United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
COMPEL FRCP 35 EXAMINATION
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant First National
Insurance Company's (“FNIC”) motion to compel
a Rule 35 physical examination of Plaintiff Michael Vario.
Dkt. #25. Mr. Vario's suit stems from his involvement in
a three-car accident in which one driver was underinsured.
Following the accident, Mr. Vario sued, and eventually
settled, his claims against the underinsured driver and the
insured driver. Mr. Vario subsequently filed an underinsured
motorist claim with FNIC, his underinsured motorist insurance
carrier; FNIC denied Mr. Vario's claim and Mr. Vario sued
FNIC. FNIC now seeks a Rule 35 physical examination to
address the issues of causation, the nature and extent of Mr.
Vario's injuries, as well as Mr. Vario's current and
future prognosis. Id. at 9.
Vario does not agree with the scope of the Rule 35
examination FNIC requests, and he argues good cause for a
Rule 35 examination does not exist because he previously
underwent a Rule 35 examination in his underlying tort case
against the two motorists involved in the collision that
allegedly injured him. Dkt. #33 at 1-2. Mr. Vario reasons he will
be unfairly prejudiced if FNIC can rely on two Rule 35
physical examinations to address the question of causation,
and he proposes allowing a Rule 35 examination as long as
FNIC's chosen Rule 35 doctor does not rely upon or
consider the previous Rule 35 doctor's medical opinion.
Id. at 2-3.
reasons discussed herein, Defendant's motion to compel a
Rule 35 examination of Mr. Vario is GRANTED IN PART.
Vario was involved in a three-car accident on Interstate 5 in
Whatcom County in May 2014. Dkt. #37 ¶¶ 9-14. At
the time, Mr. Vario was a passenger in his co-worker's
car. Id. ¶ 12. The two other drivers involved
in the accident were Douglas McAcy and Homadokht Fattahi.
Id. ¶¶ 9-14. Mr. Vario alleges Mr.
McAcy's car struck the car he was in after Mr. McAcy
swerved to avoid hitting Ms. Fattahi's car. Id.
of the collision, Mr. Vario alleges he sustained
“severe physical and mental pain and suffering and
injury, ” and general damages (which includes
“impairment of enjoyment of life, disability and
disfigurement”). Id. ¶ 15. Mr. Vario also
alleges he has had to seek medical treatment, has incurred
transportation expenses to attend medical appointments, has
incurred lost wages, and has incurred expenses for
“essential services.” Id. Mr. Vario
alleges that a proximate cause of the collision was Mr.
McAcy's negligence. Id. ¶ 10. Mr. McAcy had
a liability limit of $50, 000. Id. ¶ 11.
the accident, in January 2015, Mr. Vario sued Mr. McAcy and
Ms. Fattahi. See Dkts. #1, Ex. A at ¶¶ 14,
16 and #26, Ex. A. As part of Mr. Vario's suit against
Mr. McAcy and Ms. Fattahi, Mr. Vario underwent a
court-ordered Rule 35 independent medical examination.
See Dkt. #26, Ex. H. On February 17, 2016, Dr. James
M. Blue, a neurosurgeon, conducted a medical evaluation of
Mr. Vario's post-collision injuries and a directed neuro
skeletal examination. Id. at 2-3. Dr. Blue opined on
whether he believed Mr. Vario's injuries were caused by
the May 2014 collision, on whether Mr. Vario had pre-existing
conditions, and on Mr. Vario's condition and prognosis at
the time of the examination. Id. at 13-14.
2015, because Mr. Vario's co-worker's underinsured
motorist (“UIM”) policy includes passengers as
“covered person[s], ” and because Mr. McAcy's
liability insurance policy limit was less than the damages
Mr. Vario claims Mr. McAcy caused him, Mr. Vario filed a UIM
claim with Allstate Fire & Casualty Insurance Company
(“Allstate”) for the damages caused by Mr. McAcy.
See Dkts. #1, Ex. A ¶¶ 12-14 and #37
¶¶ 3, 16. Allstate's UIM policy limit was $100,
000. Dkt. #37 ¶ 19. Allstate denied Mr. Vario's UIM
claim, and in November 2016, Mr. Vario sued Allstate in the
Superior Court of Washington for Whatcom County. See
Dkt. #1, Ex. A at 1. Allstate removed Mr. Vario's suit to
this Court in December 2016, and FNIC was later granted leave
to intervene. See Dkts. #1, #11 at 1, and #37
Vario's claims against Allstate were eventually settled,
and Allstate, FNIC, and Mr. Vario agreed to a stipulation
allowing Mr. Vario to amend his Complaint to name FNIC as a
defendant while dismissing Allstate from the matter.
See Dkts. #31 at 2-3 and #37 ¶ 5. Mr.
Vario's Amended Complaint alleges Mr. McAcy caused him
damages in excess of $150, 000, while the underinsured
motorist policy issued by FNIC has a coverage limit of $500,
000. Dkt. #37 ¶¶ 6, 16, 18, 19. Because the UIM
claim Mr. Vario submitted to FNIC was denied, Mr. Vario
brought this action to recover UIM benefits he alleges FNIC
is contractually obligated to cover. Id.
action pending before the Court places the mental or physical
condition of a party in controversy, Rule 35 of the Federal
Rules of Civil Procedure allows the Court to order a party to
submit to a mental or physical examination “by a
suitably licensed or certified examiner.” Fed.R.Civ.P.
35(a)(1). However, the Court's order “may be made
only on motion for good cause and on notice to all parties
and the person to be examined, ” and it must
“specify the time, place, manner, conditions, and scope
of the examination, as well as the person or persons who will
perform it.” Fed.R.Civ.P. 35(a)(2)(A)-(B). Parties
requesting a Rule 35 examination therefore must meet the
following two requirements before a Rule 35 examination is
ordered: (1) establish that the physical or mental condition
of a party is “in controversy”; and (2) establish
that “good cause” for ordering an examination
exists. Ragge v. MCA/Universal Studios, 165 F.R.D.
605, 608 (C.D. Cal. 1995).
purpose of Rule 35 is to “‘level the playing
field' between parties in cases in which a party's
physical or mental condition is in issue.” Id.
However, Rule 35 examinations may be denied where additional
relevant information will not be gained by the examination.
See Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)
(“The ability of the movant to obtain the desired
information by other means is also relevant.”).
“Because of the intrusive nature of [Rule 35]
examinations, they are not granted as a matter of right, but
rather as a matter of discretion.” Muller v. City
of Tacoma, ...