Aubuchon v. Tate Trucking, LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALLISON AUBUCHON, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 4:24CV189 HEA
)
TATE TRUCKING, LLC, and 	)
WENDIMU MITANO 	)
)
Defendants. 	)
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Rule 35
Physical Examination, [Doc. No. 58], and Plaintiff’s Motion for Protective
Order, . For the reasons set forth below, the Motion for Examination Is granted
and the Motion for Protective Order will be denied.
Facts and Background1
Plaintiff’s Petition alleges the following:
On February 24, 2022, Defendant Mitano, an employee of Defendant Tate
Trucking, while performing his duties on behalf of his employer, was driving
northbound on US Highway 61. Defendant Mitano caused his 2014 Freightliner
Corp Cascadia 125 to come into contact with the rear of another motorist on US
1 The recitation of facts is set forth for the sole purpose of this Opinion. It in no way relieves the
parties of the necessary proof of the facts in later proceedings.
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Highway 61. The force of this collision created a chain reaction involving multiple
motor vehicles, which ultimately caused a third party to collide with the rear of
Plaintiff’s 2016 Cadillac ATS.
The Petition sets out a claim for Negligence against Defendant Mitano,
Count I; Negligence Per Se under RSMo § 304.0171.1 against Defendant Mitano,
Count II; Negligence against Defendant Tate Trucking, Count III; Negligence Per
Se under RSMo § 304.0171.1, against Defendant Tate Trucking, Count IV;
Negligent Hiring against Tate Trucking, Count V; Negligent Retention against Tate
Trucking, Count VI; and Negligent Supervision against Tate Trucking, Count VII.
Defendants move to for a physical examination of Plaintiff pursuant to Rule
35 of the Federal Rules of Civil Procedure. Plaintiff moves for a protective order
regarding any physical examinations.
Legal Standard
Under Rule 35, a court has discretion to 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). In exercising its
discretion, a court may set terms and conditions for the examination. 7 Moore's
Federal Practice, § 35.05[4] (Matthew Bender 3d ed.). Rule 35(a)(2)(B) requires
the examination order to “specify the time, place, manner, conditions, and scope of
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the examination, as well as the person or persons who will perform it.” Fed. R. Civ.
P. 35(a)(2)(B).
Rule 26(c) provides authority for appropriate conditions upon the
examination. Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 624
(D. Kan. 1999). Upon a showing of good cause, the court “may make any order
which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). The party seeking a
protective order, however, has the burden to show good cause for it. Shannon v.
Ellis, No. 4:18-CV-00506 JAR, 2018 WL 4698783, at *1 (E.D. Mo. Oct. 1, 2018);
Hertenstein, 189 F.R.D. at 624 (citing Sentry Ins. v. Shivers, 164 F.R.D. 255, 256
(D. Kan. 1996) ).
Discussion
Plaintiff concedes Defendants are entitled to a physical examination of
Plaintiff. She does, however, seek a protective order which she proposes contains
limitations on the examining physician and allows for a recording of the exam
itself. Specifically, Plaintiff seeks a list of the tests to be performed on Plaintiff at
least fourteen days prior to the exam so Plaintiff and her doctor have the
opportunity to object. She also asks that the examination be limited to those parts
of her body which were allegedly injured in the accident. Further, she asks that the
examiner not ask Plaintiff to complete any lengthy questionnaires, or sign any
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documents at the exam; and that the examiner or Defendants’ counsel provide
Plaintiff’s Counsel any necessary paperwork to be filled out by Plaintiff ten (10)
days prior to the examination
Questions the physician must ask during an examination, and particularly
follow-up questions, cannot be determined in advance and therefore cannot
be restricted by the Court. See, e.g., Romano, 173 F.R.D. at 273 (court
refused to prohibit examining physician from taking oral medical history or
otherwise questioning plaintiff during examination); 7 Moore's Federal
Practice, § 35.05[4]. See also Goggins v. State Farm Mut. Auto. Ins. Co., No.
3:10-CV-00826-J-20JBT, 2011 WL 1660609, at *3 (M.D. Fla. May 3, 2011)
(“Defendant's examiner should, within reason, be able to inquire both orally
and in writing into Plaintiff's medical history as part of his examination.
Thus, Plaintiff must complete all reasonable paperwork and answer all
reasonable questions about her medical history in the context of her Rule 35
examination.”).
Gade v. State Farm Mut. Auto. Ins. Co., No. 5:14-CV-00048-CR, 2015 WL
12964613 (D. Vt. Jan. 2, 2015), is instructive. In Gade, plaintiff sought to
limit the scope of her examination to the medical conditions, part of the
body, and injuries in controversy, i.e., her cervical spine. The plaintiff also
requested that she not be asked to discuss her medical history relating to
parts of her body “not at issue or in controversy in this action.” Id. at *4. The
court denied plaintiff's motion for a protective order, explaining that during
Rule 35 examinations, “courts often allow routine procedures” and “a review
of medical history assists the doctor in his or her evaluation.” Id. at *4
(quoting Tarte, 249 F.R.D. at 860. “[F]or the court to intervene and limit the
type of examination an expert has indicated is necessary in order to analyze
plaintiff's claims would subvert the truth finding function inherent in Rule 35
examinations.” Id. (quoting Abdulwali v. Washington Metro Area Transit
Auth., 193 F.R.D. 10, 15 (D.D.C. 2000) ). The Gade court held that in
establishing plaintiff's overall health and the degree to which her alleged
conditions impact her life, it was permissible for the examining physician to
ask about her general health and her condition prior, during, and after the
accidents which she alleges caused her damages. However, the court also
ruled that plaintiff should not be examined or questioned regarding health
conditions “wholly unrelated to her lawsuit.” Id. at *5.
