Posted: August 29, 2016
Rules of Civil Procedure – Comment Period Closed October 13, 2016
Rule 034 Production of documents and things and entry upon land for inspection and other purposes. Amend. The 2016 amendments to Rule 34(b)(2) adopt 1) the specificity requirement in the 2015 amendments to Federal Rule of Civil Procedure 34(b)(2)(B), 2) a portion of Federal Rule 34(b)(2)(C) dealing with the basis for an objection to production, and 3) some clarifying language from the federal note.
Rule 035 Physical and mental examination of persons. Amend. The 2016 amendments to Rule 35 clarify when there is overlap between a Rule 26(a)(4) expert report and when there is not. It also provides a 28-day time frame in which the party requesting the Rule 35 examination must disclose the report to the person being examined.
Rule 35 (b) Report.
The revised rule provides that “The party requesting the examination must disclose a detailed written report of the examiner, within 28 days after the examination, . . . .”
This language does not specify to whom (e.g. subject of the examination; opposing counsel; the court) the report is to be disclosed. It would seem appropriate in making these revisions, that this specificity is added.
The requirement that the Rule 35 physician produce a report within 28 days is not realistic in light of practical experience. The vast majority of physicians willing to perform such exams have full time practices and often use outside vendors to transcribe the report. Rarely is a physician able to produce the report within 30 days. 60 days would be preferred.
It also important to note the Rule 35 exam provides the defense with its only opportunity to medically challenge causation, treatment and prognosis. The rules continued implementations of requirements has placed a chilling effect on the number of physicians willing to perform Rule 35 exams. From the quibbling over semantics regarding the naming of the examination, to the recording of the examination and now to the time limit to produce the report, appears all directed in limiting the use of Rule 35 exams. Has the committee reviewed or experienced inequities in the current use of Rule 35 exams? In the personal injury arena, the plaintiff has potentially unlimited access to choosing his/her physician. The plaintiff may chose as may physicians as wanted. The defense in personal injury cases is now limited to a handful of physicians willing to perform the exams based primarily on the limitations imposed by the rules.
Is the committee aware that many plaintiffs are being instructed by their attorneys not to fill out any paper work requested by the Rule 35 examiner? Plaintiffs are also instructed not to give any oral history even though the exams are being recorded. If the court orders the exam, shouldn’t the plaintiff be required to cooperate? Should that be addressed in the rule? Who is requesting the changes to be made and why? I try as many personal cases as anyone in the state and the current (and former) Rule 35 seems to work just fine. I doubt any of the district court judges who are trying the personal injury cases would disagree.
Bottom line, please reconsider enlarging the time to produce the report.
I respectfully disagree with the notion that most plaintiff attorneys are interfering with the defense Rule 35 exam. Some defense lawyers also use the Rule 35 process in ways I feel is unfair .However, I will not go into detail as that is not the issue presented for comment.
On the merits of the Rule change, I feel that whatever the time limit is for reports, it would be preferable to have only one report. My experience in over 30 years in practice leads me to believe that the proposed amendment to the rule to allow for a second report to supplement the first will likely result in the first report being cursory and unhelpful. I believe it would be better (and simpler) to allow 28 days for the report , but allow defense counsel to seek an extension of up to 14 days upon motion and a declaration from the Rule 35 examiner explaining why more time is needed.
Rule 34:
Replace “shall” with “must” in lines 15, 16, 19, 20 (2x), 26, 31, and 32.
There should be a requirement that the party videotaping the examination must produce a copy of an unedited copy of the video, and a corresponding 28-day time frame in which the party videotaping the examination is required to disclose a copy of the video. I have a current case in which opposing counsel has refused to produce the video and a motion to compel will be necessary. A provision in the rule addressing and clarifying this requirement will be very helpful to all parties in understanding the duty to produce the video.
Rule 34
In the following sentence of the proposed amendment to subparagraph (b)(2), there is no previous mention of “the search”: “An objection that states the limits that have controlled the search qualifies as a statement that the items have been withheld.”
