Preview
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
10.1
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPT.
CIVIL ACTION NO. 2181CV03191
KATHLEEN DIPIETRO,
Plaintiff, RECEIVED
Vv.
10/13/2023
CHARLES BERRY,
Defendant.
PLAINTIFF’S OPPOSITION TO DEFENDANTS’MOTION TO COMPEL RULE 35
INDEPENDENT MEDICAL EXAMINATION
I INTRODUCTION.
Defendants, pursuant to Mass.R.Civ.P.35, seek an order compelling the plaintiff,
Kathleen Dipietro, to appear at an unknown location, on an unknown date, and for an unknown
length of time, for an examination by a, so-called independent, doctor. Plaintiff opposes
Defendants’ untimely and prejudicial motion and requests this Honorable Court deny same.
This case arises out of a motor vehicle collision on September 11, 2019 on Montvale
Avenue in Woburn, MA. The Plaintiff was struck from behind suddenly and without warning by
the Defendant who operated his vehicle negligently. As a result of the collision, the Plaintiff
sustained serious bodily injuries, including her neck, back, and hip which required surgery.
This injury occurred over four years ago. The Plaintiff filed her lawsuit against the
Defendant in October 2021. This matter has been in suit for two years, and the Defendants’
insurer, Sentry Insurance, has been actively engaged in this matter for over four years. At no
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
time prior to this current request and now motion has the Defendant or the insurer ever sought an
examination of the Plaintiff.
Throughout the course pendency of this litigation the “existence, nature, extent, and
causation” of the plaintiff’s alleged injuries have been known by the Defendants. All of
Plaintiff’s medical records were sent to Defendant’s insurer in June 2021, over two years ago.
Plaintiff has not treated for her injuries since 2021. The expert report of Plaintiff’s treating
doctor was provided to Defendant in May 2023. The discovery deadline in this matter was
November 25, 2022. A Pre-trial Conference was scheduled for September 19, 2023 which was
removed by the Court in lieu of setting a new trial date. Back in April 2023, this matter was
originally scheduled for trial on November 27, 2023. That was continued just days ago at the
request of the Defendant due to a scheduling conflict with another court that was assigned after
this one. Now, at this late date, Defendant for the first time seeks a medical examination of
Plaintiff. Plaintiff declined to agree to an examination under such conditions and Defendants
now seek the present Motion to Compel.
Il. ARGUMENT.
A. The Defendants’ Motion Fails to Comply with the Specific Requirements of Rule 35.
As a preliminary matter, the Defendants’ Motion should be denied as a matter of course
because the Defendants’ have failed to comply with the specific requirements of Rule 35(a)
which provides the motion “shall specify the time, place, manner, conditions and scope of the
examination”. The Defendants have failed to provide any of this information in their motion and
on this basis alone it should be denied. See mer V. outh Opportunit Uphe! Inc. 18 Mass
L.Rpt.301 (2004 Mass. Super. J. Agnes) (The defendant’s failure to specify the time, place,
manner, conditions and scope of the examination prevents the Court from exercising its
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
vide this
discretion to order a Rule 35 examination.) The rule requires the Defendants to pro
the examination
information to nonmoving party to allow objections to be raised in advance of
proper limits of such
and to allow the Court to properly consider the request and determine the
prejudices the Plaintiff in
an examination by the Defendants’ expert. Additionally, this further
or, as Plaintiff believes, will
her ability to determine if the examination will be truly indepen: dent
be a biased attempt to bolster Defendants’ case prior to trial.
