April 2015

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© 2015 The following articles were originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (April 2015, Vol. 36, No. 4). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, PO Box, Las Vegas, NV 89125. Phone: (702) 387-6011.

Impress (or Lose) Friends with this E-Service Trivia

By Tamara Beatty Peterson, Esq. and Benjamin K. Reitz, Esq.

Often, to identify a future filing deadline, a litigator must identify the date of service of some document filed previously by opposing counsel. In practice, the date of service is often indicated by the date written in a signed “Certificate of Service” attached to the document. Certificates of Service are not mandatory and failure to attach one does not affect the validity of service. NRCP 5(b)(4). Nonetheless, filings typically include them as proof of service.

Like the three days added to response times as homage to the days of snail mail, the idea of a “Certificate of Service” is outdated. Using the court’s Electronic Filing System (EFS), either you sent the document electronically or you did not. The United States District Court for the Northern District of California has recognized this reality, stating that if all parties have counsel and all the counsel are registered for ECF, then a Certificate of Service is not required or desired by the court: “Notice to those parties will be provided by the court’s electronic filing system.” N.D. Cal. Civ. R. 5-5, Commentary.

Under NRCP 5(b)(2)(D), electronic service “is complete on transmission.” This creates ambiguity because there are actually two “transmissions”: 1) when the party transmits the document to the court and, 2) later, when the court transmits the file-stamped copy to all parties. Like dropping the document in the mail, one would think the effective “transmission” occurs when a party submits a document to the court for filing and service. However, our specific electronic service rules suggest otherwise.

In Nevada, rules for electronic service—which differ from rules for electronic filing—are located in the Nevada Electronic Filing and Conversion Rules (NEFCR). Read in conjunction, NEFCR 9(b) and (f) state that the date of service is the date the electronic filing system transmits an email notification to the parties with a link to the document. Section 9(f) goes on to say that a document submitted after the court is closed for the day will be deemed served when the court is next open for business (i.e. when the court is available to send the file-stamped copy to all parties). NEFCR 9(f). Any attorney that has e-filed in Clark County understands that, if you file late at night, the clerk may not file-stamp and email the document to the all parties until the following morning. If the date of the email transmission from the court to the parties differs from the date on the certificate of service, the email appears to control for calculating the time to respond.

The Eighth Judicial District Court Rules provide additional guidance on e-service. According to EDCR 8.03 and 8.05, the date of filing and the date of service are each governed by the date of a given electronic “transmission.” Compare EDCR 8.03 and EDCR 8.05. The date of filing a document is the date of transmission to the court. EDCR 8.03(a). The date of service of a document is the date of transmission from the clerk to all the parties. See EDCR 8.05 and 8.06. The transmission of the service—and, therefore, the date of the service—is the date the parties receive the email from the court’s e-filing system, not the date the filer submits the document to the clerk or the date written in the attached certificate of service.

In fact, EDCR 7.26(c)(4) essentially states that the clerk’s email is the new and improved certificate/proof of service when service is made electronically: “Proof of service may be made by…[any method] satisfactory to the court…When service is made by the court’s electronic filing system by e-mail, the e-mail will contain a link to the file stamped document…[and] all names and e-mail addresses will be listed in the body of the e-mail.” The list of names and email addresses mirrors the information that would otherwise be available in a written certificate of service. Like under NRCP 5, a certificate of service is not required by the EDCR. EDCR(c). Instead, the court’s email appears to constitute service itself and “proof [of service] satisfactory to the court,” should the need for proof arise. EDCR 7.26(c)(2).

Other nuances in the EDCR suggest that written certificates of service no longer control:

First, EDCR 8.05(a) states that “[a]n E-Filed document accepted by the Clerk will be electronically served on all parties registered in that case through the E-Filing System.” EDCR 8.05(a). “Will be,” in this case, must mean “in the future,” as we know from EDCR 8.03 that the Clerk is not required to accept the document; thus, service could not have occurred at the time the filer submitted the document to the clerk.