The 28 day written report requirement is not practical or realistic as it relates to the proposed change to Rule 35. Rule 35 examinations now usually occurring during the end of fact discovery after the parties have obtained the medical records to avoid duplicate review of records and provide the examiner with all relevant information. The practical effect of this type of mandatory requirement is physicians, especially those who maintain an active medical practice, simply will no longer perform Rule 35 examinations. I struggle to see why such a short time frame is being proposed. If there is a time frame, a bare minimum of 60 days is essential.
To illustrate, I recently had an instance where a expert was going on vacation for 2.5 weeks after the examination. He was able to do the examination, but clearly there is no way he could have done the report within 28 days.
When comparing this to the 28 day requirement in Rule 26, that rule is seldom followed as it relates to depositions and it is challenging with respect to a report election. Thankfully I have had the good fortune to work with colleagues who for the most part are willing to reciprocate reasonable extensions with Rule 26. There are too many variables to put this type of a strict time frame for report production on Rule 35.
The biggest issue with former URCP Rule 35 is that it clearly indicated that a report had to be generated and be provided to the party being examined, but was silent as to when said report had to be provided. This caused gamesmanship and strategic calendaring to not have to provide the report until a party designated its experts. 28 days seems appropriate to encourage prompt turn around on these reports. If circumstances require an extension, the parties are able to typically work this out without court involvement.
The right to this report is due to the highly invasive nature of a forced physical examination of a party and personal privacy rights. Many on the defense bar would argue that the plaintiff foregoes those rights when filing an action for personal injury, but a thorough review of our nation’s case law and a simple read of our constitution on this subject defeat these arguments handily.
My biggest complaint regarding the current proposed rule is this new concept that allows one report to be provided and then a second “clean up” report be written at the time expert designations are required, if a report is elected in lieu of a deposition. The proposed rule suggests that the initial report should include the “type of content and observations that would be included in a medical record generated by a competent medical professional following an examination of a patient”, however this cannot be accomplished due to the very fact that a doctor/patient relationship isn’t formed in a URCP Rule 35 exam. In fact, all Rule 35 examiners clearly state that no doctor/patient relationship has been formed. Because the same doctor/patient relationship doesn’t exist, and therefore the same concerns aren’t in play, it is a fiction to purport to require the same from a Rule 35 examiner.
The initial report should be final report, absent addendum reports, at the time of expert designations. There is no need for a Rule 35 examiner to be able to write a second “clean up” report.
As written, it appears that someone on the defense bar closely linked with the insurance industry has added some very favorable pro-insurance/pro-defense language to URCP Rule 35. If this proposal stemmed from recommendations from a defense attorney, sitting on the rules committee, who is in-house counsel for a major insurance company, I would request that the rules committee more fully analyze this major change from former URCP Rule 35.
Once again, the only issue that needed to be addressed in URCP Rule 35 was the timing of when the report needed to be produced.
I agree with Ms. Turner and Mr. Joyce that a 28 day deadline for the disclosure of the report is unworkable for many physicians and will result in further limiting of physicians willing to do the reports. I also think that the creation of two different reports will be problematic and will likely result in disputes over whether the second report inappropriately adds information that should have been disclosed in the initial report. I think one report is preferable and a 60 day deadline is more workable.
Rule 35 – The 28 day deadline for providing a written report from an examining physician is not realistic. I agree that 60 days is a more reasonable time based on my experience which is longer than I want to put in writing.
I too think the 28 day requirement for a rule 35 report is a bad idea. It is tough to find physicians willing to get involved in the legal arena and this is just one more headache they have to deal with. It seems this is a very harsh fix to a non-existent problem. The IME reports are almost always given before experts are disclosed and disclosed again when complying with rule 26 which triggers the demand for a deposition if desired. The new requirement just creates one more trap for attorneys and Doctors.
The time for the filing of the report is too short. In addition, a problem encountered is that the plaintiff will have an exam done often after the initiation of litigation and defense counsel has no want of knowing it has been done, (work product privilege). There are no similar requirements placed on the plaintiff for an expert exam.
In the Comments it says that the doctor, in his first report, only has to give what would what would normally be found in a medical record until after the election. What is normal is pretty vague and subjective, although I would have to say that most medical records are very short and brief, and really don’t say much. this may make it difficult to make an informed election. In addition, seeing as one of the main purposes of the new Rule 26 was to do away with unnecessary discovery, it would seem that the more detailed the first report is, the greater likelihood that counsel will simply elect not to do any further discovery at all. However, with the way the comments are written, it only encourages additional discovery.