B. Defendant Has Had Ample Time to Request and Conduct Additional Medical
Evaluati of the Plai iff.
ependent
Defendant has had more than sufficient time to request and cor nduct an ind
actively engaged in this
medical examination prior to the present. Defendant’s insurer ha: s been
matter for over four years. Defendants have been in possessio n of
Plaintiff’s medical records for
a Rule 35
several years. There is no reasonable excuse whi ich Defendants can offer as to why
r to now, especially given the
examination was not requested and Conduct ed ofthe Plaintiff prio
long history of discussions betwee n the plaintiffand the insurer and
the length of time this matter
has been in suit.
only co! ntinued, at
Further, this matter was scBneduled for trial jet month and was
coxnflict. Not to give more time for
the request of Defendant, to acconrmmodate ascheding
ye ars ago. Moreover, an
Defendant to bolster his case by deaing things he shuld hawze done
damages in this case. Plaintiff
exam of the Plaintiff now would pro -vide very little ight inte> the
one that is hej ect o£ this suit. Examining her now will
suffered a subsequent injury after the
to allow Defendant to have a
not accurately reflect her alleged comndition s. This in a tactic
d” her. Defendant
doctor that has already reviewed hex recor ds the al 2: to clai mn he “examine
is now attempting to make
dropped the ball and did almost not&-in: g on this mforyea. “ars and
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
up for it. The have also noticed another deposition for which they plan to petition the Court to
allow them to take late as well.
A request for a medical examination of the Plaintiff by a doctor of Defendant’s choosing,
at this time is dilatory in nature and the granting of this request will work great prejudice upon
the Plaintiff in the preparation of her case for trial, which is now only three months away.
Additional discovery may need to be conducted due to the late designation by Defendants of a
medical expert in this matter and depending upon the nature of any report issued by same. Any
request for an “independent” exam at this point would seem to be an attempt by Defendants to
bolster their case for upcoming trial, rather than to provide actual clarification on the extent of
damages. There is no good faith basis to allow the Defendants at this late date to force the
Plaintiff to attend an examination. While Plaintiff maintains that Defendants would not be
prejudiced by the denial of this motion, any prejudice sustained would be due to their own failure
to act.
C. Defendants’ Motion Fails to Demonstrate “Good Cause” Required by Rule 35.
Rule 35 allows the Court the discretion to order a party to submit to a medical
examination if the moving party has established “good cause” for the examination to proceed.
The Reporter’s Notes to Rule 35 states “No one need submit to a physical examination except
upon a court order granted only ‘for good cause shown’.” The mere relevancy of the results of
a physical or mental examination is an insufficient basis to order an examination. Rather, Rule
35 requires both relevancy and a demonstration of “good cause”. Doe v. Senechal, 431 Mass.
78, 81 (2000). (“[rJule permits a judge to order any party to submit to a physical examination by
a physician only if his physical condition is ‘in controversy’ and if the moving party has
established “good cause” for the test to proceed.”) (Copy attached as exhibit 2.) In Doe v.
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
Senechal, the Supreme Judicial Court addressed the issue specifically stating:
Parties to a civil action generally “may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action. »
Rule 35(a) by its express terms is more restrictive, requiring a greater showing of
need: in every case where a party requests a mental or physical examination, a
judge “must decide, as an initial matter” whether the party “has adequately
demonstrated the existence of the Rule's requirements of ‘in controversy’ and
‘good cause.’ ” Schlagenhaufv. Holder, 379 U.S. 104, 118-119, 85 S.Ct. 234, 13
L.Ed.2d 152 (1964) (discussing Federal counterpart to rule 35). In addition, the
requirements of rule 35 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.” Doe v. Senechal. at 81-82.
The Defendants have failed to meet the standard set out by the Supreme Judicial Court in
Doe v. Senechal, “requirements of rule 35 are not met by mere conclusory allegations of the
pleadings- nor by mere relevance to the case”. The Defendants have failed to make any
showing of a controversy concerning the injuries or the medical treatment. Again, an exam of the
Plaintiff now would provide very little insight into the damages in this case. Plaintiff suffered a
subsequent injury after the one that is the subject of this suit. Examining her now will not
accurately reflect her alleged conditions. This is simply a tactic to allow Defendant to have a
doctor that has already reviewed her records the ability to claim he “examined” her.
