The Arizona Court of Appeals has finally decided an issue which has been the subject of much debate. The court reviewed the question of what the legislature meant when it required the party noticing an independent medical examination turn over, on plaintiff’s request, an independent medical examiner’s “like reports of all earlier examinations of the same condition” under Ariz. R. Civ. P. 35.

In Kelly v. The Hon. John Blanchard, et. al.[1], the Court of Appeals was called on in a special action solely to interpret the phrase in Rule 35: “like reports of all earlier examinations of the same condition.”[2] The plaintiff in Kelly argued, as do most plaintiffs, the phrase means like reports of the same condition “about any individual the physician conducting the independent medical examination has examined.”[3] In line with the majority of defense counsel, the defendant in Kelly argued the phrase only applied to like reports “of the same condition in the individual who is examined.”[4]  The superior court agreed with plaintiff and held plaintiffs were entitled to the examining doctor’s like reports of other individuals with the same condition.

The defendant filed a special action with the Court of Appeals, alleging the lower court exceeded its legal authority with the overbroad interpretation of the rule. After the appellate court concluded the phrase in Rule 35(d)(2)(B) at issue (“like reports of all earlier examinations of the same condition”) is ambiguous and had two plausible meanings, it turned to secondary tools of interpretation.[5] The court found “[b]ecause Rule 35(d)(3) is entirely focused on the individual examined in an IME, the phrase” at question also refers to the individual examined.[6]

The court also relied on the way the rule placed the onus for providing the reports on the party noticing the IME rather than the physicians themselves. The court noted: “If the text of Rule 35 had placed that burden, instead, on the examining physician or psychologist, [plaintiff’s] interpretation would make more sense. But the text does not do so. Instead, placing the production requirement on the requesting party, as Rule 35 does, supports [defendant’s] interpretation.”[7]

The appellate court also relied on the Advisory Committee Notes to Arizona’s federal counterpart of Rule 35, which suggested the purpose for the phrase’s requirement in the rule was to balance out the obligations of the parties in providing prior like reports of the individual examined.[8]  Before the rule, only the examinee was required to provide reports of all examinations of the same condition, but the requesting party was not required to do so.[9] The rule was meant to balance those obligations.[10] But, as the court noted, it would not have done so if the requesting party were then required to produced reports of the same condition of all individuals.[11] The balance would have then been weighted in the other direction.

The court also explored the plethora of unanswered questions which would remain if the plaintiff’s argued position were accepted. The court posited many potential questions could arise if reports of all individuals were required:

How similar does a prior condition in another individual need to be to qualify as the “same condition” in the individual examined? How far can or must the party who requested an IME or the superior court go to protect confidential or privileged information about other individuals who are not party to the lawsuit?  How far must a requesting party go to ensure an independent medical examiner retains, reviews, and produces “like reports” stemming from prior IMEs? These questions—and a host of others—could need answering.[12]

The Court of Appeals agreed with the defense and held “like reports of all earlier examinations of the same condition’ refers to ‘like reports’ of the same condition in the individual examined.”[13]

Takeaway

The Arizona Court of Appeals’ decision in Kelly will serve to protect the privacy of third parties who would have been affected had the lower court’s decision that the independent examiner must produce like reports of other individuals with the same condition stood. Defense counsel has fought a long and difficult battle, and this decision reflects that hard work. However, the court did throw plaintiffs a bone in a final footnote, which indicated the decision is by no means intended to enounce limitations on third-party discovery or prevent a party from pursuing the sought reports under other discovery rules.[14] Essentially, this will not be the end of the plaintiffs’ bar’s attempt to obtain the reports foreclosed here by other means.

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Sources

[1] Kelly v. The Hon. John Blanchard, et. al., No. 1 CA-SA 23-0021 (Ariz. Ct. App. Apr. 27, 2023).

[2] Ariz. R. Civ. P. 35(d)(2)(B).

[3] Kelly, No. 1 CA-SA 23-2001 at ¶ 2, 4.

[4] Id. at ¶ 2.

[5] Id. at ¶ 13.

[6] Id. at ¶ 15.

[7] Id. at ¶ 16.

[8] Id. at ¶¶ 17,  18.

[9] Id. at ¶ 17.

[10] Id.

[11] Id.

[12] Id. at ¶ 19.

[13] Id. at ¶ 3, 23.

[14] Id. at fn. 4.