Lead Opinion
We must decide whether the trial court abused its discretion under MCR 2.311(A) by denying defendants, K.A.M. Transport, Inc., M & Y Express, Inc., and Aly Mohamed Maarouf, an opportunity to have plaintiff, Karen Burris, submit to additional independent medical examinations (IMEs) when plaintiff had previously submitted to similar IMEs in another case involving the same alleged injuries. For the reasons articulated below, we hold that the trial court abused its discretion when it denied defendants’ motion to compel IMEs. Accordingly, we reverse and remand for further proceedings.
I. FACTUAL BACKGROUND AND PROCEEDINGS
This appeal originates from an automobile accident that occurred on September 28, 2009. On that date,
In March 2010, plaintiff filed a third-party action against defendants and in October 2010, plaintiff filed a separate, first-party no-fault benefits action against AAA.
Plaintiff opposed defendants’ motion to compel arguing that good cause to require additional IMEs did not exist because defendants were attempting to “duplicate testimony” by having plaintiff undergo additional IMEs that would unfairly provide defendants with two specialty doctors that disagreed with plaintiffs treating physicians. Plaintiff maintained that defendants were entitled to their own IMEs, or the use of AAAs IMEs, but not both.
After hearing oral argument, the trial court denied the motion and offered the following rationale for doing so:
It appears that at least five independent medical examinations have already been conducted plus the other medical involved in this case. It seems to me that should be sufficient for all of the parties on the Defense side. This [sic], any additional examinations appear to be overburden-some and really puts the Plaintiff in an unfair disadvantage.
Subsequently, defendants filed an application for leave to appeal this order. Initially, we denied the application for leave to appeal “for failure to persuade the Court of the need for immediate appellate review.” Burris v KAM Transp Inc, unpublished order of the Court of Appeals, entered November 28, 2011 (Docket No. 303104). However, on October 24, 2012, our Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. Burris v KAM Transp, Inc,
II. ANALYSIS
MCR 2.311(A) provides a trial court with discretion to order a party to submit to a physical or mental examination. See Muci v State Farm Mut Auto Ins Co,
MCR 2.311(A) states:
When the mental or physical condition (including the blood group) of a party, or of 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 or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party’s custody or legal control. The order may be entered only on motion for good cause with notice to the person to be examined and to all parties. The order must specify the time, place, manner,*488 conditions, and scope of the examination and the person or persons by whom it is to be made, and may provide that the attorney for the person to be examined may be present at the examination.
Here, there is no dispute that plaintiffs mental and physical conditions are in controversy. Thus, according to the plain language of the court rule, the court “may” order plaintiff to submit to physical and mental examinations by medical professionals if the court finds good cause to do so. We now turn to whether good cause existed to order the IMEs under MCR 2.311.
“In the context of our court rules, ‘[g]ood cause simply means a satisfactory, sound or valid reason[.]’ The trial court has broad discretion to determine what constitutes ‘good cause.’ ” Thomas M Cooley Law Sch v Doe 1,
(a) Order for an Examination.
(1) In General. The court where the action is pending may order a party whose mental or physical condition— including blood group—is in controversy to submit to a*489 physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
The seminal case interpreting FR Civ P 35, and in particular the “good cause” and “in controversy” requirements of that rule, is Schlagenhauf v Holder,
are not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. Obviously, what may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant.
Rule 35, therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of “in controversy” and “good cause,” which requirements, as the Court of Appeals in this case itself recognized, are necessarily related. This does not, of course, mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination.*490 Nor does it mean that an evidentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule.
Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. [Citations omitted; emphasis added.]
The precise question here is whether the trial court abused its discretion when it found no good cause under the court rule to order an additional IME because: (1) the IMEs already performed for a different defendant in a related case were sufficient for defendants to use in this case and (2) the general unfairness to a plaintiff in having to oppose more than one defense expert at trial.
Turning to the federal decisions addressing whether good cause exists to order a plaintiff to undergo an additional examination, in Vopelak v Williams, 42 FRD 387 (ND Ohio, 1967), the district court ordered the plaintiff to submit to examinations by a local doctor and dentist, even though before filing suit she had previously submitted to examinations by a New York doctor and dentist at the request of the defendants’ insurance carrier. The district court noted that although FR Civ P 35 did not limit the number of examinations, a court should “require a stronger showing of necessity before it will order such repeated examination.” Id. at 389. In granting the second examinations, the Vopelak Court recognized the practical difficulty that the defendants faced in having out-of-state doctors testify, noted the
In Lewis v Neighbors Constr Co, 49 FRD 308 (WD Mo, 1969), the plaintiff—like the plaintiff in this case—contended that a second examination would unfairly benefit the defense at trial. The plaintiff filed an action against the defendant in state court and submitted to an IME under the state discovery rules. Once the action was removed to federal court, the defendant moved for another medical examination by a different physician under FR Civ P 35. While the plaintiff was willing to undergo reexamination by the same doctor who had conducted the IME two years earlier, he argued that an examination by a second physician was unfair and would allow the defendant “to obtain ‘an advantage in the Medical testimony.’ ” Id. at 309. The court granted the defendant’s request for another IME, reasoning that:
The fact that plaintiff has, in another state two years ago, been subjected to a previous examination of the same condition in another case is no bar to the granting of a second examination. Rule 35 does not limit the number of examinations. Even when an examination has been previously ordered in the same case, a subsequent examination may be ordered if the Court deems it necessary.. .. This [proposed] examination should not result in any eviden-tiary prejudice to the plaintiff when any cumulative evidence may be the subject of objection, comment, or both, by the plaintiff at the trial. [Id. at 309 (citation omitted).]
