Wilczynski v. Lackawanna County Multi-Purpose Stadium Authority

42 Pa. D. & C.4th 337, 1999 Pa. Dist. & Cnty. Dec. LEXIS 146
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJune 28, 1999
Docketno. 96 CV 3535
StatusPublished
Cited by2 cases

This text of 42 Pa. D. & C.4th 337 (Wilczynski v. Lackawanna County Multi-Purpose Stadium Authority) 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
Wilczynski v. Lackawanna County Multi-Purpose Stadium Authority, 42 Pa. D. & C.4th 337, 1999 Pa. Dist. & Cnty. Dec. LEXIS 146 (Pa. Super. Ct. 1999).

Opinion

MINORA, J.,

Defendant, Lackawanna County Multi-Purpose Stadium Authority, has filed a motion to compel a second independent medical examination of the plaintiff by Dr. Badigo on behalf of the defendant and defendant’s liability insurance carrier. For the reasons set forth below, the defendant’s motion to compel a second IME is denied.

FACTUAL AND PROCEDURAL BACKGROUND

The complaint of the plaintiffs alleges that on July 22, 1994 at 9:30 p.m., the plaintiffs were lawfully on stadium’s premises attending a baseball game as business invitees of the defendant. At that time, an accumulation of water or other liquid was allowed to exist on the stairwell of the stadium’s premises between the upper deck and the main concourse. At that date, place and time, the plaintiff, Debra Wilczynski, while walking down the stairwell, was caused to fall by the liquid accumulation, violently striking her head, allegedly causing permanent closed head injuries in the nature of cognitive impairment. (See plaintiffs’ complaint pp. 1-16.)

Approximately six months prior to the filing of this lawsuit, plaintiff voluntarily submitted herself for an evaluation by Dr. John R. Harvey, a licensed psychologist and director of psychology at Allied Services for the Handicapped. This evaluation took place on or about January 24 and 25, 1996 at the request of Cor-Vel Corporation, a claim corporation acting on Authority’s behalf. Dr. Harvey conducted a number of tests including Wais-R; Wechsler Memory Scales; Woodcock-Johnson Psycho-Educational, Dean Woodcock Sensory Motor; Booklet Categories Test; MMPI-2; Beck Anxiety Inventory; Beck Depressing Inventory; and Tests of Variable [339]*339attention. As a result of the two-day examination and the battery of tests performed, Dr. Harvey generated a copious, thorough and comprehensive report covering 18 pages. (See p. 9 and exhibit 5 of defendant’s motion for second IME.)

In his report, noted above, Dr. Harvey summarized that Debra Wilczynski now possesses intellectual abilities which are slightly below expectation based upon her premorbid functioning. He further notes weakness in auditory attention, short-term auditory memory, auditory active working memory and visual organization. Dr. Harvey also found Debra to have moderate difficulty with complex verbal and visual memory and she now has delayed recall showing moderate to severe weakness. The evaluation goes on to note that the response speed and the variability of the plaintiff are significantly high and are consistent with neurological difficulties.

In concluding, the doctor noted that overall, the data points to selective cognitive and mood deficits that are secondary to her head injury. His final diagnosis is am-nestic disorder secondary to closed head injury and mood disorder secondary to closed head injury with depressive features.

Additionally, the plaintiff has received extensive treatment-oriented medical and psychological testing from her own group of health care professionals in addition to the defense independent medical exams.

Defendant now requests that the plaintiff be compelled to submit to a second IME by a different health care professional, Dr. Badigo, as opposed to their first examiner, Dr. Harvey, for essentially the following reasons: (1) In the last year the defendant has now acquired all of plaintiff’s expert testing data; (2) Defendant has consulted with a new expert, Dr. Badigo, who suggests a need for [340]*340his examination and assessment; (3) Plaintiff’s multiple experts justify an additional expert evaluation, examination and report; (4) A new exam is justified by the passage of time, the new or updated plaintiff’s reports and the defendant should be allowed to choose its own IME expert.

It is significant that there is no allegation present that the plaintiff has sustained a new injury nor has the plaintiff been accused of deliberately concealing an injury at the time of the first examination. In such a case, consecutive examinations have been allowed. See Lodolce v. Township of Roaring Brook, 99 Lacka. Jur. 54, 57 (1998).

DISCUSSION

Pa.R.C.P 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 may be granted only upon a motion for good cause shown. John M. v. Paula T., 524 Pa. 306, 312, 571 A.2d 1380, 1383 (1990). The good cause requirement is intended to ensure that a plaintiff’s privacy is not unduly evaded, 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), allocatur 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 discretion may not be reversed [341]*341on appeal unless it is manifestly unreasonable and/or an abuse of discretion is shown. Id.

In the instant case, this court is confronted with the issue of whether the defendant has the right to submit a plaintiff to a second IME by a new physician when the defendant, at its peril, chose not only the original IME physician but also the timing, the manner and the scope of that examination with the full cooperation of the plaintiff. The defendant argues that the plaintiff has clearly made her physical condition an issue in this particular case by raising numerous allegations of severe and serious personal injuries. The defendant argues that the nature of the accident, the slip and fall, the fact that it was a closed head type of injury with related cognitive impairments, raise an issue that would make one question the severity of the plaintiff’s allegations of injuries.

In addition, the defendant argues that, in order for the closed head injury and cognitive impairments to be evaluated, it is necessary to have both a before and after profile of the plaintiff. Therefore, the defendant is now requesting that the plaintiff undergo an IME by a neurop-sychologist regarding the closed head injuries and cognitive impairments that she is alleged to have suffered as a result of her slip and fall at the Lackawanna County Stadium. In an attempt to have the plaintiff submit to this second IME, the defendant has made arrangements for examination by a doctor from the Philadelphia area who the court believes would be willing to travel to this area to accommodate the needs of the plaintiff.

Initially, we should note that the plaintiff never disputed the fact that she is required to submit to an IME. Although the court need not address this issue, for the purposes of completeness, we shall. In order to dispose of this issue, we review again the examining governing [342]*342civil procedure rule, Rule 4010, Pennsylvania Rules of Civil Procedure, it provides as follows: “(a) [w]hen the mental or physical condition [including blood group] of a party or . . .

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Cite This Page — Counsel Stack

Bluebook (online)
42 Pa. D. & C.4th 337, 1999 Pa. Dist. & Cnty. Dec. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilczynski-v-lackawanna-county-multi-purpose-stadium-authority-pactcompllackaw-1999.