Objection to Independent Medical Examination Request

FULTON COUNTY STATE COURT

STATE OF GEORGIA

JENNIFER GARRISON,

Plaintiff,

vs.

MONTAG REALTY COMPANY, LLC d/b/a VERONA APARTMENTS, THE REALTY FUND III, L.P. and JOHN DOES 1-5,

Defendants.

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JURY TRIAL DEMANDED

CASE NUMBER: 04-VS-070909-C

PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTMONTAG REALTY COMPANY, LLC AND REALTY FUND'S MOTION TO REQUIRE PLAINTIFF TO ATTEND AN INDEPENDENT MEDICAL EXAMINATION (“IME”)

COMES NOW Plaintiff, JENNIFER GARRISON, and files her Brief in Opposition to Defendants MONTAG REALTY, LLC and REALTY FUND's Motion to Require Plaintiff to Attend an Independent Medical Examination (“IME”). Plaintiff shows the Court as follows:

PRELIMINARY STATEMENT

Defendants' motion to compel Plaintiff undergo an IME is untimely, unnecessary and unlawful.

Pending resolution of motions, Plaintiff is ready for trial in the present case. Discovery has been closed in this case for over seventeen (17) months. Since the case was filed nearly three years ago, Defendants have never sought any IME or asked for or sent notice to depose any of Plaintiffs’ medical providers. Even at this late date, Plaintiff has no objection to Defendants deposing Plaintiff's treating physician. Defendants possess all of Plaintiff's medical records related to his injuries in this case.

Defendants' proposed examination is with a doctor of its choosing, and therefore not an independent examination. Moreover, on the face of its motion, Defendants have fatally failed to provide information concerning the physician and the manner, conditions and scope of their requested examination.

Accordingly, Plaintiff objects to Defendants’ proposed independent medical examination and respectfully requests that Defendants’ Motion be DENIED.

ARGUMENT AND CITATION OF AUTHORITY

A. DEFENDANT’S MOTION SHOULD BE DENIED BECAUSE DISCOVERY IS CLOSED.

O.C.G.A. § 9-11-35 falls under Article 5 of the Civil Practice Act, entitled "Depositions and Discovery." As such, it is a discovery device.

Discovery in this case ended over seventeen (17) months ago. The Plaintiff is ready for trial, pending a hearing on any outstanding motions. Defendants' Motion is an attempt to re-open discovery for their exclusive benefit and delay the trial of the case.

In interpreting O.C.G.A. § 9-11-35, Georgia courts have long held that "the trial court should consider "the timeliness of the motion and the events leading up to it." (Metro. Life Ins. Co. v. Lehmann, 125 Ga. App. 539, 540 (188 S.E.2d 393) (1972). The present case was filed on October 24, 2004, and discovery, pursuant to the Uniform Rules, ended on May 24, 2005. The Plaintiff provided all of her current medical records during this original Discovery period. Pursuant to O.C.G.A. § 24-3-18, Plaintiff filed Dr. Sean Nelson's medical narrative on August 5, 2005. After Plaintiff filed the narrative, the Defendant moved on September 22, 2005 to re-open discovery through February 28, 2006. Thereafter, Defendants further moved to extend discovery through March 31, 2006. Plaintiff consented on both occasions. During those ten (10) months of re-opened and extended Discovery initiated by Defendants, Defendants did not once even request a § 9-11-35 Medical Examination or the deposition of any of Plaintiff's physicians.

The narrative of Dr. Nelson has been in the possession of the Defendants for over two years. Mrs. Barnett's injury has been evident since the Defendants were notified of it in May 2004 and is not a new fact. Defendants have had all of her medical records for years, and if they believed there was the need for an IME, they should have made a timely request instead of waiting until the eve of trial.

Defendants are not entitled to re-open Discovery in this case. Plaintiffs have not consented to any medical examinations taking place outside of Discovery. The necessary medical testimony was obtained from Plaintiffs’ treating physicians.

