United States District Court, D. Arizona
MOTION TO COMPEL RULE 35 EXAMINATION
Russel Holland United States District Judge.
Wacker Neuson Sales Americas moves pursuant to Rule 35(a)(2),
Federal Rules of Civil Procedure, for an independent medical
examination (“IME”) of plaintiff Antonio Meza.
The motion is opposed. Oral argument has been requested but
is not deemed necessary.
do not oppose the appropriateness of an IME of plaintiff
Antonio Meza. The parties do disagree as to three matters:
(1) That an audio recording of plaintiff's examination be
(2) That plaintiff's legal guardian, Dora Meza, be
present during psychological testing; and
(3) That Dora Meza be present at the examination to provide
English/- Spanish translation, plaintiff Antonio Meza being a
responding to defendant's motion, plaintiffs make
reference to Arizona Civil Rule 35(c). The scheduling of an
IME is a procedural matter to which the federal rules have
application. The court declines to have reference to the
state court rule in this matter.
ruling upon the instant motion, the court has had reference
to the declaration of defendant's proposed examiner, Dr.
Christopher Nicholls, Ph.D. Dr. Nicholls is a clinical
neuropsychologist with a degree in clinical psychology. Dr.
Nicholls recommends that, consistent with the National
Academy of Neuropsychology and the American Academy of
Clinical Psychology policy, third parties should not be
present during the administration of psychological
testing. Dr. Nicholls opines that plaintiff's
seizures are well controlled by medication and that his
office staff are trained in seizure first aid if
needed. Finally, Dr. Nicholls objects to the use
of recording devices, explaining that use of such equipment
risks invalidating neuropsychological evaluations. He states
that his policy against recording is consistent with National
Academy of Neuropsychology and American Academy of Clinical
court is not persuaded by the affidavit of plaintiffs'
do not argue that a member of their legal staff should be
present for the examination. However, plaintiffs argue that
the examination should be audio recorded. The concern here is
that Mr. Meza will be unable to relate to his attorneys what
takes place during the IME.
Shepard's Federal Practice Procedure Series, we
The examination should be conducted in accordance with
current medical practice in the diagnosis of similar cases
not involving litigation, and should cover all claims of
injury made by the plaintiff. The examiner may employ the
assistance of other specialists, technicians, and assistants
as may necessarily be required in the judgment of the
examiner in light of the examinee's complaints. Such
other persons may be designated to assist as would be
required in a similar examination for diagnosis in the
ordinary course of medical practice. The person examined has
no right to have the examination tape recorded.
Shepard's Federal Practice Procedure Series, 1
Discovery Proceedings in Federal Court § 18:07, 339
(3d ed. 1995) (citations omitted). For the proposition that
there is no right to have the examination tape recorded,
defendant (as well as the quoted text) relies upon Tomlin
v. Holecek, 150 F.R.D. 628 (D. Minn. 1993). See also
Meixing Ren v. Phoenix Satellite Television (US),
Inc., 309 F.R.D. 34, 36 (D.D.C. 2015) (“typical
procedure is not to create a recording of the
well crafted decision, the court in Tomlin, among
other reasons, relies upon the same proposition as Dr.
Nicholls: “to require a recording of Dr. Aletky's
interview would potentiate toward ...