An important part of a personal injury case can be determining the physical condition of the plaintiff. A New Mexico federal trial court recently decided an insurance company defendant’s motion seeking an independent medical examination of the plaintiff. The court tried to balance the parties’ rights because there were several points of disagreement including duration and scope and, ultimately, granted the motion in part and denied it in part.
Allegedly the plaintiff, who was a passenger in the bed of a pick-up truck on the day of the accident, suffered serious and permanent injuries after the truck she was in rolled off a washed-out dirt road. She sought to recover damages from an insurance company on the basis of failure to pay underinsured motorist insurance benefits that she alleged were due to her. Her lawsuit included claims for breach of the duty of good faith and fair dealing, breach of fiduciary duty and violation of the New Mexico Unfair Insurance Practices Act and the New Mexico Unfair Practices Act. The insurance company defendant responded by, among other things, seeking a court order requiring the plaintiff to undergo an independent medical examination with no restrictions under Federal Rule of Civil Procedure 35.
Under Rule 35, a federal court may order “a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). The Rule tries to balance the rights of parties as its provisions reflect. For example, court orders under the Rule “may be made only on motion for good cause and . . . must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2). Under cases construing the Rule discussed by the court, the party requesting the examination must show that the physical or mental condition of the party to be examined is in controversy and that good cause exists for the examination. Additionally, the court explained that the showing of good cause is to be a greater showing than that under other discovery rules because a mere relevance standard would render the good cause requirement meaningless. The court also explained that, while Rule 35 of the Federal Rules of Civil Procedure should be construed liberally to allow discovery, how it is to be applied in a particular case is within the “sound discretion” of the court.
The plaintiff opposed undergoing an independent medical examination on the grounds of lack of justification and lost on this argument. This is because the plaintiff had previously explained, in response to interrogatories served on her by the insurance company, that she suffered preexisting injuries and that the accident exacerbated the injuries, causing her to experience permanent pain in her neck and back. The court found significant that a previous medical examination was over a year old.
The court did, however, impose some conditions including that the examination be scheduled to take place at a mutually agreeable time. If the parties could not agree, the court would order it start at 9 a.m. The court also ordered the examination to last no more than four hours unless the plaintiff agreed to a longer time or the court ordered an extension of the four hours for good cause shown. While the court declined to shift the cost of travel to the independent medical examination to the insurance company and did not grant the plaintiff all of the conditions she wished to impose on the examination, the court promised to make itself available by phone to counsel. The court also declined to award fees and costs associated with the insurance company defendant’s motion.
If you or a loved one has been injured in an accident, there may be grounds for a financial recovery. An award of damages by a court or settlement agreed to by the parties can assist people who are injured and their families with the medical costs, lost wages, and pain and suffering caused by the accident. To understand more about your case and how it can be pursued to maximize your recoveries, call New Mexico personal injury lawyer Matthew Vance at the Law Office of Matthew Vance, P.C. We provide a free consultation and can be reached at (505) 242-6267 or online.
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