January 2008 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

ORCP 44 Medical Examinations: (IME or DME, depending on your perspective)

ORCP 44A provides in part that “[w]hen the mental or physical condition ... of a party ... is in controversy, the court may order the party to submit to a physical ... examination by a physician. ... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (Emphasis added.)

In my years of practice, both as a plaintiffs’ attorney and a defense attorney (I was one of the few lawyers to belong to both the OTLA and the OADC at the same time), I became very familiar with ORCP 44. And in the almost 12 years I have been a judge, I have had many occasions to consider this rule, as well, including very recently.

We all know that ORCP 44 examinations (I call them ORCP 44 examinations to avoid the “IME/DME” argument) are very common. Most of the time plaintiff’s counsel has no objection when defense counsel requests an examination, and the court is not then involved because no motion is ever filed. But occasionally plaintiff’s counsel does object. When there are objections, most of the time the objections involve the “terms and conditions” of the examination. But sometimes a plaintiff’s attorney objects, arguing that defense counsel has not shown “good cause.”

When plaintiff’s objection involves the “terms and conditions” of the examination, the bar would be well-served to look at the Multnomah County Circuit Court’s Web site to review the Civil Motion Panel consensus statement about these examinations at www.ojd.state.or.us/mul/civil_motion_panel_consensus.pdf. There is guidance on the Web that might help the lawyers resolve the matter without resorting to a motion, with all the delay resulting therefrom.

When plaintiff’s objection is that defendant has not shown “good cause” it is a more difficult issue. We have all become used to the notion that all the defendant needs to do is request the examination and it will happen. But that is not what ORCP 44A says. Defense counsel should be prepared to articulate some “good cause.”

The court has discretion to grant or deny the motion, which will only be reviewed for an abuse of discretion. See Delcastillo v. Norris, 197 Or App 134, (2005), rev den 338 Or 488 (2005).

The Court of Appeals, in Delcastillo, defined for us the phrase “good cause,” citing the dictionary, as “a cause or reason sufficient in law: one that is based on equity or justice or that would motivate a reasonable man under all the circumstances,” and went on to say that courts may require a physical examination if it appears to promote the "ends of justice."

Practice tip for defense counsel

When you have to file a motion requesting an order directing plaintiff to submit to an examination, you should cite Delcastillo, and be prepared to submit to the court some “good cause,” other than that you disagree with the extent of the injuries as asserted by plaintiff. Do not assume your motion will be granted just because you think you have a “right” to the examination.

Practice tip for plaintiff’s counsel

Object to the examination request only when you have a good reason to do so. If your client has a substantial injury, you might be surprised to see the examination report support your position, making it easier to settle the case. When you must object, focus your argument on the discretionary role of the motion judge, and the requirement that defendant show “good cause.”