In Peters v Nelson, 153 FRD 635 (ND Iowa, 1994), the plaintiff sued the defendants, alleging intentional torts and negligence related to mental injuries suffered from child abuse. In the course of discovery, the plaintiff disclosed her medical expert, a licensed psychologist, and provided the defendants with a copy of the evalúa
In granting the defendants’ request for a second IME, the trial court noted that while Rule 35 required showing good cause, the ultimate decision to order an examination, as well as which expert conducts the examination, was in the discretion of the trial court. But, the rule also did not place a limit on the number of examinations. Id. at 637, 639. Rather, “[e]ach request for an independent medical examination must turn on its own facts, and the number of examinations to which a party may be subjected depends solely upon the circumstances underlying the request. Even when an examination has been previously ordered in the same case, a subsequent examination may be ordered if the court deems it necessary.” Id. at 637-638. The trial court also noted that while “needlessly duplicative, cumulative, or invasive” examinations are generally not permitted, in this case, good cause to order a second IME existed because the plaintiff had placed her mental condition in controversy, there was no evidence of expert witness shopping, and the second examination was not duplicative because it was a different evaluation by a different expert who evaluated the plaintiffs alleged mental injuries. Id. at 638-639.
We conclude that the trial court abused its discretion by denying defendants’ request for an IME by a doctor
Just as importantly, the trial court’s reasoning—that allowing the examinations would be overly burdensome and place plaintiff at an unfair disadvantage at trial— does not support its conclusion. As observed by the Lewis court, plaintiffs concern about restricting the evidence presented to the jury can be addressed through motions in limine, objections, and by limiting the presentation of cumulative evidence at trial, Lewis, 49 FRD at 309, without deterring discovery. There is also a ceiling on the number of expert witnesses that a party can call at trial. See MCL 600.2164(2). Hence, precluding defendants from obtaining IMEs of plaintiff by their own expert medical physicians was not sup
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
No costs to either party. MCR 7.219(A).
BOONSTRA, J., concurred with MURRAY, J.
Notes
The AAA litigation was settled and dismissed in April 2012.
In the context of no-fault benefits, “good cause” under MCL 500.3159 for a trial court to limit mental or physical examinations in a dispute “may only be established by a particular and specific demonstration of fact, as distinguished from stereotyped and eonclusory statements.” Muci,
Dissenting Opinion
(dissenting). On appeal, the majority concludes that the trial court abused its discretion when it determined that defendants, K.A.M. Transport, Inc., M & Y Express, Inc., and Aly Mohamed Maarouf, had not established grounds for subjecting plaintiff Karen Burris to additional invasive medical examinations and, on that basis, denied defendants’ motion to compel Burris to submit to the requested examinations. Under the facts of this case, I cannot agree that the trial court abused its discretion. Therefore, I must respectfully dissent.
Our Supreme Court has long recognized that Michigan courts have the discretion to direct a party to submit to examination when the party’s injuries are at issue. See Logan v Agricultural Society of Lenawee Co,
The modern discovery practice has its origins with GCR 1963, 311.1, which was modeled on Fed R Civ P 35. See 2 Honigman & Hawkins, Mich Court Rules Annotated (2d ed), p 207, comment 3 (noting that Rule 311 was “written in the language” of Fed R Civ P 35). Although the Supreme Court expanded the availability of physical and mental examinations as a discovery tool with the adoption of GCR 1963, 311.1, see 2 Honigman, p 207, it also provided limitations designed to protect litigants from abusive discovery practices. Specifically, GCR 1963, 311.1 provided that a party could only be compelled to submit to an examination by order and then only if the party’s physical or mental condition was “in controversy” and the moving party showed “good cause” for the examination. The rule also clarified that the trial court had the discretion to impose reasonable restrictions on the conduct of the examination. Id. By adopting this rule, our Supreme Court entrusted trial courts with the discretion—and the duty—to carefully balance a party’s right to be free from abusive or excessive invasions of privacy with the opposing party’s right to seek the truth through reasonable discovery. And these limitations on the unfettered use of physical and mental examinations remain materially unchanged in the current rule. See MCR 2.311(A).
