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Meza v. Wacker Neuson Sales Americas, LLC

United States District Court, D. Arizona

September 12, 2018

Antonio Meza, et al., Plaintiffs,
v.
Wacker Neuson Sales Americas, LLC, et al., Defendants.

          MOTION TO COMPEL RULE 35 EXAMINATION [1]

          H. Russel Holland United States District Judge.

         Defendant 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.

         Plaintiffs 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 obtained;
(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 Spanish speaker.

         In 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.

         In ruling upon the instant motion, the court has had reference to the declaration of defendant's proposed examiner, Dr. Christopher Nicholls, Ph.D.[2] 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.[3] Dr. Nicholls opines that plaintiff's seizures are well controlled by medication[4] and that his office staff are trained in seizure first aid if needed.[5] 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 Psychology positions.[6]

         The court is not persuaded by the affidavit of plaintiffs' legal assistant.[7]

         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.

         In Shepard's Federal Practice Procedure Series, we read:

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 examination”).

         In a 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 ...


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