The Defendants have independently subpoenaed medical records from medical providers
seeking all of the Plaintiffs medical records not just the records concerning the treatment
received for the injuries that are the subject of this lawsuit. The Defendants have also been
provided with the necessary discovery. Despite the availability of these records the Defendants
have failed to articulate or identify any specific controversy concerning the injuries alleged or
good cause for multiple medical examinations.
D. Ifthe Court Is Inclined to Allow a Medical Examination, the Order Should Specify the
Manner, Conditions, and Scope of the Examination.
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
While Plaintiff vehemently believes there is no reasonable reason whatsoever the
Defendant should be allowed an extremely delayed, futile, examination of the Plaintiff based on
the above and solely for the practical reason of admissibility at trial; if this Court is to allow it,
the plaintiff moves for the following conditions to be included in any such order:
(1) the examination will consist of a physical examination (including the movement and
manipulation of bodily parts) in the privacy of the doctor's office under conditions
applicable to the care and treatment of any other patient;
(2) the plaintiff shall be allowed to bring with her an individual of her choosing so as to
witness the evaluation, and perhaps, testify as to the extent of the examination, the
movements performed, and the dialogue between the doctor and the Plaintiff;
(3) the physician may inquire of the plaintiff about matters relating to her physical
condition before and following the events that are the subject of this case and her
treatment to date, but not about the events that led up to the incident or other
questions relating to liability or comparative negligence or matters unrelated to the
medical issues;
(4) the physician is not permitted to conduct any diagnostic tests that involve an
invasion of the plaintiff's bodily integrity such as a blood tests or the placing of a
scope inside the body, X-ray radiation, or offsite visits to another health care
provider or medical establishment without prior approval of the Court;
6) plaintiff’s counsel be permitted to attend and observe the examination;
(6) the parties appear and begin the examination at the scheduled time absent a bona
fide emergency;
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
(7) the plaintiff’s counsel receives a detailed written report of the examining physician
setting out his findings, including results of all tests made, diagnoses and
conclusions, together with like reports of all earlier examinations of the same
condition within 30 days of the date of the examination. See Rule 35(b)(1).
(8) the defendants be precluded from referring to the examination at any time, including
in the report, in pleadings or at trial, as an “independent” medical examination, as it
is not independent and no evidence of independence has been submitted;
(9) the plaintiff shall be entitled to serve additional discovery, in the form of
interrogatories, requests of production of documents and a deposition, upon the
defendants to allow the plaintiff an opportunity to fully explore the relationship
between the alleged expert, the insurance companies insuring the defendants, and the
relationship between counsel for the defendants and the alleged expert, including,
but not limited to 1) any agreements, history of business, or contracts between the
doctor, insurance company, law firm, or other entities involved 2) all cases in which
the doctor has conducted medical examinations on behalf of the insureds or clients
of the insurance companies and law firms involved 3) all cases in which the doctor
has testified as an expert on behalf of the insureds or clients of the insurance
companies and law firms involved, 4) the nature, scope, extent, amount and dates of
all fees charged by or paid to the doctor or any IME or similar service or business
for which the doctor has conducted medical examinations on behalf of the insureds
or clients of the insurance companies and law firms involved and 5) the outcome of
all claims for which the doctor conducted medical examinations on behalf of the
insureds or clients of the insurance companies and law firms involved.
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
In support of the above conditions, Plaintiff states the following:
. To suggest that a Rule 35 exam is not an adversarial proceeding ignores the
simple facts surrounding the examination. Mr. Chojolan is alleging the
Defendants caused him injuries and the Defendants are denying it. Nothing could
be more adversarial than one party suing another for injuries and the other party
failing to accept responsibility for it. To ask the Plaintiff to go to an adversarial
proceeding such as this, without the comfort of a trusted individual and without
the comfort of his attorney to protect his rights only asks for problems to occur.
Defendant is attempting to mislead the jury by seeking to refer to its chosen
doctor’s examination as “independent” as there has been no evidence of
independence alleged or proven. Plaintiff did not have any voice in the selection
of a doctor to examine himself. The mere act of being paid by the Defendant to
provide his opinion creates an element of bias. Furthermore, should the
examination support the Plaintiff’s allegations, it is entirely expected that the
report and the opinion will never see the light of day, let alone the courtroom. To
allow the Defendant to refer to the exam as “independent” is simply misleading
without a showing of independence. The challenge to show independence exists,
and the burden is on the Defendant to show the same.