Under MCR 2.311(A), a trial court may order—but is not required to order—a party “to submit to a physical or mental or blood examination.” However, the trial court’s authority to order a party to submit to an examination is not unlimited. The trial court may only make such an order when the party’s “mental or
Here, although the basis for the trial court’s decision is not entirely clear, it appears that the trial court determined that defendants did not establish good cause. Therefore, I shall first address whether defendants established good cause sufficient to trigger the trial court’s discretion to order Burris to submit to further examination. Because Michigan’s former and current court rule was patterned after Fed R Civ P 35, Michigan courts have turned to federal authorities for guidance.
In Schlagenhauf, the Court noted that although trial courts have the inherent authority to limit discovery so as to prevent bad faith use or undue annoyance, embarrassment, or oppression,
In examining what will constitute good cause, the Court in Schlagenhauf stated that there are “situations where the pleadings alone are sufficient to” establish good cause, such as where a plaintiff in a negligence action asserts a mental or physical injury. Id. at 119. However, it did not frame that statement as an absolute rule—that is, it did not provide that a trial court must, as a matter of course, determine that a defendant has good cause for conducting a physical or mental examination in a negligence action where the plaintiff has alleged a physical or mental injury. Rather, the Court explained that the motion must be evaluated in light of
In this case, rather than rely on the extensive medical records already available to defendants, defendants’ lawyer scheduled Burris for so-called “independent medical examinations” with three physicians: one specializing in physical medicine and rehabilitation, one specializing in psychiatry, and one specializing in neu-ropsychology. Defendants’ lawyer did this without first obtaining a stipulation from Burris’ lawyer and without moving for permission from the trial court.
On December 20, 2010, Burris’ lawyer rejected defendants’ lawyer’s attempt to unilaterally schedule these examinations without any restrictions:
You have requested three defense medical evaluations to evaluate my client. As previously indicated, my position is that you would be entitled to your own, but not also the PIP IME completed by my client within the same specialty. I will not get into the specifics ....
Additionally, you have requested an evaluation with Dr. Benedek and I have requested that the same be videotaped. I discussed these reasons with Mr. Davis.
After Burris’ lawyer’s refusal, defendants filed a motion to compel the examinations under MCR 2.311(A). In response, Burris’ lawyer pointed out that defendants’ own no-fault carrier had already submitted Burris to five separate examinations, including one by a physical medicine and rehabilitation physician, and one by a neuropsychologist, and that their
At the hearing, defendants’ lawyer responded to Burris’ objections by noting that Burris had a list “of some 25 doctors” that might be called to testify. Defendants’ lawyer also asserted that defendants “have the right to pick our experts.” Defendants’ lawyer noted too that the examinations from the no-fault case were older.
In denying defendants’ motion, the trial court explained that defendants had already received adequate discovery on Burris’ medical condition and did not need to subject Burris to further examinations:
It appears that at least five independent medical examinations have already been conducted plus the other medical [records] involved in this case. It seems to me that that should be sufficient for all of the parties on the Defense*500 side. [Thus], any additional examinations appear to be overburdensome and really puts the Plaintiff [at] an unfair disadvantage.
I conclude that the trial court properly denied the motion because defendants failed to show good cause for the requested examinations. The record shows that they already had the reports from examinations conducted by five doctors, which included a physical medicine and rehabilitation physician and a neuropsychologist. They also had Burris’ own medical records. Aside from baldly asserting a supposed right to pick their own experts and an oblique reference to the time elapsed since the last examinations, defendants failed to state why they needed these specific examinations by these specific experts. Schlagenhauf,
Even if defendants minimally established good cause, the trial court still had the authority to deny the motion or grant it on a limited basis depending on the facts unique to the case. See MCR 2.311(A). Here, the trial court determined that defendants had adequate discovery on the disputed evidence and the ability to call the experts who had conducted the original examinations. Moreover, following the trial court’s original order denying defendants’ request for the examinations, the trial court entered an order compelling Burris to undergo an independent neuropsychological examination because the neuropsychologist from the original no-fault lawsuit had died. Consequently, the record shows that the trial court took reasonable steps to balance
On this record, I cannot conclude that the trial court’s decision to deny the motion fell outside the range of reasonable and principled outcomes. Smith v Khouri,
For these reasons, I would affirm.
The record in this case illustrates what I perceive to be a long-abused practice that is clearly prohibited under MCR 2.311(A): the scheduling of medical examinations without first moving for permission and demonstrating good cause.
Michigan courts may rely on federal authorities that interpret analogous provisions of the federal rules. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc,
Michigan courts have a similar authority. See MCR 2.302(C).