Trial Magazine

Under Federal Rule of Civil Procedure 35, medical examinations are part of the litigation process, including in multidistrict litigations (MDLs).¹ These “independent” medical examinations’ most basic purpose is an evaluation of a plaintiff’s medical condition by a defense-selected expert to verify that reported physical or mental injuries are palpable and cannot be attributed to a different cause. However, these examinations are often far from independent or neutral—accordingly, many plaintiff lawyers refer to them as defense medical examinations (DMEs).

Courts may order one or several DMEs for a plaintiff when his or her mental or physical condition is in controversy and the defendant has made a motion for good cause.² To demonstrate good cause for DMEs, defendants must show that information cannot be obtained by other means. Rule 35 has no limit on the number of DMEs allowed, but these two requirements must be met each time.

Courts have looked at whether the DME would be needlessly duplicative, cumulative, or invasive.

Courts may find that DMEs are unduly burdensome, unnecessary, or even unwarranted. Specifically, courts have looked at whether other discovery methods have been used—for example, whether the requested information could be obtained through medical records exchanged during the course of discovery and depositions—and whether the requested DME would be needlessly duplicative, cumulative, or invasive.³ Further, “absent a compelling need, courts are generally reluctant to subject a plaintiff to ‘lengthy . . . and stressful testing.’”⁴

For example, in the Cook Inferior Vena Cava (IVC) Filter MDL, the defendants wanted a plaintiff to undergo an inferior vena cava venogram and upper endoscopy, but the court didn’t find a reason for the plaintiff to undergo this lengthy and stressful testing simply because the plaintiff had previously undergone such testing.⁵ After three cases were selected for bellwether trials, the parties agreed that, if necessary, Rule 35 exams would be conducted for these selected trial plaintiffs.⁶

Despite the parties’ agreement, the court would not approve the defendants’ requests to compel certain DMEs unless there was good cause. One plaintiff was not required to submit to DMEs because certain DMEs were duplicative, cumulative, and invasive. The court echoed that plaintiff’s concerns for respecting “bodily integrity” and refused to permit the defendants to “seek [DMEs] as a literal fishing expedition into [that plaintiff’s] body.”⁷

Limitations and Safeguards

If you raise concerns about prejudice and risks of abuse in the Rule 35 process, the court may place certain limitations and safeguards on DMEs. Especially when your clients are minors, push for safeguards because as members of a vulnerable group, they lack the autonomy and decision-making capacity to legally protect their own interests.

Recording. In some instances, plaintiff counsel may request a DME audio recording to confirm the plaintiff isn’t being subjected to an examination that is more adversarial, rather than scientific, in nature. However, federal courts have generally denied requests to record an examination unless good cause is shown.⁸ I’ve seen courts deny a defendant’s request to record, whether audio or video, because of fears that recording the process would impact how a plaintiff responds.⁹ For example, plaintiffs may not feel comfortable being forthcoming about their mental health issues if they are being recorded.

To the extent courts permit recording, it typically requires agreement by the parties. Generally, however, allowing a defendant to record a DME can intensify the adversarial nature of an evaluation that is supposed to be neutral. A DME, particularly a mental examination, “‘could easily be transformed into a de facto deposition.’ . . . At least at the ideal level, the encounter between the examiner and the party is not to be adversarial but scientific.”¹⁰ In objecting to defense requests for a recording, highlight the risks of the exam becoming adversarial, as well as the impact recording the exam could have on a plaintiff’s responses.

Third parties. A DME that involves sensitive issues, including past trauma, may be difficult for a plaintiff, especially a minor, to experience alone. In these instances, you may want a third-party “support person” to attend—for example, a parent or guardian. This is something that can be agreed to among the parties or via court approval. Rule 35 is silent on this issue, but “it is well-settled that courts have the discretion to allow for the presence of a third party under appropriate circumstances.”¹¹

I’ve seen courts hesitate to permit the presence of another person because it could impact how the plaintiff responds.¹² For instance, if a parent is present, a minor may not want to be forthcoming about mental health issues or prior tobacco or drug use. Nonetheless, given the differences in opinions among the courts, it doesn’t hurt to ask for a support person to attend.

Location

An MDL may include thousands of plaintiffs—but not all will live in the same venue. So where exactly must a plaintiff submit to a DME—in the venue where the action is filed or another site? And who bears the cost of paying for the DME? These two questions are especially important if a plaintiff is being asked to undergo more than one DME.

Generally, a plaintiff must submit to a DME in the venue where the action is filed.¹³ In other words, when plaintiffs bring suits in a forum, they may not avoid appearing in that forum for an examination. However, this general rule can raise difficulties for plaintiffs, especially in MDLs involving plaintiffs from across the country. For this reason, the parties may consent to conducting DMEs in another mutually agreed on place outside the forum state.