Conducting discovery as to expert bias has been consistently upheld by the
Superior Court in allowing discovery by plaintiffs seeking to learn the scope of
the relationship between a medical expert witness and those who have hired
and/or paid the witness. See, e.g. Thomas et al v. Sarfarty et al, MICV99-01361,
13 Mass. L.Rep 17, 2001 Mass. Super. LEXIS 119 (plaintiffs request to explore
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
financial relationship between expert medical witness and insurer allowed at
discovery stage as discovery is designed to elicit facts that can be used to impeach
the credibility of the expert at trial; McCarrick
v. Pepisco, SUCV99-3601, 2001
Mass. Super. LEXIS 670 (whether or not proposed medical defense expert
receives such substantial amount of work from insurers and defendants as to make
her biased a proper issue for discovery; Rowe v. City of Haverhill, ESCV1999-
02108 (defendant’s motion to quash subpoena seeking tax returns and other
financial records of designated expert witness denied.) As can be seen from the
cases quoted above, there is a consistent line of trial court cases allowing
plaintiffs to explore the nature, scope and extent of a defendant’s expert witness’s
relationship with those hiring and/or paying the witness. For purposes of this
analysis there is no practical distinction between the medical expert having a long
standing and financially rewarding business relationship with the insurer for the
defendant or counsel for the defendant in determining bias as a “defense medical
expert”.
Til. CONCLUSION
Defendant has not shown good cause for the requested examination and Defendant has
had more than enough time to request an examination by doctor prior to the present. Plaintiff,
therefore, opposes Defendants’ untimely and prejudicial motion and requests this Honorable
Court deny same.
Respectfully submitted,
Plaintiff, Kathleen Dipeitro
By her Attorney,
/s/ Ross B. Greenstein
Date Filed 10/13/2023 4:02 PM
Superior Court - Middlesex
Docket Number 2181CV03191
Ross B. Greenstein., BBO#: 682222
JASON STONE INJURY LAWYERS
225 Friend Street, Suite 102
Boston, MA 02114
RBG@Stonelnjury.com
(617) 523-4357
10
Preview
Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 10.1 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPT. CIVIL ACTION NO. 2181CV03191 KATHLEEN DIPIETRO, Plaintiff, RECEIVED Vv. 10/13/2023 CHARLES BERRY, Defendant. PLAINTIFF’S OPPOSITION TO DEFENDANTS’MOTION TO COMPEL RULE 35 INDEPENDENT MEDICAL EXAMINATION I INTRODUCTION. Defendants, pursuant to Mass.R.Civ.P.35, seek an order compelling the plaintiff, Kathleen Dipietro, to appear at an unknown location, on an unknown date, and for an unknown length of time, for an examination by a, so-called independent, doctor. Plaintiff opposes Defendants’ untimely and prejudicial motion and requests this Honorable Court deny same. This case arises out of a motor vehicle collision on September 11, 2019 on Montvale Avenue in Woburn, MA. The Plaintiff was struck from behind suddenly and without warning by the Defendant who operated his vehicle negligently. As a result of the collision, the Plaintiff sustained serious bodily injuries, including her neck, back, and hip which required surgery. This injury occurred over four years ago. The Plaintiff filed her lawsuit against the Defendant in October 2021. This matter has been in suit for two years, and the Defendants’ insurer, Sentry Insurance, has been actively engaged in this matter for over four years. At no Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 time prior to this current request and now motion has the Defendant or the insurer ever sought an examination of the Plaintiff. Throughout the course pendency of this litigation the “existence, nature, extent, and causation” of the plaintiff’s alleged injuries have been known by the Defendants. All of Plaintiff’s medical records were sent to Defendant’s insurer in June 2021, over two years ago. Plaintiff has not treated for her injuries since 2021. The expert report of Plaintiff’s treating doctor was provided to Defendant in May 2023. The discovery deadline in this matter was November 25, 2022. A Pre-trial Conference was scheduled for September 19, 2023 which was removed by the Court in lieu of setting a new trial date. Back in April 2023, this matter was originally scheduled for trial on November 27, 2023. That was continued just days ago at the request of the Defendant due to a scheduling conflict with another court that was assigned after this one. Now, at this late date, Defendant for the first time seeks a medical examination of Plaintiff. Plaintiff declined to agree to an examination under such conditions and Defendants now seek the present