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Doe v. Provident Life & Accident Insurance Co.

January 30, 2008

JOHN DOE, M.D., PLAINTIFF,
v.
PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM ORDER

Pending before this Court is Plaintiff's Motion for Protective Order ("MPO") Limiting the Scope of the Scheduled Independent Medical Evaluation ("IME") [20], the opposition to the Motion ("Opposition") [26] by Defendant Provident Life and Accident Insurance Company ("Provident"); and Plaintiff's reply to the Opposition ("Reply") [28].*fn1 Also pending before this Court is Defendant's Motion for Extension of Deadline for an IME Report ("Motion") [25], and Plaintiff's opposition to the Motion.*fn2 Defendant opposes the Plaintiff's request for a protective order limiting the scope of the IME and asks that this Court require Plaintiff to complete the IME and to reimburse Defendant for the fees and costs incurred as a result of his Motion and any fees associated with the rescheduling of the IME.

I. Background

Plaintiff John Doe ("Plaintiff" or "Doe") brought suit against Defendant, the Provident Life & Accident Insurance Company under theories of breach of contract and bad faith relating to Provident's denial of disability benefits pursuant to Provident's Disability Income Insurance Policy No. 6-334-675592. (Memorandum in support of MPO ("Memorandum") at 1; Motion at 1.) Plaintiff claims to have become totally disabled from his occupation as an emergency room physician, in April 2004, due to post-traumatic stress disorder ("PTSD") (Opposition at 1.) Doe seeks "more than $600,000 in disability benefits from April 2004 through his sixty-fifth birthday in 2014, residual monthly disability benefits of nearly the same amount dating back to 1997, plus extra-contractual punitive damages, costs, fees and interest." (Motion at 2; see Complaint at ¶¶27-28, and p.8.)

Plaintiff acknowledges that he "agreed to take part in an [IME] with a doctor of Defendant's choosing which was initially discussed during the parties Rule 26(f) conference in August, 2007." (Memorandum at 1-2.) By electronic mail exchanged between counsel, dated November 15, 200 through November 20, 2007, Defendant proposed that Dr. Neil Blumberg would conduct Doe's IME, which would include a three-hour interview and three hours of testing. See Opposition, Exh. 1 (e-mail exchange). Plaintiff subsequently allowed Dr. Blumberg to conduct the interview portion of the psychiatric IME but would not submit to the psychological testing.*fn3 Plaintiff moves for a protective order to preclude the Defendant from being allowed to complete such testing.

II. Legal Standard

In general, a party is entitled to discover information that is "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). A party may discover information that is not privileged and "is relevant to the claim or defense of any party." Id. For purposes of discovery, relevance is broadly construed. See, e.g., Burlington Ins. Co. v. Okie Dokie, Inc., 368 F.Supp. 2d 83, 86 (D.D.C. 2005).

Courts have broad discretion to enter orders limiting and managing discovery. See, e.g., McKesson HBOC, Inc. v. Islamic Republic of Iran, 226 F.R.D. 56, 57 (D.D.C. 2004); Doe v. District of Columbia, 230 F.R.D. 47, 50 (D.D.C. 2005).Pursuant to Fed. R. Civ. P. 26(b)(2)(iii), the court may limit discovery on its own initiative, if it determines that "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issue at stake in the litigation, and the importance of the proposed discovery in resolving the issues." See Hammerman v. Peacock, 108 F.R.D. 66, 67 (D.D.C. 1985) (discussing amendments to Rule 26(b)).

A party may move for a protective order, pursuant to Fed. R. Civ. P. 26(c) "to protect a party . . . from annoyance, embarrassment, oppression, or undue burden or expense, including . . . [an order] that the disclosure or discovery not be had; [or] that the disclosure or discovery may be had only on specified terms and conditions . . . . " The movant must establish "good cause" under Rule 26(c) "by demonstrating the specific evidence of the harm that would result. . . ." Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001). The movant carries the burden of establishing that a protective order should be granted. Fonville v. District of Columbia, 239 F.R.D. 38, 40 (D.D.C. 2005). The Court employs a balancing test in determining whether to grant a motion for protective order, weighing the burdensomeness to the moving party against the requestor's need for, and relevance of the information sought. Jennings, 201 F.R.D. at 275 (citing Lohrenz v. Donnelly, 187 F.R.D. 1, 3 (D.D.C. 1999); Alexander v. F.B.I., 186 F.R.D. 71, 75 (D.D.C. 1998)).

Federal Rule 35 authorizes courts to order parties to submit to mental or physical examinations in a case where such party's mental or physical condition is in controversy; there is good cause for such examination; and the person to be examined receives notice specifying the time, place, manner, conditions and scope of such examination. See Fed. R. Civ. P. 35(a).

III. Legal Analysis

The grounds for Plaintiff's Motion for Protective Order Limiting the Scope of the Scheduled Independent Medical Evaluation [20] are threefold:1) that psychological testing of Plaintiff in connection with the IME is "needlessly intrusive;"2) that ERISA [Employee Retirement Income Security Act] allegedly limits this Court's review to the administrative record; and 3) that Defendant's attempt to take an IME at this point in the litigation constitutes "harassment" and "undue burden" because the evidence does not relate back to the time when the decision to deny benefits was made. See Plaintiff's Memorandum at 2-5.

Addressing Plaintiff's assertion that the IME is "needlessly intrusive," Defendant argues that Plaintiff's MPO should be denied on grounds that "Plaintiff's counsel previously agreed in writing to the testing to which it now objects." (Opposition at 6.) Plaintiff responds by asserting that while he agreed to a "medical examination [that] he attended . . . with Dr. Blumberg on January 4, 2008," (Reply at 2), any additional testing is "needlessly intrusive." Plaintiff fails to provide any support for his conclusory allegation and instead attempts to shift the burden to Defendant to justify the need for an examination. Defendant responds by asserting that it has met its burden under Rule 35 of demonstrating why the psychological testing should go forward, based on satisfaction of the three prerequisites of that Rule.

Defendant argues that the crux of Plaintiff's claims is that he is totally disabled because of PTSD; accordingly, there can be no dispute that Plaintiff has put his mental health in issue. See Opposition at 8, citing several cases supporting the proposition that where a plaintiff's claim puts his mental health at issue, federal courts generally require psychiatric and/or psychological IMEs over the objection of the examinee. Plaintiff does not cite any case law to rebut Defendant's proposition nor does he make any cogent argument that his mental health is not at issue in this case. Instead, Plaintiff asserts that he never agreed to psychological evaluation by Dr. Blumberg, whom he argues is not a psychologist. Dr. Blumberg's Declaration, attached as Opposition, Exh.2, establishes that Blumberg, a psychiatrist, has performed numerous psychiatric IMEs and "routinely administered the psychological tests at issue as part of those IMEs" and according to him, ...


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