When the parties cannot agree, there are limited instances when plaintiffs may successfully argue for DMEs to be conducted in the jurisdiction where they reside.¹⁴ The burden is on the plaintiff to show that exceptional circumstances exist because traveling for a DME would pose an undue burden or hardship.¹⁵ Among other justifications, courts might consider whether traveling for a DME would harm a plaintiff’s health—however, meeting this burden is often difficult for plaintiffs.¹⁶

Some courts also have ruled that showing undue financial hardship or prior work plans is not sufficient.¹⁷ A Florida court, for example, found it was not an undue burden for a plaintiff to travel from California to Miami for DMEs despite the plaintiff having limited financial means and being the sole caretaker for her gravely ill daughter.¹⁸

But a North Carolina court found that an examination should take place at a plaintiff’s residence or elsewhere within the forum state because the plaintiff was wheelchair bound, had no transportation to get to the examination, and the drive to the proposed location was four hours.¹⁹

Although these conflicting precedents paint a problematic picture, they show that the standard isn’t impossible for plaintiffs to meet. Decisions on this issue vary between states and are determined by the facts in each case. It’s also possible given the pandemic and changing state restrictions that we may see trends in plaintiffs’ favor on this front, especially for those with high-risk illnesses. For instance, courts may not want to subject a high-risk plaintiff with lung issues to traveling to a state with a surge in COVID-19 cases.

Costs

Barring extraordinary circumstances, plaintiffs generally are expected to bear their expenses when submitting to DMEs in the district where they filed suit.²⁰ However, traveling for DMEs can be very expensive due to transportation costs—although your firm likely can cover the cost as a case expense.

In limited instances, a defendant may be required to cover the costs of travel expenses. For example, a Kansas court found good cause for the defendant paying the plaintiff’s expenses when the plaintiff was completely destitute following her employment termination by the defendant.²¹

On occasion, courts also have considered a “poor planning exception” when determining whether defendants should cover expenses.²² For instance, a court may look at whether the plaintiff recently had to cover travel expenses to be deposed by defendants in the same area as the planned DME.²³ If a poor planning argument can be made, it is worth advocating for.

Timing

With hundreds or sometimes thousands of plaintiffs’ cases pending in a consolidated venue, discovery in MDLs tends to differ from single event cases. In the vast majority of MDLs, bellwether orders call for DMEs to be conducted during the supplemental fact discovery phase, not during the core discovery phase of the bellwether nominee cases. During the supplemental fact discovery phase, case specific discovery is performed in the bellwether trial cases, which encompasses a smaller group of plaintiffs.

Given the size of some bellwether nominee pools, conducting DMEs during the supplemental fact discovery phase when bellwether trial cases are finalized and selected is the least burdensome option. For example, in the Taxotere MDL, 10 cases were selected for the bellwether nominee pool, from which four cases would be selected for the second phase of discovery and then ranked in the order to be tried.²⁴ Phase one of discovery included depositions but not DMEs. The plaintiffs in the four cases selected for phase two of discovery then underwent DMEs pursuant to a Louisiana federal district court order. With only four cases subject to defense DMEs, the plaintiffs saved time and resources.

However, in a few instances, MDLs have gone against this trend, with courts allowing DMEs to be conducted during the core discovery phase with all bellwether nominee pool selections. With the latter option, the size of the litigation is not always the main consideration—for instance, in the 3M Combat Earplugs MDL, close to 300,000 cases are pending in the MDLs administrative and active docket combined.²⁵

Out of the cases on the active docket, wave orders (consisting of approximately 500 cases per order) are being selected every three months to undergo advanced discovery, which includes DMEs.²⁶ Within nine months, that’s 1,500 plaintiffs needing to be scheduled and examined by defense medical providers.

And in the Juul Inc. Marketing, Sales Practices & Products Liability MDL, the Northern District of California ordered 24 cases to be selected for the bellwether nominee pool; four of these would ultimately serve as the bellwether trial selections.²⁷ The 24 cases would first undergo core discovery, and then the four bellwether trial selections would undergo supplemental fact discovery.

The parties disagreed on whether DMEs should occur during the core discovery phase (defendants’ position) or during the supplemental discovery phase (plaintiffs’ position). Ultimately, the court ordered that three to four plaintiffs would submit to DMEs during the core discovery phase. These three to four plaintiffs had alleged physical or mental injuries but did not receive medical treatment for them.

However, the court ordered that these DMEs take place via video and serve as one of the three depositions allowed as core discovery to limit burdens on the plaintiffs, who are minors in school. Further, these plaintiffs’ DMEs would be the only Rule 35 examinations allowed for them, as well as the only DMEs permitted prior to the bellwether trial selections.

Rule 35 exams can raise complex issues for plaintiffs. To keep DMEs from turning into adversarial encounters, mull over whether, where, and when a DME should take place, as well as who should bear the travel costs. When conflicts arise, turn to the courts, which have the discretion to resolve these issues.

