Must a Rule 35 Examiner be “Independent?”

Rule 35 examinations are commonly called “independent medical examinations.” I do not use this term because it usually does nothing but provoke a fight. I simply call it a Rule 35 exam or examiner. Still, a significant proportion of attorneys cling to this terminology. As a result, some local plaintiff’s attorneys have argued for years that Derek Duke, M.D. is not “independent” like Rule 35 supposedly requires. He is also accused bias against aggressive treatment or prone to diagnosing secondary gain motives. As full disclosure, I cannot remember actually retaining Dr. Duke before for one of my files, but someone in my firm probably has at one point or another.

My response to this argument would have been two fold. First, practicing medicine is an art, just like practicing law. There will be divergent opinions about the appropriateness and necessity of any given course of action. In medicine there will be surgeons who always recommend surgery as opposed to surgeons who recommend it far less. In the context of a personal injury case, plaintiffs often gravitate to the more aggressive treatment and defendants to the more conservative treatment. Dr. Duke fits that mold. Second, if a party believes an opposing expert is biased, cross-examination at trial is the best method to address it. I did not think any of this was blog-worthy.

Then I started hearing of orders where local courts actually excluded Dr. Duke as “biased.” The February 23, 2015 report and recommendations in A-14-699470-C is one. More full disclosure, I have not read any of the briefing or exhibits for this case or any others discussed in this post. The order starts by citing what it concluded were examples of bias against personal injury plaintiffs. In reading them though, it seems more like a conservative physician noting potential inconsistencies in stories as opposed to liberal physicians who believe anything a personal injury plaintiff says without question. DC Bulla’s hand-edited conclusion was:

Based on these opinions, among others, Dr. Duke demonstrates his bias against personal injury plaintiffs, which supports that he cannot be independent and objective in his evaluation of personal injury litigants pursuant to NRCP 35. This does not mean, however, that Dr. Duke is disqualified as a retained expert in this case, only that under the facts and circumstances presented in this case that he cannot perform a Rule 35 exam on this Plaintiff.

(emphasis in original).

The order cited no controlling authority. It cited only Pham v. Wal-Mart Stores, Inc., 2:11-cv-01148, 2012 U.S. Dist. LEXIS 73636, 2012 WL 1957987 (D. Nev. May 29, 2012) as persuasive authority. There a plaintiff moved to preclude Andrew Cash, M.D. from performing a Rule 35 examination, arguing a similar “bias.”

As a general rule, the moving party is permitted to select the physician who will conduct the Rule 35 examination. The court is not bound by defendant’s selection and may reject the chosen physician if he or she is unqualified. “Generally, however, courts have rejected efforts by plaintiffs to disqualify a physician based upon allegations of bias when those allegations are based on the fact that the physician generally is retained by the defense side of a lawsuit.”

Id. (quoting Lunsford v. Union Pacific R.R. Co., 2011 U.S. Dist. LEXIS 70226, 2011 WL 2559839 (E.D.Ark. 2011)) (citing McKitis v. Defazio, 187 F.R.D. 225, 227—28 (D.Md. 1999; Douponce v. Drake, 183 F.R.D. 565, 566 (D.Colo.1998); Duncan v. Upjohn Co., 155 F.R.D. 23, 26 (D.Conn.1994); Great W. Life Assur. Co. v. Levithan, 153 F.R.D. 74, 77 (E.D.Pa.1994); Powell v. United States, 149 F.R.D. 122, 124 (E.D.Va.1993); Looney v. Nat’l R.R. Passenger Corp., 142 F.R.D. 264, 265 (D.Mass.1992).

Pham also noted

[i]t is not improper or unusual, however, for an examining physician to evaluate and comment on the credibility of the examinee’s subjective complaints or to recognize the possibility of ulterior motives for subjective complaints which, in the opinion of the physician, are not supported by the objective medical findings. It is also not improper to provide the examining physician with information relevant to the condition that is the subject of the examination, including health care records, or discovery responses and deposition testimony. The physician’s consideration of such information, as well as the reasonableness and fairness of his opinions, are all subject to cross-examination and attack at trial.

Id. Presumably the next line is what DC Bulla found persuasive. “A physician who engages in a pattern or practice of providing improper, inflammatory opinions may justify an order barring him from performing a medical examination pursuant to Rule 35.” This sentence was not accompanied by a citation to any authority, giving me concern about how much weight Pham should actually carry. Regardless, Dr. Cash was allowed to perform a Rule 35 examination.

Buoyed by this ruling, and it seems others, I now routinely hear about motions to exclude Dr. Duke as “biased.” Hernandez v. Vanveen, 2:14-cv-01493, 2015 U.S. Dist. LEXIS 60683 (D. Nev. May 8, 2015) is one. Plaintiff argued “Duke lacks independence and has a demonstrated practice of being unfairly biased and prejudiced against plaintiffs. … Plaintiff also attaches several exhibits purporting to show that Duke has been rebuked, admonished, and stricken several times in Nevada state court.” Plaintiff argued a Rule 35 examiner is required to be “independent” as opposed to a Rule 26 expert.

The court agreed “with the general proposition cited by Plaintiff that a Rule 35 examiner should conduct an examination in as non-adversarial a manner as possible.” Id. However, the motion was denied. “Though commonly referred to as an ‘independent medical examination’ (IME), there is nothing in the rule requiring the examiner to be ‘independent’ or unconnected to an adverse party. Indeed, ‘Rule 35 [examinations] often arise in the context of developing expert testimony for trial with the expert witnesses then subject to the discovery obligations of Rules 26 and 30.'” Id.(quoting Lopez v. City of Imperial, 2014 U.S. Dist. LEXIS 7291, 2014 WL 232271 (S.D. Cal.)).

The primary basis for the decision, however, was the timing of the motion. It occurred after the Rule 35 examination occurred and the resulting report issued.

Although aware of the prior events calling into question Duke’s suitability, Plaintiff waited until after Defendants’ chosen Rule 35 examiner conducted the exam and issued his report to challenge the examiner’s suitability based on improper bias and prejudice. The challenge should have been made before the examination. Had it been, the Court would have considered whether Duke was suitable to conduct the examination in the first instance.

Still, MJ Hoffman gave hints about the “bias” argument. He noted McKitis v. Defazio, 187 F.R.D. 225 (D. Md. 1999) where a similar objection was entered before the examination occurred. The objection was overruled because the “bias” objection went to credibility, not qualifications. Plaintiff could depose and cross-examine the Rule 35 examiner at trial on these points. However, this did not disqualify the physician from performing an examination.

I think MJ Hoffman’s analysis is closer to the mark than DC Bulla. The words “independent” and “objective” do not appear anywhere in Rule 35. Although the examination should be non-adversarial, this does not mean it does equate to “independence.” I credit DC Bulla, however, for drafting a narrow ruling. Dr. Duke could still serve as a retained expert, but was not allowed to perform a Rule 35 examination. The local rumor mill had expanded that ruling greatly but, as usual, was inaccurate. For those who hire Dr. Duke, I probably would not bother requesting a Rule 35 examination for the time being or at least be prepared to spend a lot of time and money fighting that issue, likely resulting in a petition for a writ. Instead, he may still be used as a retained expert and, if no Rule 35 examination is requested, I do not see how the order barring him from performing an examination is admissible at trial. Still, I suspect this is not the end of this story.