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DOCKET NO.: UWY-CV-20-6052844-S : SUPERIOR COURT
JANE DOE PPA JOHN DOE, ET AL. : J. D. OF WATERBURY
V. : AT WATERBURY
RESA WEARABLES INC., ET AL. : AUGUST 3, 2022
OBJECTION TO REQUEST FOR INDEPENDENT MEDICAL EXAMINATION
AND MOTION FOR PROTECTIVE ORDER
In accordance with Practice Book § 13-11 and Connecticut General Statutes § 52-
178a, the plaintiff, Jane Doe PPA John Doe, hereby objects to the defendants’ request that
she submit to an Independent Medical Examination to be performed by Andrew W.
Meisler, Ph. D., 664 Prospect Avenue, Main Entrance, First Floor, Hartford, CT on August
30, 2022 at 10:00 a.m. The plaintiff submits that to require the plaintiff to travel all way to
Hartford is unreasonable and imposes an undue burden on the plaintiff and the Practice
Book does not permit such examination.
First, the plaintiff objects to submitting herself to a medical examination with Dr.
Andrew W. Meisler on the ground that said office is unreasonably far from her place of
residence and would be an undue burden on the plaintiff to travel in excess of eighty-eight
(88) miles round trip for said examination. In Mulligan v. Goodrich, the Court ruled on the
identical issue. Mulligan v. Goodrich, 28 Conn. Sup. 11 (Parskey, J.) (Conn. Super. Ct.
1968). In Mulligan, although the Court recognized that an additional examination would
aid the defense, no showing was made that the proposed physician was the only qualified
MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW
891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519
doctor available for this purpose. Furthermore, the plaintiff was not unwilling to be
examined by a number of qualified physicians other than the physician proposed by the
defendant. The Mulligan court held that §52-178a clearly eliminated discretion in those
instances where a plaintiff interposes a written objection to a particular physician. Id. at
13.
There are a handful of Connecticut trial court decisions
addressing the reasonableness of an objection to a medical
examination based upon distance. The courts have found
such objections reasonable in Bonaldi v. Gilbert, Superior
Court, judicial district of Waterbury, Docket No. 02 0174598
(July 1, 2004, Alvord, J.,) [37 Conn. L. Rptr. 348, 2004
Conn. Super. LEXIS 1775] (plaintiff resided somewhere in
Connecticut, would agree to see certain Waterbury doctors,
and objected to examination by Stratford doctor, also
claiming bias) and in Hennessey v. Lawless, Superior Court,
judicial district of Ansonia/Milford at Milford, Docket No.
01 0076343 (March 31, 2004, Bear, J.) [36 Conn. L. Rptr.
750, 2004 Conn. Super. LEXIS 876] (where plaintiff resided
in Beacon Falls and examining doctor was 75 miles away in
Norwich). Such objections have been found unreasonable in
Serra v. Highland, Superior Court, judicial district of
Waterbury, Docket No. 99 0154900, 2004 Conn. Super.
LEXIS 1733 (July 1, 2004, Alvord, J.) (where plaintiff
resided in Florida but would be willing to be examined in
Waterbury where she would be staying, and examining
doctor was located in Hartford, an approximate 50-mile
round trip) and in Everson v. Rite-Aid of Connecticut,
Superior Court, judicial district of Windham at Putnam,
Docket No. 01 0064871 (January 29, 2004, Swienton, J.) [36
Conn. L. Rptr. 452, 2004 Conn. Super. LEXIS 230] (where
plaintiff resided in Connecticut and examining doctor was
located in Washington, D.C., and would come to
Connecticut for the examination and deposition).
Hansen v. Harrison, 2008 Conn. Super. Lexis 2577 (Conn. Ct. Super. 2008) (Bellis, J.).
MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW
891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519
Furthermore, the plaintiff objects because Connecticut Practice Book §13-11 is
clear. It only authorizes examinations by a “physicians”. Additionally, Conn. Gen. Stat.
