United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
QUASH AND GRANTING DEFENDANT'S MOTION TO COMPEL MEDICAL
H. CLELAND UNITED STATES DISTRICT JUDGE.
a discovery dispute regarding Independent Medical
Examinations (IMEs) in a Michigan no-fault insurance case.
Pending before the court are Plaintiff's Motion to Quash
Notice of IMEs (ECF No. 17) and Defendant's Motion to
Compel Medical Examinations and Adjourn Scheduling Order (ECF
No. 18). A response has been filed to each. (ECF Nos. 20,
21.) For the reasons stated below, the court will deny the
former and grant the latter.
Margaret Brooks was injured in a motor vehicle accident on
February 13, 2017. She brought an action in state court
against her insurance carrier, Defendant First National
Insurance Company of America, for first-party benefits and
uninsured motorist benefits under Michigan's No-Fault
Automobile Insurance Act. Plaintiff claims that Defendant has
failed to pay work loss benefits owed to her and medical
bills related to her injuries. Defendant removed the case to
this court based upon diversity jurisdiction.
complaint states that prior to the motor vehicle accident
Plaintiff worked as a registered nurse providing home health
services, but since the accident she has been continually
disabled from working by her treating physicians (although
she admits to continuing to work with one patient until
February 2018). (ECF No. 1-1, PageID.9-11.) Plaintiff
underwent an IME related to her neck and back injuries in
September 2017, and on May 2, 2018 Plaintiff submitted to an
IME with neuropsychologist Dr. Walter Sobota. (ECF No. 17,
PageID. 378-79.) At issue in the present motions are two
additional IMEs Defendant recently scheduled for Plaintiff.
Defendant notified Plaintiff of IMEs to be conducted by Dr.
Christian Schutte, Dr. Jay Kaner, and Dr. Ronald Taylor.
Plaintiff is willing to submit to an IME with Dr. Taylor, who
is a pain medicine doctor, but moves to quash the notice of
IMEs with Dr. Schutte, a neuropsychologist, and Dr. Kaner, a
neurologist, insofar as they relate to her brain injury.
(Id., PageID.382; ECF No. 19-2, PageID.509.)
Defendant moves to compel them.
argues that the notices issued for IMEs with Drs. Schutte and
Kaner should be quashed because they were deficient under
Federal Rule of Civil Procedure 35 in that they did not
describe the scope of the examinations. Rule 35 allows the
court to “order a party whose mental or physical
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). This order “may
be made only on motion for good cause” and “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(2).
argues that Plaintiff is required to submit to the IMEs under
the Michigan No-Fault Automobile Insurance Act and her
insurance policy. Section 3151 of the No-Fault Act states
that “[w]hen the mental or physical condition of a
person is material to a claim that has been or may be made
for past or future personal protection insurance benefits,
the person shall submit to mental or physical examination by
physicians.” Mich. Comp. Laws § 500.3151.
Furthermore, it provides that “[a] personal protection
insurer may include reasonable provisions in a personal
protection insurance policy for mental and physical
examination of persons claiming personal protection insurance
benefits.” Id. Plaintiff's insurance
policy, in turn, requires her to “[s]ubmit to
examination, at [Defendant's] expense, by physicians of
[Defendant's] choice, as often as [Defendant] reasonably
require[s].” (ECF No. 18-4, PageID.484.)
question for the court, then, is what standard governs the
conduction of IMEs in a Michigan no-fault insurance case in
federal court? Defendant argues that under Erie Railroad
Co. v. Tompkins, 304 U.S. 64 (1938), Michigan's
No-Fault Act applies because the issue involves the
parties' rights and is substantive. (ECF No. 18,
PageID.456.) Plaintiff asserts that Defendant's notices
of IMEs must comply with Federal Rule 35 but does not
particularly brief the Erie issue. (ECF No. 17,
in this district facing the question have come to different
conclusions. In Watson v. State Farm Mutual Automobile
Insurance Co., Judge Feikens held that the discovery
provisions of the No-Fault Act apply in a diversity case
because they are “substantive law, supreme over state
and federal court rules.” No. 09-12573, 2010 WL
2287148, at *6 (E.D. Mich. June 4, 2010) (citing
McDougall v. Schanz, 597 N.W.2d 148, 155-56 (Mich.