EricaRae M. Garcia is an associate attorney at Weitz & Luxenberg in New York City and can be reached at egarcia@weitzlux.com.

Notes

1. Fed. R. Civ. P. 35.
2. See id.
3. McDonald v. Southworth, 2008 WL 2705557, at *3 (S.D. Ind. July 10, 2008); see also In re E.I. Du Pont de Nemours & Co. C-8 Litig., 379 F. Supp. 3d 669, 679 (S.D. Ohio 2019).
4. See Order Denying the Cook Defendants’ Request for Independent Medical Exam, In re Cook Med., Inc., IVC Filters Mktg., Sales Practices and Prods. Liab. Litig., 2017 WL 2403052 (S.D. Ind. June 1, 2017) (citing McDonald, 2008 WL 2705557, at *4).
5. Id.
6. In re Cook Med., Inc., No. 1:14-ml-2570-RLY-TAB, Dkt. Nos. 1508, 2107, 3015, 4978, 4935.
7. See In re Cook Med., Inc., 2017 WL 2403052, at *4 n.2.
8. See Order Granting Defendant’s Motion to Compel Rule 35 Examinations, Ayat v. Société Air France, 2007 WL 1120358, at *7 (N.D. Cal. Apr. 16, 2007) (No. 51, 62) (reviewing courts’ different approaches to this question and concluding that Rule 35 did not contemplate recording of DMEs as a routine practice); Samuel D. Hodge, Jr. et al., A Guide to the Independent Medical Examination, 25 Alb. L.J. Sci. & Tech. 339, 366 (2015) (“The federal district courts generally hold that recording devices will not be allowed unless good cause for its use is shown.”); see also Morrison v. Stephensen, 244 F.R.D. 405, 406–07 (S.D. Ohio 2007).
9. In re Juul Labs, Inc. Mktg., Sales Practices and Prods. Liab. Litig., No. 3:19-md-02913-WHO (N.D. Cal.) (ECF No. 1770).
10. See 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §2236 (3d ed.).
11. Lureen v. Doctor’s Assocs., Inc., 2017 WL 4535925, at *2 (D.S.D. Oct. 10, 2017) (citing Wright & Miller §2236); see also Newman v. San Joaquin Delta Community College Dist., 272 F.R.D. 505, 513 (E.D. Cal. 2001) (allowing support person to be present outside examination room for college student suing school district for ADA violations).
12. In re Juul Labs, Inc., No. 3:19-md-02913-WHO.
13. See Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 399–400 (S.D. Tex. 2013); Lerick v. Steiner Transocean Ltd., 228 F.R.D. 671, 672 (S.D. Fla. 2005); McCloskey v. United Parcel Serv. Gen. Servs. Co., 171 F.R.D. 268, 270 (D. Or. 1997); Order Granting Defendant’s Motion to Compel Plaintiff’s Physical Examination, Leal v. Siegel, 2006 WL 2263905, at *1 (N.D. Cal. Aug. 8, 2006) (No. C05-00959).
14. Ornelas, 292 F.R.D. at 400.
15. Id.
16. Baird v. Quality Foods, Inc., 47 F.R.D. 212, 213 (E.D. La. 1969).
17. See Ornelas, 292 F.R.D. at 399–400 (plaintiff being required to submit to an examination located more than 100 miles from home did not amount to “undue burden or hardship”); McCloskey, 171 F.R.D. at 270 (plaintiff required to submit to an examination in the forum state because estimating that travel costs would cost more than $15,000 did not show undue financial hardship); Leal, 2006 WL 2263905, at *1–2 (plaintiff required to submit to an examination in the venue where the action was filed despite unavailability because of prior work plans).
18. Levick, 228 F.R.D. at 672.
19. Blount v. Wake Elec. Membership Corp., 162 F.R.D. 102, 107 (E.D.N.C. 1993).
20. McCloskey, 171 F.R.D. at 270; Leal, 2006 WL 2263905, at *1 (citing 7 Moore’s Federal Practice §35.09 (Matthew Bender 3d ed.)).
21. See Memorandum & Order, Chaparro v. IBP, Inc., 1994 WL714369, at *4 (D. Kan. Dec. 7, 1994) (Civ. A. No. 93–2200–GTV).
22. McCloskey, 171 F.R.D. at 270.
23. Id.
24. Taxotere Prods. Liab. Litig., MDL No. 2740, Dkt. Nos. 669, 670, 1819, 4690 (E.D. La.).
25. In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19md2885, Case Mgmt. Order 31 (Wave Order 1) (N.D. Fla.).
26. Id.
27. In re Juul Labs, Inc., No. 3:19-md-02913-WHO, Dkt. No. 1455 (N.D. Cal.).