UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Grace McElroy

v. Civil No. 19-cv-844-JD Opinion No.

Omni Mount Washington, LLC, et al.

O R D E R

Grace McElroy brought suit after she was injured by a

shuttle bus at the Mount Washington Hotel. She alleges a claim

of negligence against the driver of the bus and a claim of

vicarious liability against Omni Mount Washington, LLC and Omni

Hotels Management Corporation. The defendants have filed a

motion to compel McElroy to undergo an orthopedic examination by

Dr. Kasparyan and a neurological and/or psychological

examination by Dr. Drukteinis.1 McElroy has agreed to the

examination with Dr. Drukteinis but objects to the examination

by Dr. Kasparyan.

1 The defendants requested a hearing in their reply. Generally, the court decides motions without oral argument. LR 7.1(d). The court may allow oral argument, however, based on a written statement by a party “outlining the reasons why oral argument may provide assistance to the court.”

Because the defendants did not include the required statement, their request for oral argument is denied. Standard of Review

A court may order a party whose physical or mental

condition is in controversy “to submit to a physical or mental

examination by a suitably licensed or certified examiner.” Fed.

R. Civ. P. 35(a)(1). The court’s order must be in response to a

“motion for good cause” and after notice to the parties and to

the person to be examined. Fed. R. Civ. P. 35(a)(2)(A). The

order 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)(B).

Rule 35(a) requires a two-part inquiry. King v. Deming,

, at *1 (D. Mass. July 30, 2020) (citing

Schlagenhauf v. Holder,

(1964)). The moving

party bears the burden of showing both that the physical

condition to be examined is actually in controversy and that

good cause exists to order the requested examination.

Schlagenhauf,

. Those showings “are not met by

mere conclusory allegations of the pleadings—nor by mere

relevance to the case—but require an affirmative showing by the

movant that each condition as to which the examination is sought

is really and genuinely in controversy and that good cause

exists for ordering each particular examination.”

“A plaintiff in a negligence action who asserts mental or

physical injury . . . places that mental or physical injury

2 clearly in controversy and provides the defendant with good

cause for an examination to determine the existence and extent

of such asserted injury.”

. However, “what may be

good cause for one type of examination may not be so for

another. The ability of the movant to obtain the desired

information by other means is also relevant.”

Background

McElroy alleges that while she was jogging on a road within

the grounds of the Mount Washington Hotel she was hit from

behind by a hotel shuttle bus. She alleges that as a result of

the accident, she sustained “a concussion and a head/scalp

laceration, a left rib fracture and contusion to her lung, along

with emotional trauma and other injuries, both past and future.”

Doc. no. 1-2, ¶ 11. McElroy provided a supplemental

interrogatory response on July 1, 2020, that listed the

following injuries: traumatic brain injury with concussion,

head laceration, displaced fracture of the 6th rib, lumbosacral

sprain and strain, cervicalgia with left cervical radiculitis,

post traumatic headaches, spasms and limited range of motion.

During her deposition, McElroy testified that she cannot

live her life as she did before the accident because of pain,

among other things. In particular, McElroy testified that she

3 used to train with her twin sister. Since her accident, McElroy

stated that her pace and endurance in running have decreased.

Discussion

The defendants argue that they are entitled to an

orthopedic examination by Dr. Kasparyan because McElroy has put

her physical condition in controversy by alleging physical

injuries due to negligence. The defendants contend that the

examination will address McElroy’s claims of continuing harm and

disability and any lingering effects of her injuries. In

response, McElroy represents that her physical injuries have

healed, that the only ongoing residual effects are from her

traumatic brain injury, that the nature of her physical injuries

sustained at the time of the accident can be ascertained from

existing medical records of her treatment, and that she should

not be compelled to undergo two medical examinations. She also

objects to having to travel from her home in New York to

northern Massachusetts for an in-person examination with Dr.

Kasparyan during the COVID-19 pandemic.

A. In Controversy

While the defendants assert, based on McElroy’s complaint

and discovery responses, that McElroy is claiming ongoing

effects from various injuries, she now represents that she is

4 only claiming ongoing effects from traumatic brain injury. As

such, McElroy has limited her claim of physical injury to the

injuries she suffered at the time of the accident, which have

now healed without ongoing effects, except that she claims

ongoing effects from the alleged traumatic brain injury. In

making that choice for purposes of the present motion, McElroy

so limits her claims for all purposes in this case.