I think the change in Rule 34 will be helpful. It should obviate the problem of having to confer to find out if objections make any difference to the production. Requiring specificity in the basis of objections may reduce discovery conflict and speed production.
Establishing a requirement of 28 days after an examination shifts the burden of proof between the parties. The report should be required to be produced when an election for a report is made or at the earliest at the Rule 26 expert disclosure. Although plaintiff generally has the burden of proof, (burden to prove injuries and that they are causally related to the event claimed) this will require defendant to complete their discovery and disclose their evidence before plaintiff has disclosed their evidence to establish a prima facie case. So, rather than defendant defending claims established by plaintiff’s evidence, defendant will be required to affirmatively assert defenses that may or may not be needed in a particular case. Plaintiff has up to 4 years to prepare their case and obtain evidence to prove their case but leave defendant with months to mount a defense.
Retained medical experts on both sides should be treated equal, there is not a justifiable reason to treat physicians, hired by a defendant, as a different category. Retained physicians experts hired by plaintiffs should also be required to produce the same report at the designated time so that both parties are on a level-playing field, rather than giving the plaintiff’s side another tactical advantage. Plaintiff’s already have a built in advantage as they can doctor shop until they find a physician who gives an opinion favorable to their case. Defendant is generally only allowed one physician in each area of expertise.
Allowing plaintiff to obtain both a report and a deposition of an IME doctor is contrary to the stated goals of the 2011 amendments, namely reducing cost. If you allow both the report and the deposition, you have either increased the cost of litigation to the parties or eliminated the stated goal.
It is the opinion of the Utah Defense Lawyers Association that the changes to Rule 35 should read as follows:
UDLA Rule 35 Revision:
(b) Report. The party requesting the examination must disclose a detailed written encounter note of the examiner to be produced no later than 60 days after the examination setting out the examiner’s findings, including results of all tests performed at the Rule 35 examination, general findings from the Rule 35 examination, and other matters that would routinely be included in an examination record generated by a medical professional. If the party requesting the examination wishes to call the examiner as an expert witness, the party must disclose the examiner as an expert in the time and manner as required by Rule 26(a)(4).
There is also a redline strike through version for those who would like a copy.
28 days to produce a report is unrealistic. I often times do not get the report from the doctor for up to 60 days. I would propose that the person requesting the examination should produce the report to the other side within 28 days of receipt of the report from the doctor. That would push the case along but also recognize the reality that doctors are outside vendors who do this in addition to their practice. If we continue to put restrictions on doctors then we run the risk of further reducing the number of doctors willing to even conduct the examination. This forces defense counsel to find doctors outside Utah–only further increasing costs.
As many others have said, a 28 day from the exam deadline is not practical. However much we as attorneys would like to insist doctors meet our deadlines, the realities of their practice mean this is a deadline that would be seldom met. I expect 28 days is a deadline that will either be routinely stipulated around or ignored, or will simply operate to deprive defendants of a medical expert. A longer deadline of 60 is more realistic. Requiring a shorter report that only contains exam findings helps to alleviate the problem and makes this more consistent with expert disclosures, but doesn’t help overall, as it will simply add another thing the doctor will have to comply with and creates more costs as they have to repeatedly look at the case.
In a more general sense, we often hear the claim that “real” practicing doctors are the ones would make the best expert, and decrying “professional” experts, a sentiment most attorney who retain doctors for these exams agree with. However, a real practicing doctor has to see normal patients regularly and frequently during the day to keep their business afloat. Rule 35 exams require the doctor to do a comprehensive exam, review records from other providers, often very voluminous records, as well as depositions and other discovery. Juggling this with a normal practice means it will take more time than attorneys wishing to shorten time would like. The changes that have been made to Rule 35 and the discovery rules in general have already made it more difficulty to get a medical doctor to do Rule 35 exams. Costs for these exams have increased as we are compelled to do the exams earlier and often requires in multiple addenda to reports as discovery is completed and new records arrive. Adding a short deadline to a process that already aggravates doctors will only drive more away from providing expert assistance. I think that our justice system would be better served by reaching out to the medical profession and working out ways to get more cooperation from other professionals, than to simply demand a shortened deadline.