By Susan R. Shan
Rules of discovery allow for physical and mental examinations of the parties. See Ind. R. Trial Proc. 26(A)(4). These independent medical examinations (IMEs) are governed by Trial Rule 35(A), which provides that
[w]hen the mental or physical condition … of a party … is in controversy, the court … may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in his custody or legal control. The order … shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. Ind. R. Trial P. 35(A).
Approximately five years ago, attorneys began requiring video recordings of their clients’ IMEs. The burden this requirement placed on their opponents was immense since most doctors refused to be recorded. Because Trial Rule 35(A) is silent on the issue of video recordings, an increasing number of battles were being waged in the courtroom.
Generally, matters concerning discovery methods that the trial rules do not govern are matters for a trial court’s exercise of discretion. … A trial court may make “any order which justice requires to protect a party or person from the stated concern or condition.”
Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind. 1994) (quoting 3 William F. Harvey, Indiana Practice – Rules of Procedure Annotated § 26.20).
In Jacob, the Indiana Supreme Court, as a matter of first impression, addressed tape recordings of IMEs. The court held that “[i]n permitting the examination ordered in this case to be recorded, the trial court properly exercised its discretion.” Id. at 1013. Thus, whether an IME can be recorded is an issue that must be decided by the trial court on a case-by-case basis.
“Certainly, Indiana law allows a videotaping of an IME, but to say something is allowed and within the discretion of the court is far different from saying that the law requires the videotaping.” Frazier v. Nash-Finch Co., No. 3:10-CV-45-RM-CAN, 2011 U.S. Dist. LEXIS 8146, at *4 (N.D. Ind. Jan. 25, 2011) (internal citation omitted). In fact, the Indiana Court of Appeals addressed this very issue in Old Indiana L.L.C. v. Montano, 732 N.E.2d 179, 185 (Ind. Ct. App. 2000): “Because tape recording is allowed at the trial court’s discretion and not as a matter of right or entitlement … we review the decision for an abuse of discretion. We conclude that the trial court did not abuse its discretion by disallowing the tape recording.”
I. Federal Courts
Federal Rule of Civil Procedure 35(a) is nearly identical to Indiana Trial Rule 35(A), and federal case law serves as persuasive authority regarding this issue.
“[T]he majority of federal courts have rejected the notion that a third party should be allowed, even indirectly through a recording device, to observe a Rule 35 examination.” Holland v. United States, 182 F.R.D. 493, 495 (D.S.C. 1998); see also 8B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2236 (3d ed. 2010).
“Federal courts generally have adopted the philosophy that such an examination should be objective and scientific. Accordingly, they have been wary of any external presence that has the potential to insert the adversary process into the examination room.” Id. (citing Romano v. II Morrow, Inc., 173 F.R.D. 271, 274 (D. Or. 1997) (“[T]he presence of the observer interjects an adversarial, partisan atmosphere into what should be otherwise a wholly objective inquiry.”)).
In Indiana, “[t]he [district] court begins with a presumption that the ‘expert retained to conduct the examination is professional, independent and objective, as opposed to an agent or advocate for the side that retained him.’” Heath v. Isenegger, No. 2:10-CV-175, 2011 U.S. Dist. LEXIS 72101, at *4-5 (N.D. Ind. July 1, 2011) (quoting Scheriff v. C.B. Fleet Co., No. 07-C-873, 2008 WL 2434184, at *2 (E.D. Wis. June 16, 2008) (considering, as one factor in denying leave to videotape a medical examination, that absence of any indicia of unfairness or reason to assume the examining doctor would take advantage of the plaintiff)). “Moreover, [a doctor] is bound by medical ethics to use his medical judgment to evaluate Plaintiff.” J.H. v. Sch. Town of Munster, 38 F. Supp. 3d 986, 989 (N.D. Ind. 2014) (citing Haymer v. Countrywide Bank, FSB, No. 10 C 5910, 2013 WL 657662, at *7 (N.D. Ill. 2013)).
“In light of this presumption and other safeguards ensuring reliability, videotaping is unnecessary,” Heath, 2011 U.S. Dist. LEXIS 72101, at *7, and “medical examinations generally are not videotaped.” Id. at *5 (citing Newman v. Gaetz, No. 08 C 4240, 2010 WL 4928868, at *1 (N.D. Ill. Nov. 29, 2010) (“Under the ‘normal procedure’ there is no video camera or other recording device at the examination.”)).
[T]he court may order an independent medical examination to be videotaped upon a showing of good cause by the party to be examined. To succeed in showing good cause, the party requesting the video recording must explain why the video recording is necessary. It is not sufficient to presume bias or to show that the examined party will have difficulty remembering or communicating what occurred at the examination to his attorneys. Rather, the examined party must show some indicia of unreliability or explanation why the examining physician’s notes and report will be unreliable. Id. at *6-7 (internal citations omitted).
“Absent an adequate reason for compelling videotaping of the medical examination, the court finds that the safeguards imposed by the federal rules and procedures of this court advocate against prejudice and that videotaping is unnecessary.” Id. at *7-8.