§52-178a only authorizes such examinations by “physicians or surgeons.” Based on
understanding and belief, Dr. Andrew W. Meisler is not a physician or a surgeon.
Therefore, it would be inappropriate to have Dr. Meisler examine Jane Doe.
Finally, the plaintiff has objected in writing to the defendant’s request. Under our
laws and rules of practice that is all that is required. Dittman v. Spotten, Docket Number
CV 541013, J.D. of New London at New London (Hurley, J.) (Mar. 13, 1998) (Plaintiff is
not required to submit to an Independent Medical Exam where the plaintiff has objected in
writing); Privee v. Burns, 5 Conn. Ops. 718 (Blue, J.) (June 21, 1999) (Plaintiffs have an
unconditional statutory right to object to any physical examination). In accordance with
Connecticut General Statutes § 52-178a, the Connecticut Practice Book allows the
defendant to request that the plaintiff submit to an independent medical examination. See
CT. PRAC. BK. § 13-11(b) (2014). Section 13-11(b) of the Connecticut Practice Book
states:
[i]n the case of an action to recover damages for personal
injuries, any party adverse to the plaintiff may file and serve
. . . a request that the plaintiff submit to a physical or mental
examination at the expense of the requesting party. That
request shall specify the time, place, manner, conditions and
scope of the examination and the person or persons by whom
it is to be made. Any such request shall be complied with by
the plaintiff unless, within ten days from the filing of the
request, the plaintiff files in writing an objection thereto
specifying to which portions of said request objection is
MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW
891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519
made and the reasons for said objection . . . . No plaintiff
shall be compelled to undergo a physical examination by
any physician to whom he or she objects in writing.
Id. (emphasis added). However, the Connecticut Practice Book gives the plaintiff the
option to object to any such request and further states that “[n]o plaintiff shall be
compelled to undergo a physical examination by any physician to whom she objects in
writing.” Id. Plaintiffs have an unconditional statutory right to object to any physical
examination. Privee v. Burns, 46 Conn. Supp. 301, 335 (1999). “To compel any one, and
especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without
lawful authority, is an indignity, an assault and a trespass [.]” Union Pacific Railway Co. v.
Botsford, 141 U.S. 250, 252 (1891). “Our judicial system has long recognized an interest
in personal autonomy and bodily integrity.” Privee v. Burns, 46 Conn. Supp. at 306-7
(1999) (referencing Washington v. Glucksberg, 521 U.S. 702, 724 (1997)). Moreover,
recent Connecticut case law further supports the plaintiff’s position. In Hayn v. Keith
Aurand Const. the court determined,
But it is the statute and the rule that matter. They
unequivocally say that I may not compel an examination by
a physician objected to in writing. That is enough for me. In
2009, in Rainforest Café, Inc. v. Dept. of Revenue Services,
our Supreme Court held that courts need not fuss over the
unambiguous words of a statute—they should just apply
them unless they yield “absurd or unworkable” results. When
it enacted General Statutes § 1–2z, the legislature implored
us to do the same thing.
Hayn v. Keith Aurand Const., No. KNLCV116011493S, 2014 WL 3805612, at *1.
MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW
891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519
Wherefore, for the foregoing reasons, the defendants’ request for Independent
Medical Examination should be denied and the plaintiff’s object thereto should be
sustained.
THE PLAINTIFF,
______431770______________
Chrysten A. Dufour, Esq.
Moore, O’Brien & Foti
891 Straits Turnpike
Middlebury, CT 06762
(203) 272-5881
Juris No.: 408519
MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW
891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519
CERTIFICATION
I certify that a copy of this document was mailed or delivered electronically or non-
electronically on August 3, 2022 to all attorneys and self-represented parties of record and
to all parties who have not appeared in this matter and that written consent for electronic
delivery was received from all attorneys and self-represented parties receiving electronic
delivery as set forth below:
Stacey Francoline, Esq.
Meehan, Roberts, Turret & Rosenbaum
108 Leigus Road, 1st Floor
Wallingford, CT 06492
Tel. #: 203-294-7800
Email: LMLAWCT@LibertyMutual.com
COUNSEL FOR RESA WEARABLES INC.