1999)). He relied on the Michigan Supreme Court's
reasoning in Muci v. State Farm Mutual Automobile
Insurance Co., 732 N.W.2d 88 (Mich. 2007) (Taylor,
C.J.), which held that the No-Fault Act's provisions
regarding medical examinations are substantive under
Michigan's McDougall standard and thus apply
over the Michigan court rule that governs medical
examinations in civil cases generally. Id. at 96.
another judge in this district held the opposite of Judge
Feikens- that Rule 35 governs medical examinations in
no-fault cases. Durmishi v. Nat. Ca. Co., 720
F.Supp.2d 862, 876 (E.D. Mich. June 30, 2010) (Lawson, J.).
That opinion questioned the Michigan Supreme Court's
reasoning in Muci and found that the discovery
provisions in the No-Fault Act are procedural under the
Erie doctrine because they “do no more than
regulate access to proof.” Id. at 874-77.
Magistrate Judge Komives later followed Durmishi,
finding it more persuasive than Watson. Wagner
v. State Farm Mut. Auto. Ins. Co., No. 10-11733, 2010 WL
11552915, at *8 (E.D. Mich. Oct. 14, 2010).
Michigan law, Plaintiff has both a statutory and contractual
duty to submit to IMEs requested by Defendant. See
Roberts v. Farmers Ins. Exch., 737 N.W.2d 332, 339
(Mich. Ct. App. 2007). Likewise, Defendant has “a
statutory right to require that [Plaintiff] undergo physical
and psychological IMEs” insofar as Plaintiff's
“mental and physical conditions [a]re material to her
claims for benefits.” Id. The court does not
think Rule 35, which governs court-ordered medical
examinations in civil cases generally, alters the
parties' substantive rights and duties under Michigan law
in a diversity case. Thus, the court agrees with Judge
Feikens and holds that the discovery provisions of the
No-Fault Act govern the conduction of IMEs in a Michigan
insurance case in federal court.
Plaintiff argues that even under the No-Fault Act it is
unreasonable for Defendant to request medical examinations
related to her brain injury since she already submitted to
Dr. Sobota's neuropsychological examination in May 2018.
Alternatively, she requests that if another such examination
must be conducted then it be done by Dr. Sobota, who is
familiar with her condition. Plaintiff cites three cases from
other districts for the proposition that it would be more
appropriate for Dr. Sobota to examine her again rather than
have a new doctor conduct an IME. (ECF No. 17, PageID.386.)
All interpret Federal Rule 35 and are inapposite to the
present case where the parties' contract of insurance
explicitly states that Defendant can choose the physician to
conduct the IME and is not limited to only one IME.
the court “may enter an order refusing discovery or
specifying conditions of discovery, ” it may do so only
upon a showing of good cause “in order to protect
against annoyance, embarrassment or oppression.” Mich.
Comp. Laws § 500.3159. Michigan presumes that
“[p]hysicians are . . . bound by the methodologies of
their profession and by principles of professional
integrity.” Muci, 732 N.W.2d at 96. Plaintiff
has failed to provide any “demonstrable evidence”
to rebut this presumption. See Id. While Plaintiff
may prefer that Dr. Sobota conduct her IME and would rather
not undergo “a new round of 5 to 7 hour testing by a
new neuropsychologist, ” (ECF No. 21, PageID.545), she
fails to persuade the court that submitting to IMEs with Drs.
Schutte and Kaner will cause her annoyance, embarrassment, or
oppression. Plaintiff does not suggest that any facts in this
case are similar to those in Muci, which she cites,
where “one of [the insurer's] physicians ...