Tarte v. United States

249 F.R.D. 856, 2008 U.S. Dist. LEXIS 11629, 2008 WL 449945
CourtDistrict Court, S.D. Florida
DecidedFebruary 15, 2008
DocketNo. 07-60762-CV
StatusPublished
Cited by17 cases

This text of 249 F.R.D. 856 (Tarte v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tarte v. United States, 249 F.R.D. 856, 2008 U.S. Dist. LEXIS 11629, 2008 WL 449945 (S.D. Fla. 2008).

Opinion

ORDER

ROBIN S. ROSENBAUM, United States Magistrate Judge.

This matter came before the Court upon the ore tenus emergency motion of the United States of America to preclude Plaintiff Karen Tarte’s attorney or any other representatives or agents of Plaintiff from attending Plaintiffs Rule 35, Fed.R.Civ.P., medical examinations and to require Plaintiff to submit to x-rays, magnetic resonance imaging, and the taking of a medical history deemed by the government’s examining physicians to be necessary to conduct a meaningful Rule 35 examination of Plaintiff. The Court held a hearing on February 12, 2008, and heard argument of Plaintiff and Defendant. At the [858]*858conclusion of the hearing, the Court ruled from the bench. This Order memorializes that ruling.

7. BACKGROUND

In this case, Plaintiff alleges that a United States Postal Service (“USPS”) employee acting within the scope of her employment improperly backed her USPS van over Plaintiff. D.E. 1, 111110-12. As a result, Plaintiff suffered, among other alleged damages, fractures of the left tibia and fibula, cervical sprain and strain, and other injuries requiring surgical intervention and medical care and treatment. Id. at 1116; D.E. 1, Ex. A. Accordingly, Plaintiff sues the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, and under the Postal Reorganization Act, 39 U.S.C. §§ 401, et seq.

During the course of discovery, the United States scheduled Rule 35, Fed.R.Civ.P., examinations for Plaintiff with Dr. Grossman, an orthopedic surgeon, and Dr. Pasarin, a neurological surgeon. After setting the examinations, Defendant sent a letter to Plaintiffs counsel indicating that she had advised the examining physicians that no one other than Plaintiff and the doctors’ necessary staff would be present for the examinations.

On the day that Dr. Grossman conducted his examination of Plaintiff, however, she arrived accompanied by her attorney, who indicated that he would be staying during the examination. Dr. Grossman contacted counsel for Defendant, who acquiesced, on the basis that Plaintiffs attorney would not interfere with the examination. According to Defendant, however, Plaintiff and her counsel refused to allow Dr. Grossman to conduct x-rays, MRI’s, and a medical history, which Dr. Grossman believed to be necessary in order to determine the extent of Plaintiffs injuries and condition.

Plaintiffs counsel stated at the February 12th hearing that he did not view the x-rays and MRI’s as necessary, as Plaintiff had had x-rays performed at the direction of her own physician in November, 2007, and he had brought those x-rays with him to the examination. He further explained that he thought that Plaintiff had already been exposed to enough radiation through her own medical examinations. Additionally, Plaintiffs counsel said that Dr. Grossman did not know that Plaintiffs counsel brought such x-rays to the examination because Plaintiffs counsel did not wish to violate his agreement with the United States, so he did not mention the x-rays, although he set the large envelope containing them on the counter in the examination room. Dr. Grossman advised the United States that he was unable to conduct an effective examination without being permitted to perform the tests he deemed necessary.

Following Dr. Grossman’s examination, Plaintiffs counsel indicated his intention to the United States to attend the Rule 35 examination scheduled to be conducted by Dr. Pasarin on February 13th, and further, to decline to allow Plaintiff to submit to x-rays, MRI’s, and other procedures, including censoring medical history questions that the doctor might ask. In light of Plaintiffs counsel’s expression of these intentions, Defendant requested an emergency hearing so that it could seek an order from the Court precluding Plaintiffs counsel from attending the Rule 35 examinations and requiring Plaintiff to submit to medical testing deemed necessary by Defendant’s experts. As noted previously, the Court held a hearing on February 12th to resolve the matter.

77. ANALYSIS

Rule 35, Fed.R.Civ.P., is silent on who may attend a “physical or mental” examination. Consequently, the issue is left to the Court’s discretion. Wheat v. Biesecker, 125 F.R.D. 479, 480 (N.D.Ind.1989) (citing Dziwanoski v. Ocean Carriers Corp., 26 F.R.D. 595 (D.Md.1960)).

Plaintiff urges the Court to consider state case law regarding whether a Plaintiff may have her attorney attend a medical examination scheduled by the opposing party. In support of this position, Plaintiff relies upon Gensbauer v. May Dept. Stores Co., 184 F.R.D. 552 (E.D.Pa.1999). In Gensbauer, although the court noted that rulings from other judges in the district had held that parties have no right to have counsel or other observers present during an examination, the court decided to rely on the Pennsylvania state rule permitting attorneys to be present [859]*859at examinations. Id. at 553. In support of this conclusion, the court stated that the case involved was a diversity case, and the federal rule was silent on the issue. Id. Consequently, the court deemed it appropriate to consider state law on the subject.

The undersigned expresses no opinion on the advisability of Gensbauer’s holding. Gensbauer was a diversity case. Accordingly, the Gensbauer plaintiffs cause of action arose purely under state law, and her case could have proceeded in state court. This case, unlike Gensbauer, is not a diversity case. As a result, Plaintiff can proceed with her claims only in federal court, as her causes of action arise under federal statutes that allow only for federal jurisdiction. Indeed, because she has sued the sovereign, her case can proceed only because the federal defendant has authorized the lawsuit (through the FTCA and PRA). Thus, although Rule 35 itself does not expressly address the issue of whether an observer may attend a medical examination with a plaintiff at the plaintiffs request, the Court chooses to rely upon the federal eases that determine this issue under Rule 35, Fed.R.Civ.P., without looking to the applicable states’ rules of procedure regarding attendance of observers at medical examinations.

Although some federal courts have permitted observers or recordings of Rule 35 examination, federal courts have found that the party seeking to have the observer present bears the burden of demonstrating “good cause” for the request under Rule 26(b), Fed.R.Civ.P., as the presence of a third party is not typically necessary or proper. Schlunt v. Verizon Directories Sales-West, Inc., 2006 WL 1643727, *4 (M.D.Fla. June 12, 2006) (citing Wheat, 125 F.R.D. at 480). Indeed, courts have held that the presence of a third party or recording device, which is analyzed in the same way that the presence of an observer is considered, “subvertís] the purpose of Rule 35, which is to put both the plaintiff and defendant on an equal footing with regard to evaluating the plaintiffs [medical] status.” Favale, 235 F.R.D. at 557 (citing Duncan v. Upjohn Co., 155 F.R.D. 23, 26-27 (D.Conn.1994)); see also Abdulwali v. Washington Metro Area Transit Authority, 193 F.R.D. 10, 13 (D.D.C.2000).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
249 F.R.D. 856, 2008 U.S. Dist. LEXIS 11629, 2008 WL 449945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tarte-v-united-states-flsd-2008.