Sanctions Ordered For Failure to Comply With Rule 35 Order

When a plaintiff refuses to comply with an order to submit to a medical examination under Rule 35 of the Tennessee Rules of Civil Procedure, the trial court may refuse to allow the plaintiff to introduce evidence of medical expenses at trial.

In Prewitt v. Brown, No. M2017-01420-COA-R3-CV (Tenn. Ct. App. April 30, 2018), plaintiff was injured in a car accident with defendant. Defendant admitted that he was at least partially at fault, but  “disputed the nature and extent of Plaintiff’s injuries.” After initial discovery, defendant “filed a Tenn. R. Civ. P. 35 motion for an Independent Medical Examination (IME) (sic),” which the trial court granted.

(Note: a Rule 35 examination is not an “independent medical examination” but rather an examination, usually of a plaintiff, by a doctor of an adversary’s choosing.  Calling such an examiner “independent” is untrue and unfair.  In the typical case, a fairer label would be “defense medical examination (“DME”).)

Defendant tried to coordinate with plaintiff to schedule the examination, but after receiving no response from plaintiff, defendant unilaterally set and provided notice of it. Plaintiff did not show up, and defendant incurred a $750 fee. Defendant filed a motion to compel the examination, which the trial court granted. After more attempts to coordinate with plaintiff were met with silence (including four letters listing the doctor’s availability), defendant filed a motion to dismiss the complaint. The trial court denied this motion, but instead “imposed discovery sanctions by prohibiting Plaintiff from offering any testimony or evidence at trial regarding medical damages, medical bills, or medical records related to future pain and suffering, future loss of enjoyment of life and/or permanent impairment.”

After a two-day jury trial, plaintiff was awarded $500 for past pain and suffering, and this appeal followed.

Plaintiff first argued that an examination was not appropriate in this case, but the Court of Appeals disagreed. The Court noted that “plaintiff placed her mental and physical condition in controversy when she alleged that she suffered pain and suffering, severe mental distress, and loss of enjoyment of life…and sought compensatory damages for all past, present, and future medical expenses.”

Plaintiff next argued that the trial court erred by imposing discovery sanctions on plaintiff. Plaintiff asserted that the trial court erred by not limiting the scope of the examination. The Court noted that while the examination should have been limited in scope, and that questions on the form went beyond the scope of what was relevant, plaintiff failed to make that argument to the trial court. The Court stated that “Plaintiff failed to effectually communicate her justifiable objections to the trial court by, at first, refusing to communicate with anyone, and later by filing a vague motion for a protective order that was devoid of a factual or legal justification”, and that “it was not the responsibility of the trial court to search for a meritorious basis if Plaintiff filed to articulate it.” Because an examination was ordered and plaintiff failed to communicate or cooperate in setting one up, the Court ruled that the discovery sanctions imposed here were appropriate. Accordingly, the verdict was affirmed.

The lesson of this case is clear—if an examination is ordered, plaintiffs must be communicative in the process of setting one up with clear and fair parameters. Further, if a plaintiff has objections to the scope of the examination, those need to be spelled out to the trial court, not vaguely referenced in a timely motion for protective order.