Motion to Compel. Il. ARGUMENT. A. The Defendants’ Motion Fails to Comply with the Specific Requirements of Rule 35. As a preliminary matter, the Defendants’ Motion should be denied as a matter of course because the Defendants’ have failed to comply with the specific requirements of Rule 35(a) which provides the motion “shall specify the time, place, manner, conditions and scope of the examination”. The Defendants have failed to provide any of this information in their motion and on this basis alone it should be denied. See mer V. outh Opportunit Uphe! Inc. 18 Mass L.Rpt.301 (2004 Mass. Super. J. Agnes) (The defendant’s failure to specify the time, place, manner, conditions and scope of the examination prevents the Court from exercising its Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 vide this discretion to order a Rule 35 examination.) The rule requires the Defendants to pro the examination information to nonmoving party to allow objections to be raised in advance of proper limits of such and to allow the Court to properly consider the request and determine the prejudices the Plaintiff in an examination by the Defendants’ expert. Additionally, this further or, as Plaintiff believes, will her ability to determine if the examination will be truly indepen: dent be a biased attempt to bolster Defendants’ case prior to trial. B. Defendant Has Had Ample Time to Request and Conduct Additional Medical Evaluati of the Plai iff. ependent Defendant has had more than sufficient time to request and cor nduct an ind actively engaged in this medical examination prior to the present. Defendant’s insurer ha: s been matter for over four years. Defendants have been in possessio n of Plaintiff’s medical records for a Rule 35 several years. There is no reasonable excuse whi ich Defendants can offer as to why r to now, especially given the examination was not requested and Conduct ed ofthe Plaintiff prio long history of discussions betwee n the plaintiffand the insurer and the length of time this matter has been in suit. only co! ntinued, at Further, this matter was scBneduled for trial jet month and was coxnflict. Not to give more time for the request of Defendant, to acconrmmodate ascheding ye ars ago. Moreover, an Defendant to bolster his case by deaing things he shuld hawze done damages in this case. Plaintiff exam of the Plaintiff now would pro -vide very little ight inte> the one that is hej ect o£ this suit. Examining her now will suffered a subsequent injury after the to allow Defendant to have a not accurately reflect her alleged comndition s. This in a tactic d” her. Defendant doctor that has already reviewed hex recor ds the al 2: to clai mn he “examine is now attempting to make dropped the ball and did almost not&-in: g on this mforyea. “ars and Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 up for it. The have also noticed another deposition for which they plan to petition the Court to allow them to take late as well. A request for a medical examination of the Plaintiff by a doctor of Defendant’s choosing, at this time is dilatory in nature and the granting of this request will work great prejudice upon the Plaintiff in the preparation of her case for trial, which is now only three months away. Additional discovery may need to be conducted due to the late designation by Defendants of a medical expert in this matter and depending upon the nature of any report issued by same. Any request for an “independent” exam at this point would seem to be an attempt by Defendants to bolster their case for upcoming trial, rather than to provide actual clarification on the extent of damages. There is no good faith basis to allow the Defendants at this late date to force the Plaintiff to attend an examination. While Plaintiff maintains that Defendants would not be prejudiced by the denial of this motion, any prejudice sustained would be due to their own failure to act. C. Defendants’ Motion Fails to Demonstrate “Good Cause” Required by Rule 35. Rule 35 allows the Court the discretion to order a party to submit to a medical examination if the moving party has established “good cause” for the examination to proceed. The Reporter’s Notes to Rule 35 states “No one need submit to a physical examination except upon a court order granted only ‘for good cause shown’.” The mere relevancy of the results of a physical or mental examination is an insufficient basis to order an examination. Rather, Rule 35 requires both relevancy and a demonstration of “good cause”. Doe v. Senechal, 431 Mass. 78, 81 (2000). (“[rJule permits a judge to order any party to submit to a physical examination by a physician only if his physical condition is ‘in controversy’ and if the moving party has established “good cause” for the test to proceed.”) (Copy attached as exhibit 2.) In Doe v. Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 Senechal, the Supreme Judicial Court addressed the issue specifically stating: Parties to a civil action generally “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. » Rule 35(a) by its express terms is more restrictive, requiring a greater showing of need: in every case where a party requests a mental or physical examination, a judge “must decide, as an initial matter” whether the party “has adequately demonstrated the existence of the Rule's requirements of ‘in controversy’ and ‘good cause.’ ” Schlagenhaufv. Holder, 379 U.S. 104, 118-119, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (discussing Federal counterpart to rule 35). In addition, the requirements of rule 35 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.” Doe v. Senechal. at 81-82. The Defendants have failed to meet the standard set out by the Supreme Judicial Court in Doe v. Senechal, “requirements of rule 35 are not met by mere conclusory allegations of the pleadings- nor by mere relevance to the case”. The Defendants have failed to make any showing of a controversy concerning the injuries or the medical treatment. Again, an exam of the Plaintiff now would provide very little insight into the damages in this case. Plaintiff suffered a subsequent injury after the one that is the subject of this suit. Examining her now will not accurately reflect her alleged conditions. This is simply a tactic to allow Defendant to have a doctor that has already reviewed her records the ability to claim he “examined” her. The Defendants have independently subpoenaed medical records from medical providers seeking all of the Plaintiffs medical records not just the records concerning the treatment received for the injuries that are the subject of this lawsuit. The Defendants have also been provided with the necessary discovery. Despite the availability of these records the Defendants have failed to articulate or identify any specific controversy concerning the injuries alleged or good cause for multiple medical examinations. D. Ifthe Court Is Inclined to Allow a Medical Examination, the Order Should Specify the Manner, Conditions, and Scope of the Examination. Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 While Plaintiff vehemently believes there is no reasonable reason whatsoever the Defendant should be allowed an extremely delayed, futile, examination of the Plaintiff based on the above and solely for the practical reason of admissibility at trial; if this Court is to allow it, the plaintiff moves for the following conditions to be included in any such order: (1) the examination will consist of a physical examination (including the movement and manipulation of bodily parts) in the privacy of the doctor's office under conditions applicable to the care and treatment of any other patient; (2) the plaintiff shall be allowed to bring with her an individual of her choosing so as to witness the evaluation, and perhaps, testify as to the extent of the examination, the movements performed, and the dialogue between the doctor and the Plaintiff; (3) the physician may inquire of the plaintiff about matters relating to her physical condition before and following the events that are the subject of this case and her treatment to date, but not about the events that led up to the incident or other questions relating to liability or comparative negligence or matters unrelated to the medical issues; (4) the physician is not permitted to conduct any diagnostic tests that involve an invasion of the plaintiff's bodily integrity such as a blood tests or the placing of a scope inside the body, X-ray radiation, or offsite visits to another health care provider or medical establishment without prior approval of the Court; 6) plaintiff’s counsel be permitted to attend and observe the examination; (6) the parties appear and begin the examination at the scheduled time absent a bona fide emergency; Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 (7) the plaintiff’s counsel receives a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition within 30 days of the date of the examination. See Rule 35(b)(1). (8) the defendants be precluded from referring to the examination at any time, including in the report, in pleadings or at trial, as an “independent” medical examination, as it is not independent and no evidence of independence has been submitted; (9) the plaintiff shall be entitled to serve additional discovery, in the form of interrogatories, requests of production of documents and a deposition, upon the defendants to allow the plaintiff an opportunity