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The Court will therefore deny Plaintiff's motion for a protective order with
regard to these conditions; however, Plaintiff's examination should be
limited to the issues raised in his complaint.
Shannon v. Ellis, No. 4:18-CV-00506 JAR, 2018 WL 4698783, at *2–3 (E.D. Mo.
Oct. 1, 2018).
This Court agrees with Judge Ross’ well-reasoned analysis. Plaintiff has
presented nothing to establish that the Rule 35 examination should be limited as
presented in her Memorandum in Support of her Motion for Protective Order,
except with regard to the parts of her body which are allegedly effected.
Plaintiff also asks that she be allowed to record the examination with a small
hand-held audio recording device to “preserve a true and accurate record of the
information exchanged.”
Rule 35 explains precisely what the party or person examined is entitled to
upon request—“a copy of the examiner's report,” which “must be in writing and
must set out in detail the examiner's findings, including diagnoses, conclusions,
and the results of any tests.” Fed.R.Civ.P. 35(b)(1)–(2). Rule 35 does give courts
broad discretion to fashion (or not) conditions under which examinations must be
administered. Sanden v. Mayo Clinic, 495 F.2d 221, 225 (8th Cir. 1974); see
Fed.R.Civ. P. 35(a)(2)(B). But in the context of allowing a recording, most courts
discourage the practice absent a compelling reason. See, e.g., Durfee v. GPEX
Transp., Inc., No. 4:23-CV-04042-KES, 2024 WL 5074913, at *2–3 (D.S.D. Dec.
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11, 2024) (collecting cases);Tomlin v. Holecek, 150 F.R.D. 628, 631–34 (D. Minn.
1993); Holland v. United States, 182 F.R.D. 493, 495–96 (D.S.C. 1998) (collecting
cases); Petersen v. Rapid City, Pierre & E. R., Inc., No. 5:22-CV-5064, 2023 WL
6466199, at *4–5 (D.S.D. Oct. 4, 2023) (collecting cases). Principles underlying
this position include “preserv[ing] the equal footing of the parties,” ensuring the
authenticity of the examination results, and avoiding “the infusion of the adversary
process” into what should be a purely scientific endeavor. Tomlin, 150 F.R.D. at
631–34.
The requirement of a compelling reason for recording finds its basis in Rule
26. Petersen, 2023 WL 6466199, at *3–5. As the Petersen court explained, an IME
is simply one method of discovery. Id. at *3. And so, once relevance is established
for an IME, it becomes the burden of the party resisting discovery “to show why
the examination should not go forward in the manner noticed.” Id. at *3–4
(citations omitted).
Although there is authority for permitting third parties or recordings of Rule
35 examinations, the party seeking to have an observer present bears the burden of
demonstrating “good cause” for the request under Rule 26(b), Fed.R.Civ.P., as the
presence of a third party is not typically necessary or proper. Tarte v. United States,
249 F.R.D. 856, 859 (S.D. Fla. 2008) (citation omitted). Indeed, courts have held
that the presence of a third party or recording device, which is analyzed in the
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same way that the presence of an observer is considered, “subvert[s] the purpose of
Rule 35, which is to put both the plaintiff and defendant on an equal footing with
regard to evaluating the plaintiff's [medical] status.” Id. (quoting Favale v. Roman
Catholic Diocese of Bridgeport, 235 F.R.D. 553, 557 (D. Conn. 2006) ). See also
Romano v. II Morrow, Inc., 173 F.R.D. 271 (D. Or. 1997), where the court
articulated the reasons for prohibiting third parties at an examination:
[A]n observer, a court reporter, or recording device would constitute a
distraction during the examination and work to diminish the accuracy of the
process. [An observer could] potentially distract the examining [physician]
and examinee thereby compromising the results of the examination.
Moreover, the presence of the observer interjects an adversarial, partisan
atmosphere into what should be otherwise a wholly objective inquiry ...The
Court finds that the presence of the observer would lend a degree of
artificiality to the examination that would be inconsistent with the applicable
professional standard. Id. at 273-74 (quoting Shirsat v. Mutual Pharm. Co.,
169 F.R.D. 68, 70–71 (E.D. Pa. 1996) ).
Shannon v. Ellis, No. 4:18-CV-00506 JAR, 2018 WL 4698783, at *2 (E.D. Mo.
Oct. 1, 2018).
Conclusion
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants' Motion for Rule 35
Physical Examination, [Doc. No. 58], is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Protective Order
is DENIED, except to the extent that the physical examination will be limited
to the parts of Plaintiff’s body she claims were injured in the accident.
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IT IS FURTHER ORDERED that the parties shall meet within 7 days
from the date of this order and mutually agree on a time and place for Plaintiff’s
physical examination.
Dated this 28 th day of October, 2025.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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