manifestly unreasonable and an abuse of discretion is shown. Id.

In the instant case, this court is confronted with three related issues: (1) whether defendants are entitled to have plaintiff submit to an IME; (2) whether defendants’ request to have plaintiff travel at least 100 miles to undergo an IME is reasonable; and (3) whether defendants can require plaintiff to submit to two separate IMEs. In order to address the above issues, this court will initially examine the respective parties’ arguments to help provide a useful background.

Issue I: Whether Plaintiff Should Be Required To Submit to an IME

Defendants maintain that plaintiff clearly made his physical condition an issue in this present case by raising [229]*229numerous allegations of serious and severe personal injuries. Defendants argue that the nature of the accident was a low-speed rear-end collision, and thus question the severity of plaintiff’s injuries.

In addition, defendants argue that plaintiff had previously suffered from a heart condition, which included at least one heart attack prior to this automobile accident. Similarly, defendants aver that plaintiff’s own cardiologist indicated that plaintiff experienced two episodes of angina during the months immediately preceding this accident and made no indication regarding the causal relationship between plaintiff’s heart attack and the said automobile accident. Moreover, defendants claim that only plaintiff’s family practitioner found a causal relationship between the accident and his heart attack. Based on the above, defendants deny any relationship between the accident and plaintiff’s subsequent heart attack and alleged cardiovascular injuries.

With regards to plaintiff’s claims of back, shoulder, neck and hip injuries, defendants contend that prior to this accident, plaintiff suffered from arthritis and even sought medical treatment for back and hip pain.

Therefore, defendants request that plaintiff undergo an IME by a cardiologist and an orthopedist regarding the injuries plaintiff alleges to have suffered as a result of what defendants claim to be a minor impact automobile accident. In an attempt to have plaintiff submit to an IME, defendants arranged for Dr. Albert Liddell, an orthopedist from Williamsport and Dr. George Moffit, a cardiologist from Wormleysburg, to examine the plaintiff.

Initially, we note that plaintiff does not dispute the fact that he is required to submit to an IME. Although this court need not address this issue, for purposes of completeness we shall. In order to dispose of this issue, [230]*230we will start by examining the governing civil procedure rule. Rule 4010 of the Pennsylvania Rules of Civil Procedure provides:

“(a) When the mental or physical condition (including blood group) of a party, or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control.

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Related

DiGiacinto v. Obelinas
38 Pa. D. & C.5th 72 (Lackawanna County Court of Common Pleas, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
41 Pa. D. & C.4th 225, 1999 Pa. Dist. & Cnty. Dec. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judge-v-solid-waste-services-inc-pactcompllackaw-1999.