To allow Defendants to re-open Discovery for their exclusive benefit would be unfair to Plaintiff, as Plaintiff would not get the chance to conduct additional discovery1. Moreover, during the lawful Discovery period, Defendants failed to comply with the Civil Practice Act and Plaintiff was forced to file a Motion to Compel, for which this Court issued an Order to Compel against Defendants. The Defendants should not receive special Discovery treatment when they have been non-compliant with the Discovery process heretofore.

Because Discovery has been over for more than 17 months and because Defendants did not attempt to take any IMEs or physician depositions during the 18-month statutory discovery period, Defendants’ Motion is untimely and should be denied. Metropolitan Life Ins. Co. v. Lehmann, 125 Ga. App. 539, 188 S.E.2d 393 (1972) (request for medical examination properly denied where untimely).

B. DEFENDANT’S PROPOSED MEDICAL EXAMINATION IS NOT NECESSARY BECAUSE THE INFORMATION IS AVAILABLE FROM OTHER SOURCES.

Although Plaintiff believes resolutely that the untimeliness of the request is fatal, Plaintiff additionally argues that Defendant's Motion should be denied on additional grounds.

The trial court has broad discretion to deny Defendants' request for Plaintiff to submit to a medical examination. Bradford v. Parrish, 111 Ga. App. 167, 141 S.E.2d 125 (1965). In determining whether a party should be required to submit to a medical examination, the Court should consider whether the information sought is available from other sources. Prevost v. Taylor, 196 Ga. App. 368, 396 S.E.2d 17 (1990), rev’d on other grounds. In Prevost, the Court of Appeals held that it was within the trial court’s discretion to deny the defendant’s request for a medical examination on the grounds that the “information sought under the motion for examination could be obtained from other available sources.” Id. at 368. Specifically, the Court found that the plaintiff’s post-surgery medical records constituted another available source, and because all of the plaintiff’s records were available to the defendant, the medical examination was not necessary.

In the present case, all of Plaintiff’s medical records are available for review by Defendants and any expert they may wish to retain. Plaintiff’s medical condition has been examined through x-rays, MRIs and numerous physicians. All of Plaintiff’s MRI and x-ray results are available to Defendants and provide Defendants with objective evidence regarding Plaintiff’s medical condition.

Moreover, in their Motion, Defendants seem to take exception with the opinions of Dr. Nelson, using his findings as their exclusive basis for requesting the IME. If the Defendants wish to dispute Dr. Nelson's narrative or any of his other findings, they can now, before trial, schedule a evidentiary deposition to question him about his findings. The Plaintiff has no objection to such a deposition. Plaintiff has communicated this to Defendants' counsel. The Defendants have refused to do so during the entire pendency of this case.

Because Plaintiff’s medical records and films are readily available to Defendants and because Defendants have the opportunity to depose Dr. Nelson, Defendants’ Motion should be denied based on the availability of such additional sources of information. (Metro. Life Ins. Co. v. Lehmann, 125 Ga. App. 539, 540 (188 S.E.2d 393) (1972).

C. THE PROPOSED MEDICAL EXAMINATION IS NOT INDEPENDENT AND DEFENDANTS MOTION IS DEFECTIVE ON ITS FACE BECAUSE IT FAILS TO COMPLY WITH THE REQUIREMENTS OF O.C.G.A. § 9-11-35.

The medical examination proposed by Defendant is not an “independent” examination. Instead, the doctor has been carefully chosen by and will be paid by the Defendants presumably to provide information beneficial to the defense. The selection of the doctor was made exclusively by the Defendants, and the Plaintiff has no idea who the requested doctor is. He is not an independent physician as contemplated in O.C.G.A. § 9-11-35, but rather a "hired gun."

Moreover, in their motion, Defendants have failed to meet the burdens of O.C.G.A. § 9-11-35(a) which reads:

"Order for examination . When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician or to submit to a mental examination by a physician or a licensed psychologist or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is made."

