Hiestand vs. Kreiser, et al No. 2009-01958

Civil Action – Discovery – Sanctions – Discretion of Court – Violation of Court Order – Physical or Mental Examination – Earning Capacity Evaluation – Bad Faith – Costs.

 

1. Discovery sanctions generally are imposed when a court order has been violated, although the rule authorizing sanctions does allow for sanctions when there has been a discovery violation.

2. The decision whether to sanction a party, and if so the severity of such sanction, is vested in the sound discretion of the trial court.  Sanctions which may be imposed for the violation of discovery rules are disciplinary tools used to ensure compliance with the discovery rules.

3. The imposition of sanctions always is subject to a balancing test and a weighing of various factors.  It is clear that in the exercise of judicial discretion in formulating an appropriate sanction order, the court is required to select a punishment which fits the crime.

4. In the majority of cases where sanctions have been imposed, there almost universally first has been a violation of one or more court orders.

5. Our case law dealing with sanctions consistently has held that trial courts should consider (1) the nature and severity of the discovery violation; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party, and (4) the ability to cure the prejudice.

6. When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by an examiner or to produce for examination the person in the party’s custody or legal control.

7. When the earning capacity of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to an evaluation by a suitably licensed or certified evaluator or to produce for evaluation the person in the party’s custody or legal control.

8. The Court denied Defendants’ request for reimbursement of the no-show fees for the IME and for the vocational examination.

9. It was clear to the Court that it was within its discretion to require Plaintiff to attend both an IME and a vocational examination.  Consequently, the Court ordered the Plaintiff to attend both examinations within sixty (60) days after service of its Order.  The Court further advised the Plaintiff that failure to comply with its Order could result in sanctions.  It also noted that Defendants were responsible for any travel costs associated with the examinations.

Defendant’s Motion to Compel IME, Vocational Examination and Sanctions.  C.P. of Lebanon County, Civil Action-Law, No. 2009-01958.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION No: 2009-01958

MICAIAH HIESTAND, Plaintiff

v.

DOUGLAS A. KREISER and ANGELA D. CRUZ a/k/a ANGELA D. CRUZ-REYES, Defendants

ORDER

And now, to wit, this 7^th day of March, 2014, upon consideration of the Defendants’ Motion to Compel IME, Vocational Exam, and Sanctions in the Form of “No-Show” Fees, the Motion is GRANTED IN PART and DENIED IN PART as follows:

I. Plaintiff shall attend an independent medical examination at the office of Dr. Peter Badgio located in Bryn Mawr, PA within sixty (60) days after service of this Order.  Defendants are responsible for any travel costs.  Plaintiff is advised that failure to comply with this directive may result in sanctions upon further application to the Court.

II. Plaintiff shall attend a vocational exam at the office of Dr. Jasen Walker located in Valley Forge, PA within sixty (60) days after service of this Order.  Defendants are responsible for any travel costs.  Plaintiff is advised that failure to comply with this directive may result in sanctions upon further application to the Court.

III. Defendants’ request for reimbursement of “no-show” fees in the amounts of $2,850.00 and $750.00 are both denied.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

W. Scott Henning, Esq. for the Plaintiff

Jason C. Giurintano, Esq. for the Defendants

OPINION, KLINE, J., MARCH 7, 2014

Before the Court is the Defendants’ Motion to Compel Independent Medical Examination (hereinafter “IME”), Vocational Exam, and Sanctions in the Form of “No-Show” Fees.  For the reasons set forth herein, we grant in part and deny in part the Motion, as specified below.

FACTS AND PROCEDURAL HISTORY

The instant case involves an automobile collision.  On January 7, 2010, Plaintiff filed a Civil Complaint alleging that Defendant Angela Cruz-Reyes was the operator of a vehicle that collided with Plaintiff’s vehicle, and Defendant Douglas Kreiser was the owner of the vehicle.  The Complaint raises one count of negligence and one count alleging reckless/outrageous conduct against Defendant Angela Cruz-Reyes.  The Complaint also raises one count of negligent entrustment against Douglas Kreiser.  Defendants filed an Answer to the Complaint and New Mater on February 26, 2010.  Plaintiff filed a Reply to New Matter on March 4, 2010.

