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Mizrahi v. Schwarzmann

November 24, 1999


Before Wagner, Chief Judge, and Steadman and Schwelb, Associate Judges.

The opinion of the court was delivered by: Steadman, Associate Judge

Appeals from the Superior Court of the District of Columbia (Hon. Mary Ellen Abrecht, Motions Judge) (Hon. Lee F. Satterfield, Trial Judge)

(Argued February 10, 1999 Decided November 24. 1999)

This civil suit stemmed from an automobile accident on February 3, 1992 in which plaintiff-appellant Diane Mizrahi's vehicle was struck from behind by the car of defendant- appellee Katherine Schwarzmann. While liability was contested, the primary issue at trial was the extent of plaintiff's injuries that could be attributed to the accident. Plaintiff claimed that she suffered post- concussion syndrome, mild closed head injury with organic brain damage, soft tissue injury, chronic neck and shoulder pain, post-traumatic stress disorder, and depression as a result of the collision. She offered evidence at trial showing that she had incurred medical expenses of close to $50,000 relating to her claimed injuries, as well as other elements of damages. The defense argued that plaintiff's injuries from the accident were exclusively orthopedic in nature and should have resolved within six weeks of onset and that other claimed physical and mental problems, if present at all, were not related to the accident. After a six day trial with testimony from at least ten experts, *fn1 the jury found the defendant negligent but awarded plaintiff only $8,000 in damages.

On appeal, plaintiff-appellant's challenge focuses upon the trial court's refusal to grant her time within which to depose the defendant's four experts, even though the defendant had had the opportunity to depose all of plaintiff's experts. As a result, the parties went to a trial where defendant had deposed all of plaintiff's experts but plaintiff had deposed none of defendant's experts. This, plaintiff claims, was a grossly uneven playing field, with a resultant limited damage award. We think there is merit in this argument of unequal treatment in the circumstances here. Therefore, we vacate the judgment and remand for a new trial. *fn2


Plaintiff filed her action on March 1, 1994 against both appellee and General Motors, which remained a party to the case until it prevailed on its motion for summary judgment in February of 1996. The motions Judge, pursuant to Super. Ct. Civ. R. 16(b), *fn3 issued an initial scheduling order on September 23, 1994 setting the close of discovery for March 23, 1995. Because of unexpected delays arising from plaintiff's diagnosis of and subsequent surgical and radiation treatment for cancer, the entire scheduling order was revised by joint consent on multiple occasions, first extending close of discovery to June 23, 1995, then to September 22, 1995, and finally to October 23, 1995. In each case, the entire schedule was shifted forward so that all components, including deadlines for Rule 26(b)(4) filings, discovery completion, and motions filings, were extended in tandem.

Apart from these necessary delays, discovery was further stalled by a lengthy and vigorous dispute over the number of independent medical examinations ("IMEs") plaintiff would undergo, once she was well enough to participate. Ordinarily, independent physical and mental examinations in personal injury cases are arranged through stipulation, without resort to a court order. Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2234 (1994). See also Glaser, Pretrial Discovery and the Adversary System, p. 146 (1968); Liechty v. Terrill Trucking Co., 53 F.R.D. 590, 591 (D.C.Tenn. 1971). However, in this case, the battle over IMEs is documented in the record by twenty pieces of correspondence between counsel for the parties, the majority of which were written between mid-July *fn4 and late September. Early in the dispute, plaintiff asserted she would attend a total of two IMEs only. Defendant had initially requested four IMEs, later increased to six, and ultimately asked that at least an orthopedic exam be scheduled while remaining disagreements were being resolved. As of August 25, 1995, plaintiff's position was stated as follows:

Under the circumstances, our offer of two IMEs is reasonable; if you will not agree to our offer, you will have to move the court to order IMEs. In addition, as we discussed yesterday, even if we were willing to allow Ms. Mizrahi to go to one IME without an agreement, she cannot go to the appointment scheduled for August 28 as she will be out of town.

No resolution had been reached as the September 11, 1995 deadline approached for defendant's submission of her Rule 26(b)(4) statement. Defendant proceeded to submit her Rule 26(b)(4) statement, listing a number of experts with no details as to their expected testimony, but with a proviso that the statement would be supplemented by reports of the listed experts once they were able to complete their independent examinations of plaintiff.

A few days after submission of defendant's 26(b)(4) expert list, on September 15, plaintiff presented herself for an IME with defendant's designated orthopedist, Dr. Gordon, but the examination did not go forward because Dr. Gordon insisted on evaluating plaintiff alone, while plaintiff insisted on the presence of her mother. That same day, plaintiff was seen by Dr. Mendelsohn, neurology expert for General Motors, then still a defendant in the case. *fn5 On September 20, an in person meeting between counsel for defendant Schwarzmann and counsel for plaintiff was held in a final attempt to resolve the discovery dispute pursuant to Rule 26(i), *fn6 but the parties remained unable to reach agreement. On September 22, defendant moved to compel plaintiff's submission to independent medical examinations under Rule 35. *fn7 Defendant requested examinations by the following experts: Dr. Gordon (orthopedics), Dr. Mendelsohn (neurosurgery), Dr. Schretlen (neuropsychology), Dr. Henderson (neurology/psychiatry), and Ms. Sampeck (vocational expert). As further required by Rule 26(i), defendant attached evidence of the parties' attempts to resolve the matter without court intervention. The motion also requested an extension of time for completion of the examinations, and imposition of sanctions against plaintiff in the form of expenses and attorney's fees for the motion, citing Rule 37(a)(4). *fn8 Plaintiff argued in her reply that no good cause had been shown for any of the exams.

On November 7, 1995, two weeks after discovery had closed, the motions Judge issued an order granting the motion in part and denying it in part. The order required plaintiff to undergo examination by Dr. Gordon, and one other expert of defendant's choice (either Schretlen, Henderson, or Sampeck). Defendant elected to use the additional granted IME for a psychiatric examination by Dr. Henderson. *fn9 Because plaintiff already had been examined by Dr. Mendelsohn on September 15, 1995 and was ordered to return to Dr. Gordon, three of the five defense experts identified in the Rule 35 motion ultimately were permitted to examine plaintiff. The deadline for IMEs by Doctors Gordon and Henderson was extended to December 15, 1995, and the order explicitly stated that all other discovery closed on schedule. *fn10 The motion for sanctions was denied. Neither order was accompanied by any Discussion of the reasoning behind the rulings.

On November 16, 1995, plaintiff moved for clarification of the court's earlier order to determine whether she would be permitted to depose those experts who were to examine her and submit their reports after the deadline for completion of discovery. *fn11 She stated that scheduling depositions would cause no further delays, and that she would be prepared for the mediation session scheduled for January 31, 1996. The motions Judge took up the issue during a hearing set for November 17, 1995. Defendant objected to extension of time for taking of depositions, declaring that plaintiff had been the primary cause of delay and should not benefit from further extensions. The court then orally ruled that no depositions outside the discovery period would be allowed, but that the defense experts would be limited in their testimony to those opinions set forth in reports to be submitted to plaintiff. The court made no findings of fault or ...

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