______431770_______ ____________
Chrysten A. Dufour
Commissioner of the Superior Court
MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW
891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519
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DOCKET NO.: UWY-CV-20-6052844-S : SUPERIOR COURT JANE DOE PPA JOHN DOE, ET AL. : J. D. OF WATERBURY V. : AT WATERBURY RESA WEARABLES INC., ET AL. : AUGUST 3, 2022 OBJECTION TO REQUEST FOR INDEPENDENT MEDICAL EXAMINATION AND MOTION FOR PROTECTIVE ORDER In accordance with Practice Book § 13-11 and Connecticut General Statutes § 52- 178a, the plaintiff, Jane Doe PPA John Doe, hereby objects to the defendants’ request that she submit to an Independent Medical Examination to be performed by Andrew W. Meisler, Ph. D., 664 Prospect Avenue, Main Entrance, First Floor, Hartford, CT on August 30, 2022 at 10:00 a.m. The plaintiff submits that to require the plaintiff to travel all way to Hartford is unreasonable and imposes an undue burden on the plaintiff and the Practice Book does not permit such examination. First, the plaintiff objects to submitting herself to a medical examination with Dr. Andrew W. Meisler on the ground that said office is unreasonably far from her place of residence and would be an undue burden on the plaintiff to travel in excess of eighty-eight (88) miles round trip for said examination. In Mulligan v. Goodrich, the Court ruled on the identical issue. Mulligan v. Goodrich, 28 Conn. Sup. 11 (Parskey, J.) (Conn. Super. Ct. 1968). In Mulligan, although the Court recognized that an additional examination would aid the defense, no showing was made that the proposed physician was the only qualified MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW 891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519 doctor available for this purpose. Furthermore, the plaintiff was not unwilling to be examined by a number of qualified physicians other than the physician proposed by the defendant. The Mulligan court held that §52-178a clearly eliminated discretion in those instances where a plaintiff interposes a written objection to a particular physician. Id. at 13. There are a handful of Connecticut trial court decisions addressing the reasonableness of an objection to a medical examination based upon distance. The courts have found such objections reasonable in Bonaldi v. Gilbert, Superior Court, judicial district of Waterbury, Docket No. 02 0174598 (July 1, 2004, Alvord, J.,) [37 Conn. L. Rptr. 348, 2004 Conn. Super. LEXIS 1775] (plaintiff resided somewhere in Connecticut, would agree to see certain Waterbury doctors, and objected to examination by Stratford doctor, also claiming bias) and in Hennessey v. Lawless, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 01 0076343 (March 31, 2004, Bear, J.) [36 Conn. L. Rptr. 750, 2004 Conn. Super. LEXIS 876] (where plaintiff resided in Beacon Falls and examining doctor was 75 miles away in Norwich). Such objections have been found unreasonable in Serra v. Highland, Superior Court, judicial district of Waterbury, Docket No. 99 0154900, 2004 Conn. Super. LEXIS 1733 (July 1, 2004, Alvord, J.) (where plaintiff resided in Florida but would be willing to be examined in Waterbury where she would be staying, and examining doctor was located in Hartford, an approximate 50-mile round trip) and in Everson v. Rite-Aid of Connecticut, Superior Court, judicial district of Windham at Putnam, Docket No. 01 0064871 (January 29, 2004, Swienton, J.) [36 Conn. L. Rptr. 452, 2004 Conn. Super. LEXIS 230] (where plaintiff resided in Connecticut and examining doctor was located in Washington, D.C., and would come to Connecticut for the examination and deposition). Hansen v. Harrison, 2008 Conn. Super. Lexis 2577 (Conn. Ct. Super. 