United States District Court, S.D. Indiana, Indianapolis Division
In Re COOK MEDICAL, INC., IVC FILTERS MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION MDL No. 2570 This Document Relates to Case No. 1:14-cv-06016-RLY-TAB
ORDER DENYING THE COOK DEFENDANTS' REQUEST FOR
INDEPENDENT MEDICAL EXAM
Baker United States Magistrate Judge.
Cook Defendants have asked the Court to order Plaintiff
Elizabeth Hill to undergo an independent medical exam that
would require Hill to submit to (1) an inferior vena cava
venogram and (2) an extended upper endoscopy. The Cook
Defendants' reasoning for this request rests largely on
the fact that Hill previously underwent these procedures. In
response to the Cook Defendants' request that Hill be
forced to undergo this invasive procedure, her lawyer
remarked at the May 12, 2017, status conference that just
because a soldier has done two tours in Afghanistan
doesn't mean he wants to go back. The Court agrees with
Hill. As explained below, there is no good cause for the
Court to order Hill to submit to either procedure over her
parties agree that Hill will undergo two IMEs, a
cardiovascular IME in Florida and a gastrointestinal IME in
North Carolina. The Cook Defendants agree to pay for all
associated costs, including travel for Hill and a companion.
For the cardiovascular IME, the parties agree Hill will
submit to a physical examination and a lower extremity venous
Doppler ultrasound, but disagree on whether she must submit
to an IVC venogram. For the gastrointestinal IME, the parties
agree Hill will submit to a physical examination, blood draw
for laboratory testing, and abdominal CT (with oral and IV
contrast), but disagree on whether she must submit to an
extended upper endoscopy.
Cook Defendants asked the Court in a letter brief and at oral
argument held during the May 12 status conference to order
Hill, over her objections, to submit to an IVC venogram
during the cardiovascular IME and an extended upper endoscopy
during the gastrointestinal IME. Rule 35 permits the Court to
order Hill to submit to an IME and 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(a)(2)(B). “Before entering such an
order, however, the Court must additionally find the
existence of ‘good cause' for the testing.”
Id. at 35(a)(2)(A); Flomo v. Brigestone Americas
Holding, Inc., No. 1:06-CV-627-WTL-JMS, 2009 WL 4728021,
at *1 (S.D. Ind. Dec. 2, 2009). For determining good cause,
courts have looked at whether other discovery methods have
been utilized and whether the requested examination is
“needlessly duplicative, cumulative, or
invasive.” McDonald v. Southworth, No.
1:07-CV-217-JMS-DFH, 2008 WL 2705557, at *3 (S.D. Ind. July
10, 2008). Ultimately, “examination orders under Rule
35 rest in the sound discretion of the Court.”
Id. (citing Bucher v. Krause, 200 F.2d 576,
584 (7th Cir. 1953)).
The Court will not order Hill to undergo an IVC
venogram involves injecting a contrast dye agent into
Hill's veins to allow a doctor to view her veins through
radiographic means. This procedure carries risks associated
with the contrast and typically requires informed consent,
which Hill has not given. Hill's medical expert, Dr.
Marmureanu, relied on a 2013 IVC venogram to conclude Hill
suffered permanent injury to her vena cava as a result of an
IVC filter. Hill underwent an IVC venogram in 2011 and 2013,
and her life care planner, Leigh Anne Levy, recommends Hill
receive this test every five years to monitor the injury,
which Defendants point out would be in 2018.
Cook Defendants argue that Hill should submit to an IVC
venogram as part of her cardiovascular IME since Hill relies
upon the 2013 IVC venogram to prove her injury, Hill is due
for another IVC venogram next year, and Cook will pay for it.
Plaintiffs object to this request because Hill does not want
Cook's physicians injecting this contrast into her veins.
Moreover, Plaintiffs argue the procedure invades the
integrity of Hill's body and there are medical risks
associated with the contrast dye. Particularly, Hill has
expressed concern about cumulative effects. Defendants are
quick to point out that Hill was injected with contrast for
prior CT scans in 2010, 2011, 2013, and 2015. Also,
Defendants point out that Hill will be injected with contrast
for the abdominal CT at her gastrointestinal IME in North
a foreign substance into the body is an invasive medical
procedure. The law is sensitive to one's autonomy with
respect to such procedures. Absent a compelling need, courts
are generally reluctant to subject a plaintiff to
“lengthy, invasive, painful and stressful
testing.” McDonald, 2008 WL 2705557, at *4. In
the Court's view, compelling Hill to submit to a new IVC
venogram would be duplicative, as the Cook Defendants have
records of Hill's 2013 IVC venogram. Understandably, the
Cook Defendants are concerned about the medical evidence
underlying Dr. Marmureanu's conclusion, but the Cook
Defendants have other options. For example, rather than force
Hill to submit to an additional test, the Cook Defendants can
produce their own medical expert to review the 2013 IVC
venogram and opine on Hill's injuries. Furthermore,
Hill's refusal to consent to this test may well be
evidence admissible at trial. The Cook Defendants' need
is therefore not compelling.
Hill consents to undergo two IMEs and reasonably objects to
Cook's physicians inserting contrast into her body-twice.
Just because Hill consented to being injected with contrast
dye once does not mean she must be injected with contrast dye
twice. Hill is concerned about the cumulative effects of the
contrast on her body. Hill's prior venograms offered her
a medical benefit, while the proposed IME venogram does not.
The fact that an IVC venogram may be conducted for monitoring
purposes next year is not indicative of a compelling need
now. As Hill's counsel noted, simply because Hill's
life planner recommended this test in the future does not
assure that it will occur.
Court finds no good cause to order Hill to submit to an IVC
venogram without her consent and over her objection. The Cook
Defendants' request that Hill be forced to submit to an
IVC venogram is needlessly duplicative, cumulative, invasive
and, therefore, denied.
The Court will not order Hill to undergo an extended upper
Cook Defendants' request to compel Hill to undergo a
forced extended upper endoscopy fares no better. This
procedure involves sedation by anesthesia and the insertion
of a long, flexible scope down Hill's throat to allow a
doctor to view her upper gastrointestinal tract. This
procedure carries risks associated with both the anesthesia
and the scope, and typically requires informed consent, which
again, Hill has not given. Hill's medical expert, Dr.
Marmureanu, relied on a 2014 upper endoscopy to conclude Hill
suffered a narrowing in her bowel, referred to as duodenal
stenosis, as a result of the IVC filter. ...