The defendants have not shown that the nature or extent of

McElroy’s physical injuries at the time of the accident are in

controversy. Instead, the defendants focus on McElroy’s claims

of ongoing effects and disability. As is noted above, McElroy

has limited her claim for physical injuries, and, as a result,

only the ongoing effects due to traumatic brain injury are in

controversy.

B. Good Cause

To support their motion to compel an orthopedic examination

by Dr. Kasparyan, the defendants also must show good cause for

the examination. The defendants do not appear to seek an

orthopedic examination to address the injuries McElroy suffered

at the time of the accident. They have not argued or shown that

McElroy’s treatment records are unsatisfactory or insufficient

for purposes of assessing the nature of the injuries McElroy

sustained at the time of the accident.

5 With respect to the only ongoing condition that McElroy

claims, the effects of an alleged traumatic brain injury, the

defendants must show good cause for Dr. Kasparyan’s examination

to address that injury. See Davis v. Zurich Am. Ins. Co.,

, at *2 (N.D. Cal. Oct. 13, 2020). Importantly, the

examiner must be “suitably licensed and certified.” Fed. R.

Civ. P. 35(a)(1). The defendants, however, have not shown that

traumatic brain injury, and its ongoing effects, is a medical

condition that is within Dr. Kasparyan’s expertise.2

McElroy will undergo a mental examination by the

defendants’ independent medical examiner, Dr. Drukteinis.3

McElroy contends that a second examination by Dr. Kasparyan is

unnecessary. The defendants have not shown good cause to also

require an orthopedic examination for the ongoing effects of a

traumatic brain injury.

2 The curriculum vitae that the defendants provided for Dr. Kasparyan shows that he is chair of “Division of Orthopedic Surgery” at Lahey Hospital and Medical Center in Burlington, Massachusetts. His specialties are hand and arm surgery. There is no mention of a specialty, license, certification, or experience in neurology or traumatic brain injury.

3 Dr. Drukteinis’s curriculum vitae states that his professional work is “[c]omprehensive psychiatric and neuropsychiatric evaluations, and psychiatric treatment; medical-legal consultation; independent psychiatric assessment and expert testimony.”

6 C. Burden

McElroy also objects to the examination with Dr. Kasparyan

because it is an in-person examination to be conducted in

Woburn, Massachusetts. McElroy is concerned about an in-person

examination in light of the ongoing COVID-19 pandemic. She also

objects because the office is a three-hour drive from her home

in New York.

McElroy’s objections raise a question as to whether the

requested examination by Dr. Kasparyan imposes an unnecessary

burden on her. A party may obtain discovery on any

nonprivileged matter that is relevant and “proportional to the

needs of the case.” Fed. R. Civ. P. 26(b)(1). Whether a

discovery request is proportional to the needs of the case is

determined by “considering the importance of the issues at stake

in the action, the amount in controversy, the parties’ relative

access to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and whether

the burden or expense of the proposed discovery outweighs its

likely benefit.”

As is explained above, the defendants have not shown good

cause for an orthopedic examination by Dr. Kasparyan because

McElroy is claiming ongoing effects only from an alleged

traumatic brain injury. Dr. Kasparyan does not appear to have

expertise in the area of the effects of traumatic brain injury.

7 In addition, McElroy raises issues associated with an in-person

medical examination while cases of COVID-19 are on the increase

in Massachusetts and objects to the burden of a six-hour round

trip for the examination. Therefore, as currently presented,

the defendants’ request for an orthopedic examination by Dr.

Kasparyan is not proportional to their needs in the case.

Conclusion

For the foregoing reasons, the defendants’ motion to compel

examinations of the plaintiff (document no. 21) is denied.

The plaintiff has limited her claim of injury to the

injuries she incurred at the time of the accident, which have

now healed without any claimed ongoing effects, with the

exception of ongoing effects of her alleged traumatic brain

injury. Any other claims of on-going effects of her injuries,

such as disability, limited range of motion, and/or other

conditions including those alleged in the complaint and

disclosed in discovery, are waived.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge November 19, 2020

cc: Counsel of record.

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