2008) (Bellis, J.). MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW 891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519 Furthermore, the plaintiff objects because Connecticut Practice Book §13-11 is clear. It only authorizes examinations by a “physicians”. Additionally, Conn. Gen. Stat. §52-178a only authorizes such examinations by “physicians or surgeons.” Based on understanding and belief, Dr. Andrew W. Meisler is not a physician or a surgeon. Therefore, it would be inappropriate to have Dr. Meisler examine Jane Doe. Finally, the plaintiff has objected in writing to the defendant’s request. Under our laws and rules of practice that is all that is required. Dittman v. Spotten, Docket Number CV 541013, J.D. of New London at New London (Hurley, J.) (Mar. 13, 1998) (Plaintiff is not required to submit to an Independent Medical Exam where the plaintiff has objected in writing); Privee v. Burns, 5 Conn. Ops. 718 (Blue, J.) (June 21, 1999) (Plaintiffs have an unconditional statutory right to object to any physical examination). In accordance with Connecticut General Statutes § 52-178a, the Connecticut Practice Book allows the defendant to request that the plaintiff submit to an independent medical examination. See CT. PRAC. BK. § 13-11(b) (2014). Section 13-11(b) of the Connecticut Practice Book states: [i]n the case of an action to recover damages for personal injuries, any party adverse to the plaintiff may file and serve . . . a request that the plaintiff submit to a physical or mental examination at the expense of the requesting party. That request shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. Any such request shall be complied with by the plaintiff unless, within ten days from the filing of the request, the plaintiff files in writing an objection thereto specifying to which portions of said request objection is MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW 891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519 made and the reasons for said objection . . . . No plaintiff shall be compelled to undergo a physical examination by any physician to whom he or she objects in writing. Id. (emphasis added). However, the Connecticut Practice Book gives the plaintiff the option to object to any such request and further states that “[n]o plaintiff shall be compelled to undergo a physical examination by any physician to whom she objects in writing.” Id. Plaintiffs have an unconditional statutory right to object to any physical examination. Privee v. Burns, 46 Conn. Supp. 301, 335 (1999). “To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault and a trespass [.]” Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 252 (1891). “Our judicial system has long recognized an interest in personal autonomy and bodily integrity.” Privee v. Burns, 46 Conn. Supp. at 306-7 (1999) (referencing Washington v. Glucksberg, 521 U.S. 702, 724 (1997)). Moreover, recent Connecticut case law further supports the plaintiff’s position. In Hayn v. Keith Aurand Const. the court determined, But it is the statute and the rule that matter. They unequivocally say that I may not compel an examination by a physician objected to in writing. That is enough for me. In 2009, in Rainforest Café, Inc. v. Dept. of Revenue Services, our Supreme Court held that courts need not fuss over the unambiguous words of a statute—they should just apply them unless they yield “absurd or unworkable” results. When it enacted General Statutes § 1–2z, the legislature implored us to do the same thing. Hayn v. Keith Aurand Const., No. KNLCV116011493S, 2014 WL 3805612, at *1. MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW 891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519 Wherefore, for the foregoing reasons, the defendants’ request for Independent Medical Examination should be denied and the plaintiff’s object thereto should be sustained. THE PLAINTIFF, ______431770______________ Chrysten A. Dufour, Esq. Moore, O’Brien & Foti 891 Straits Turnpike Middlebury, CT 06762 (203) 272-5881 Juris No.: 408519 MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW 891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519 CERTIFICATION I certify that a copy of this document was mailed or delivered electronically or non- electronically on August 3, 2022 to all attorneys and self-represented parties of record and to all parties who have not appeared in this matter and that written consent for electronic delivery was received from all attorneys and self-represented parties receiving electronic delivery as set forth below: Stacey Francoline, Esq. Meehan, Roberts, Turret & Rosenbaum 108 Leigus Road, 1st Floor Wallingford, CT 06492 Tel. #: 203-294-7800 Email: LMLAWCT@LibertyMutual.com COUNSEL FOR RESA WEARABLES INC. ______431770_______ ____________ Chrysten A. Dufour Commissioner of the Superior Court MOORE, O’BRIEN & FOTI ● ATTORNEYS AT LAW 891 STRAITS TURNPIKE ● MIDDLEBURY, CT 06762 ● TEL. (203) 272-5881 ● JURIS NO. 408519