Defendants have provided no evidence that the allegedly “independent” doctor is qualified to conduct a medical examination of the Plaintiff given Plaintiff’s injuries sustained in the incident at issue. They only state that he is a "licensed physician." Defendant fails to even identify the area of practice in which the proposed physician specializes.

Moreover, the "manner, conditions and scope" of the requested evaluation are not even mentioned, except to say that the examination shall be "non-invasive". While Plaintiff appreciates the fact that the Defendants will not attempt to compel Mrs. Barnett to undergo unelective surgery, it is entirely inappropriate for Defendants to request that Plaintiff submit to a physical examination of undetermined manner, scope and duration with a doctor she knows nothing about. It is also not compliant with O.C.G.A. § 9-11-35. The legislature included the "manner, custom and scope" language to protect the privacy of Plaintiff patients from unduly burdensome discovery. Because Defendants have ignored this requirement, Defendants have not shown fidelity to the spirit and the letter of O.C.G.A. § 9-11-35. Accordingly, their request is not proper.

WHEREFORE, for all the forgoing reasons, Plaintiffs respectfully request that the Defendants’ Motion for Rule 35 Examination be denied. (A proposed Order is attached hereto.)

Respectfully submitted this _________ day of ___________________, 2007.

________________________
P. Charles Scholle
Attorney for Plaintiffs
Georgia Bar Number 629736

Scholle Law
6340 Sugarloaf Parkway
Suite 200
Duluth, Georgia 30097
(678)775-6830



FULTON COUNTY STATE COURT

STATE OF GEORGIA

JENNIFER GARRISON,

Plaintiff,

vs.

MONTAG REALTY COMPANY, LLC d/b/a VERONA APARTMENTS, THE REALTY FUND III, L.P. and JOHN DOES 1-5,

Defendants.

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JURY TRIAL DEMANDED

CASE NUMBER: 04-VS-070909-C



ORDER

HAVING READ AND CONSIDERED Defendants' Motion to Require Plaintiff to Attend an Independent Medical Examination, Plaintiff’s Brief in Opposition thereto, and considering the record as a whole, it is:

HEREBY ORDERED AND ADJUDGED that Defendants MONTAG REALTY COMPANY, LLC and REALTY FUND’s Motion to Require Plaintiff to Attend an Independent Medical Examination is DENIED.

IT IS SO ORDERED, this _____ day of ____________, 2007.



_____________________________
JUDGE MYRA DIXON
STATE COURT OF FULTON COUNTY

cc:
P. Charles Scholle, Esq.
Brenda Carter, Esq.



FULTON COUNTY STATE COURT

STATE OF GEORGIA

JENNIFER GARRISON,

Plaintiff,

vs.

MONTAG REALTY COMPANY, LLC d/b/a VERONA APARTMENTS, THE REALTY FUND III, L.P. and JOHN DOES 1-5,

Defendants.

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JURY TRIAL DEMANDED

CASE NUMBER: 04-VS-070909-C



CERTIFICATE OF SERVICE

This is to certify that I have this day served opposing counsel for Defendants MONTAG REALTY, LLC and THE REALTY FUND, LP with the attached PLAINTIFF'S BRIEF IN OPPOSITION TO MOTION FOR RULE 35 EXAMINATION by depositing a copy of same in the United States mail with adequate postage affixed thereon addressed as follows:

Brenda Carter
Gray, Rust, St. Amand, Moffet & Brieske
1700 Atlanta Plaza
950 East Paces Ferry Road
Atlanta, Georgia 30326



This ____ day of ____________________, 2007.



________________________
P. Charles Scholle
Attorney for Plaintiffs
Georgia Bar Number 629736

Scholle Law
6340 Sugarloaf Parkway
Suite 200
Duluth, Georgia 30097
(678)775-6830



1 Plaintiff notes that counsel for Plaintiff did take a deposition after the discovery deadline of March 31, 2006, but submits this was agreed to with counsel for Defendants because Defendants had not provided discoverable material prior to the deadline, resulting in Plaintiff's Motion to Compel.

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