§35.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§35.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Counsel should weigh several strategic and practical considerations before deciding whether to request an examination. Most importantly, counsel should be prepared to articulate why a particular examination is (or is not) necessary and why that necessity outweighs (or does not outweigh) the examined party's right to privacy.

(1) Selection of examiner, number and timing of examinations, location of examination, and expenses

Often, counsel agree on the details of a CR 35 examination without resorting to motion practice. Counsel should discuss and agree upon all aspects of the proposed examination before it occurs, however, so that no misunderstandings arise.

Because the party proposing a CR 35 examination does not have an absolute right to select the examiner, it is important to consider challenging the selection if appropriate. Unless there is proof of bias, unfairness, or inconvenience, the court will usually appoint the examiner selected by the moving party.

The number and timing of CR 35 examinations are often sources of conflict in personal injury cases. The rule does not specifically address these issues. The trial court has discretion, however, to determine time, place, and manner of the examination and to limit the scope or number of examinations.

In cases involving serious personal injury, the defense will seek examinations of the plaintiff that are current as of the time of trial. Earlier examinations may also be pursued for purposes of settlement evaluations.

Repeated examinations will probably be ordered if the condition of the examined party has changed dramatically over time. Counsel for the examined party should consider opposingrepeat examinations, however, if it appears they are sought not to evaluate a changing physical or mental condition but rather because of counsel's dissatisfaction with the initial report.

Prior personal injury protection (PIP) examinations of a claimant are protected by the work product doctrine and are thus discoverable only upon a showing of substantial need. Harris v. Drake, 152 Wn.2d 480, 486,99P.3d872 (2004). Notably, the court in Harris overruled Johnson v. McCay, 77 Wn.App. 603, 609, 893P.2d641 (1995), on the issue of whether defense counsel is entitled to discovery of a PIP examination report in a subsequent litigation against the PIP insured.

The location of the examination is almost always the examining physician's office. If that office is not within the jurisdiction where the action is filed or if the party undergoing the examination cannot travel, counsel should consider changing the location. If the party to be examined resides outside the jurisdiction where the action is filed, the inconvenience and cost of travel to the examination should be taken into consideration, particularly if more than one examination is sought. See McCloskey v. United Parcel Serv. Gen. Servs. Co., 171 F.R.D. 268, 270 (D. Or. 1997) (requesting party may have to pay travel expenses that pose an "undue hardship" upon the examined party or are the result of the requesting party's poor planning).

Frequently, the party examined will incur expenses in connection with the examination. Wage loss, travel and lodging expenses, and even attendant care may be necessary costs of a CR 35 examination. All these items should be brought to the court's attention when seeking an order for CR 35 examination. Typically, a plaintiff examinee must bear the cost of travel, as long as the examination is located within the forum plaintiff selected. McCloskey, 171F.R.D. at 270. But see Duncan v. Upjohn, 155 F.R.D. 23,25 (D. Conn. 1994) (ordering defendant to pay for plaintiff's limousine, meals, and other expenses). An exception to this general rule exists if the examined party will suffer "undue hardship," or if the expenses could have been avoided through better planning by the defendant. McCloskey, 171 F.R.D. at 270. In such cases, the defendant may be ordered to front the costs and the plaintiff required to repay them at the conclusion of the lawsuit. Id. If the examined party prevails, costs of the examination may also be considered in the computation of damages. Gavenda v. Orleans County, 114 F.R.D. 272, 275 (W.D.N.Y. 1996).

(2)Invasive testing

Some types of testing are obviously more invasive than others. In such cases, the party seeking the examination may be required to demonstrate a higher level of need to meet the "good cause" requirement. See, e.g., Bartolotta v. Delco Appliance Corp., 4 N.Y.S.2d 744 (N.Y. App. Div 1938) (concluding a barium meal examination was too invasive); Riss & Co. v. Galloway, 108 Colo. 93,94-96,114 P.2d 550 (1941) (denying motion for...