On November 22, 2013, Defendants filed their Motion to Compel IME, Vocational Exam, and Sanctions in the Form of “No-Show” Fees.  A rule to show cause was issued upon the Plaintiff to show cause why the relief requested should not be granted.  Plaintiff filed a reply on December 19, 2013.

The matter was listed for the February 2014 Term of Argument Court.  The Defendants filed a brief in support of their position on February 3, 2014.  Plaintiff filed a brief in support of his position on February 10, 2014.  Oral argument was heard on February 28, 2014.  The case is thus before us and ripe for disposition.

DISCUSSION

“No-Show” Fees

Defendants first request the reimbursement of two fees.  Defendants assert an IME was scheduled for the Plaintiff with neuropsychologist Ruben J. Echemendia, Ph.D. on April 24-25, 2012 at his office in State College, PA.  On April 18, 2012, a paralegal of defense counsel faxed and mailed correspondence to Plaintiff’s counsel reminding him of the IME.  Plaintiff failed to attend his appointment.  As a result, Dr. Echemendia’s office charged defense counsel $2,850.00 for the fees associated with Plaintiff’s failure to attend his appointment.  Defendants have paid the $2,850.00 fee, and Defendants’ counsel has requested reimbursement of the fee.  Plaintiff has not paid to date.

Defendants also assert that defense counsel scheduled a vocational examination for Plaintiff with defense expert Dr. Jasen Walker.  On October 15, 2013, it was confirmed that Plaintiff would undergo a vocational exam on October 28, 2013 at the offices of Dr. Walker in Valley Forge, PA.  Dr. Walker also sent Plaintiff’s counsel a fax to confirm the appointment.  Once again, Plaintiff did not attend the appointment, and Defendants have incurred a $750.00 fee as a result of Plaintiff’s failure to attend.  Defendants request reimbursement of the $750.00 fee.

In Plaintiff’s brief, Plaintiff’s counsel acknowledges that the parties arranged for the scheduling of an exam with Dr. Echemendia.  Plaintiff’s counsel argues that Plaintiff resides in Manheim, Pennsylvania, and at the last moment, he was without adequate transportation to be able to attend the examination as he does not own a motor vehicle, and his travel arrangements fell through.  Furthermore, Plaintiff’s counsel states that Plaintiff voluntarily agreed to attend a vocational interview with Dr. Walker; however, he again experienced transportation difficulties.  Plaintiff’s counsel argues that Plaintiff did not act in bad faith when not attending the two appointments.  Therefore, he should not be held responsible for any fees.  Further, Plaintiff did not make any agreements to be responsible for any cancellation fees.

Pa.R.C.P. 4019 permits a court to make an appropriate sanction order in certain situations upon motion of a party.  Subdivision (a)(1)(viii) provides that an order can be entered if “a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.” Pa.R.C.P. 4019(a)(1)(viii).

In the instant case, there was never a Court Order directing the Plaintiff to attend an IME or a vocational exam.  However, subdivision (a)(viii) also permits a court to enter a sanction order whenever there is a failure to comply with the Rules of Court governing discovery.

“Discovery sanctions generally are imposed when a court order has been violated, although the rule authorizing sanctions does allow for sanctions when there has been a discovery violation.” McGovern v. Hospital Service Ass’n of Northeastern Pennsylvania, 785 A.2d 1012 (Pa. Super. 2001).

A comment to the rule states,

Subdivision (a)(viii) is a blanket authorization to the court to enter a sanction order whenever there is a failure to make discovery or to obey an order of the court. The preceding subsections of subdivision (a) set out a series of specific violations of Rules 4004, 4005, 4007.1, 4007.2, 4009 and 4010 which are included in the blanket authorization. These are only illustrations and do not limit the all-inclusive coverage of subsection (viii).

Comment to Pa.R.C.P. 4019.