to fully explore the relationship between the alleged expert, the insurance companies insuring the defendants, and the relationship between counsel for the defendants and the alleged expert, including, but not limited to 1) any agreements, history of business, or contracts between the doctor, insurance company, law firm, or other entities involved 2) all cases in which the doctor has conducted medical examinations on behalf of the insureds or clients of the insurance companies and law firms involved 3) all cases in which the doctor has testified as an expert on behalf of the insureds or clients of the insurance companies and law firms involved, 4) the nature, scope, extent, amount and dates of all fees charged by or paid to the doctor or any IME or similar service or business for which the doctor has conducted medical examinations on behalf of the insureds or clients of the insurance companies and law firms involved and 5) the outcome of all claims for which the doctor conducted medical examinations on behalf of the insureds or clients of the insurance companies and law firms involved. Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 In support of the above conditions, Plaintiff states the following: . To suggest that a Rule 35 exam is not an adversarial proceeding ignores the simple facts surrounding the examination. Mr. Chojolan is alleging the Defendants caused him injuries and the Defendants are denying it. Nothing could be more adversarial than one party suing another for injuries and the other party failing to accept responsibility for it. To ask the Plaintiff to go to an adversarial proceeding such as this, without the comfort of a trusted individual and without the comfort of his attorney to protect his rights only asks for problems to occur. Defendant is attempting to mislead the jury by seeking to refer to its chosen doctor’s examination as “independent” as there has been no evidence of independence alleged or proven. Plaintiff did not have any voice in the selection of a doctor to examine himself. The mere act of being paid by the Defendant to provide his opinion creates an element of bias. Furthermore, should the examination support the Plaintiff’s allegations, it is entirely expected that the report and the opinion will never see the light of day, let alone the courtroom. To allow the Defendant to refer to the exam as “independent” is simply misleading without a showing of independence. The challenge to show independence exists, and the burden is on the Defendant to show the same. Conducting discovery as to expert bias has been consistently upheld by the Superior Court in allowing discovery by plaintiffs seeking to learn the scope of the relationship between a medical expert witness and those who have hired and/or paid the witness. See, e.g. Thomas et al v. Sarfarty et al, MICV99-01361, 13 Mass. L.Rep 17, 2001 Mass. Super. LEXIS 119 (plaintiffs request to explore Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 financial relationship between expert medical witness and insurer allowed at discovery stage as discovery is designed to elicit facts that can be used to impeach the credibility of the expert at trial; McCarrick v. Pepisco, SUCV99-3601, 2001 Mass. Super. LEXIS 670 (whether or not proposed medical defense expert receives such substantial amount of work from insurers and defendants as to make her biased a proper issue for discovery; Rowe v. City of Haverhill, ESCV1999- 02108 (defendant’s motion to quash subpoena seeking tax returns and other financial records of designated expert witness denied.) As can be seen from the cases quoted above, there is a consistent line of trial court cases allowing plaintiffs to explore the nature, scope and extent of a defendant’s expert witness’s relationship with those hiring and/or paying the witness. For purposes of this analysis there is no practical distinction between the medical expert having a long standing and financially rewarding business relationship with the insurer for the defendant or counsel for the defendant in determining bias as a “defense medical expert”. Til. CONCLUSION Defendant has not shown good cause for the requested examination and Defendant has had more than enough time to request an examination by doctor prior to the present. Plaintiff, therefore, opposes Defendants’ untimely and prejudicial motion and requests this Honorable Court deny same. Respectfully submitted, Plaintiff, Kathleen Dipeitro By her Attorney, /s/ Ross B. Greenstein Date Filed 10/13/2023 4:02 PM Superior Court - Middlesex Docket Number 2181CV03191 Ross B. Greenstein., BBO#: 682222 JASON STONE INJURY LAWYERS 225 Friend Street, Suite 102 Boston, MA 02114 RBG@Stonelnjury.com (617) 523-4357 10