II. Issues of Contention
In contrast to federal courts, “[s]tates have generally recognized that while a Rule 35 examination is ideally a purely scientific exercise, it is also, inevitably, another arena in which the litigation is joined.” Metro. Prop., 103 S.W.3d at 38. Our supreme court, likewise, believes
[t]he purpose of the examination is to further the litigation process. An opinion arrived at by the examiner is intended to aid the trier of fact in making a damages assessment. Statements made by the examinee are intended to aid the examiner in arriving at a proper opinion, and by necessity are material to such trial issues as proximate cause. It is inherent in such an important meeting that both examiner and examinee be permitted to choose whether or not to make written notes of the verbal exchange. It follows from this conclusion that both should as well be permitted to choose whether or not, in lieu of the laborious process of making notes, to openly record the verbal exchange by electronic means. Jacob, 639 N.E.2d at 1013.
Examinees argue that a “recording [i]s necessary to keep track of the actual words exchanged during the medical examination, in order to eliminate improper testimony before trial.” Id. Furthermore, they worry that the “examinations could be used as an informal discovery tool involving wide-ranging deposition without the protections afforded in formal discovery.” Id. Finally, they distrust the examining doctor because “[t]he defendants’ expert is being engaged to advance the interests of the defendants; clearly, the doctor cannot be considered a neutral in the case.” Id. at 1012.
In response, the doctors believe “[v]ideotaping may interfere with and disrupt the examination, and because the examining physician often will prepare his own notes and expert report, videotaping is normally unnecessary.” Heath, 2011 U.S. Dist. LEXIS 72101, at *5 (citing Newman, 2010 WL 4928868, at *1-2).
Courts also have taken into consideration an expert’s refusal to allow video taping of his examination. Furthermore, when the plaintiff’s physician’s examination was not recorded, it may be unfair to permit videotaping of the defendant’s physician’s examination. Id. (internal citations omitted).
In Frazier, defense counsel submitted an affidavit signed by the doctor “indicating that the presence of a videographer and video camera would disrupt and render unreliable the results of various psychological evaluations.” 2011 U.S. Dist. LEXIS 8146, at *5. Furthermore, in J.H., the doctor
provided a sworn affidavit stating that “[h]aving a third party present and/or video recording a session were not factors considered in establishing the normative standards of the test[s]” and that variations caused by the presence of a third party cannot be predicted in advance nor adjusted after the fact. He further states that video recording is disruptive to both the examiner and the examinee and affects how examinees portray themselves. 38 F. Supp. 3d at 989.
The court did not permit video recordings in either case.
However, even if the examinee may not record the IME, he is not left defenseless. “[The examinee] has mechanisms at his disposal to undermine, limit, or exclude evidence if the IME turns out to have been done improperly or produces doubtful results.” Frazier, 2011 U.S. Dist. LEXIS 8146, at *7. For example, “[a]fter reviewing the medical report required by Rule 35(b), the plaintiff has the right to take the deposition of [the doctor]. If it is determined that the doctor has questioned the plaintiff improperly, that evidence may be excluded at trial.” Wheat, 125 F.R.D. at 480.
III. Additional Experts’ Fees to Allow Video Recording
Assuming the trial court orders an IME to be recorded and the physician permits recording but charges an extra fee for the recording, the issue becomes which party is responsible for payment of that fee. Since the defendant requested the IME, the plaintiff believes the defendant should pay. However, the plaintiff incurred the extra fee by insisting on a recorded IME, so the defendant feels the plaintiff is responsible.
It appears that only state-court trial judges have encountered this issue thus far, and the results have varied. For example, in Taye v. Fisher, No. 29D01-1606-CT-5076, July 18, 2017 Order, at 2, the court ordered the plaintiff to pay the extra fee. “The Court notes that this ruling does not foreclose the Plaintiff from asking the Court after the deposition to reassess such cost if there exists evidence that supports their previous argument that such additional fee was unnecessary, unreasonable, or overly burdensome.” Id.
On the other hand, the court ordered the defendant to bear the extra cost in Newby v. Herdrich Petroleum Corp., No. 49D14-1604-CT-014237, July 21, 2017 Order, at ¶ 7. The court in Richardson v. Perfect Seating, LLC, No. 06C01-1602-CT-0102, Jan. 3, 2018 Order, at ¶ 4, took an in-between approach by not requiring the plaintiff to pay the fee initially; “[h]owever, the Court will reconsider if [the doctor] can specifically justify the necessity of the fee.”
Ultimately, like most evidentiary issues, video recordings of IMEs are subject to the discretion of the trial court. Since the Jacob and Old Indiana decisions were published, neither the Court of Appeals nor the Indiana Supreme Court has offered much guidance. However, more recent cases from the Northern District of Indiana have already demonstrated the importance and weight of affidavits and can provide persuasive authority.•
Ms. Shan is an attorney in the Indianapolis office of Kightlinger & Gray and is a member of the DTCI. The opinions expressed in this article are those of the author.