“The decision whether to sanction a party, and if so the severity of such sanction, is vested in the sound discretion of the trial court.” McGovern, 785 A.2d at 1015.  Sanctions which may be imposed for the violation of discovery rules are disciplinary tools used to ensure compliance with the discovery rules.  Christian v. Pennsylvania Financial Responsibility Assigned Claims Plan, 686 A.2d 1, 6 (Pa. Super. 1996).

…[T]he imposition of sanctions always is subject to a balancing test and a weighing of various factors…”[I]t is clear that in the exercise of judicial discretion in formulating an appropriate sanction order, the court is required to select a punishment which ‘ fits the crime.’ ” In the majority of cases where sanctions have been imposed, there almost universally first has been a violation of one or more court orders.

…

…Our case law dealing with sanctions consistently has held that trial courts should consider at the least: (1) the nature and severity of the discovery violation; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party; and (4) the ability to cure the prejudice.

McGovern, 785 A.2d at 1019.

In the instant case there was never a Court Order directing the Plaintiff to submit to an IME or a vocational exam.  There has not been a failure to make discovery as the Court has not found a violation of a particular discovery rule.  Defendants have not cited any case law compelling mandatory reimbursement.  It appears that the Plaintiff has not acted in bad faith.  Unfortunately, travel arrangements fall through from time to time.  As this Jurist even stated at oral argument, defense counsel could have provided Plaintiff with bus tickets to attend the appointments.  Any potential prejudice can be cured by ordering the Plaintiff to undergo the evaluations.  Had a Court Order already been entered directing the Plaintiff to attend the two appointments, then the Court’s decision most likely would have been different.  However, the Court will deny the request for reimbursement of the two “no-show” fees.

IME and Vocational Exams

The Defendants also request the Court to require Plaintiff to undergo an IME and a vocational exam.  The Defendants contend that Plaintiff has placed his physical and mental condition directly at issue by alleging personal injury to his brain from the accident.  As a result of the Plaintiff not attending his appointment with Dr. Echemendia, Dr. Echemendia will not reschedule Plaintiff’s IME.  Therefore, Defendants must utilize another IME physician, Peter C. Badgio, MD, whose office is located in Bryn Mawr, Pennsylvania.

Furthermore, Defendants argue that Plaintiff alleges that the accident has affected his ability to acquire and maintain gainful employment, thereby creating an alleged claim for lost wages and a loss of earning capacity.  Plaintiff has provided Defendant with an expert vocational report which was prepared after Plaintiff met with his own expert; however, Defendants want Plaintiff also to attend a vocational examination with a defense expert.

Defendants also argue that the failure to submit to an IME and a vocational examination prejudices the Defendants as it hinders their ability to formulate a defense.  Defendants ask the Court to order Plaintiff to attend both an IME with Dr. Badgio and a vocational exam with Dr. Walker within 20 days.

Plaintiff’s counsel states in his brief that Plaintiff is willing to attend an IME with Dr. Badgio.  Plaintiff’s counsel also states that Plaintiff has informed him that he “will make every effort to attend the re-scheduled vocational interview.”

Pa.R.C.P. 4010 provides,

When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by an examiner or to produce for examination the person in the party’s custody or legal control.

Pa.R.C.P. 4010.  Furthermore,

When the earning capacity of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to an evaluation by a suitably licensed or certified evaluator or to produce for evaluation the person in the party’s custody or legal control.

Pa.R.C.P. 4010.1.

It is clear that requiring Plaintiff to submit to these examinations is within the Court’s discretion, and the Court will grant the Defendants’ request to require Plaintiff to attend both an IME and vocational exam.  Plaintiff’s counsel acknowledges that Plaintiff is willing to undergo the examinations.  As the present time, there have not been any objections as to the location of the two appointments. Furthermore, Defendants are responsible for any travel costs associated with the appointments.

Accordingly, within sixty (60) days after service of the attached Order, the Plaintiff shall attend an IME with Dr. Peter C. Badgio at his office located in Bryn Mawr, PA.  Further, within sixty (60) days after service of the attached Order, the Plaintiff shall attend a vocational exam at the office of Dr. Jasen Walker located in Valley Forge, PA.  Plaintiff is advised that failure to comply with these directives may result in sanctions upon further application to the Court.  We will enter an Order consistent with the foregoing.