Second, “[p]roof of Electronic Service must state that the date and time of the electronic service in place of the date and place of deposit in the mail.” EDCR 8.05(i). It would be impossible to identify the date and time of electronic service in a written certificate of service filed with the original document. The notification email transmitted from the clerk is the only document that captures the precise time and date.A close read of the e-service rules suggest that service is complete at the time of the email transmission of the file-stamped document by the court to the parties, and the email itself is adequate proof of service. So, not only are written certificates of service not required under Nevada rules, but they appear to be a duplication of efforts—and may be inaccurate—when service is made by electronic means through the EFS. The Eighth Judicial District Court is currently considering changes to Nevada’s e-service rules. With such revisions, perhaps the perceived need to attach a written certificate of service will be avoided altogether in the future.

A close read of the e-service rules suggest that service is complete at the time of the email transmission of the file-stamped document by the court to the parties, and the email itself is adequate proof of service. So, not only are written certificates of service not required under Nevada rules, but they appear to be a duplication of efforts—and may be inaccurate—when service is made by electronic means through the EFS. The Eighth Judicial District Court is currently considering changes to Nevada’s e-service rules. With such revisions, perhaps the perceived need to attach a written certificate of service will be avoided altogether in the future.

Now, go make some friends.

Tamara Beatty Peterson is a Partner and Benjamin K. Reitz is an Associate in the Commercial Litigation group at Brownstein Hyatt Farber Schreck, LLP. Their practice includes a wide range of complex business disputes, class actions, and appeals.

Low Property Damage Can Still Cause Significant Bodily Injury

By Lawrence C. Hill, Esq. and Sean P. O’Callaghan

In the evaluation of personal injury claims, insurance carriers often stand firm on the position that minimal vehicle damage means there can only be minimal bodily injury to those involved. It is a contention that both plaintiff and defense attorneys who litigate personal injury cases vehemently struggle to negate or uphold in cases of minimal vehicle damage. Consequently, these types of cases have served as a bedrock for countless, costly personal injury litigation.

It seems logical enough to assume that an accident with limited visible damage to the vehicles involved would not result in any substantial injuries. However, there have been a number of studies conducted on the subject and the majority have shown that there is a negligible correlation between vehicle damage and the extent of bodily injury in motor vehicle accidents, and as vehicle bumper technology advances, the correlation continues to diminish.

MIST protocol

As is true with any business model, insurance companies have protocols and strategies to control their exposure. One such protocol, relevant to this discussion, is MIST (Minor Impact Soft Tissue) protocol. As the name suggests, MIST protocol treats “minor impact” accidents and “soft tissue” injuries as exclusive to one another and uses the protocol as a basis for segmenting claims resulting from accidents producing property damage less than a predetermined dollar amount, generally set at $1,000. Intrinsic to MIST protocol is the synonymous use of the terms “minimal damage accidents” and “minor impact accidents,” thus, characterizing “minimal damage accidents” as those that produce only soft tissue injuries, which research has shown to be inaccurate.

In addition to successfully controlling insurance company exposure, the strategy is often successful in discouraging costly litigation, despite studies indicating that there is a lack of relationship between vehicle damage and occupant injury in an accident. In many cases of minimal vehicle damage, it is possible for insurance defense counsel to use photographs to convince the jury that bodily injury is unsubstantiated. Faced with the cost of obtaining experts to sufficiently educate a jury, plaintiff’s attorneys will often shy away from litigating these cases or even avoid taking them altogether, often leaving “low property damage” claimants with legitimate injuries without representation in prosecuting their claims.

Evaluation of occupant bodily injury

While insurance carriers have a proclivity to evaluate bodily injury based on visible damage to the occupied vehicle, it is important for attorneys and claimants to understand that damage to a vehicle involved in an accident falls short of being an indicator of the extent to which the occupants sustain injury.

Accident reconstruction experts determine the severity of a vehicle to vehicle impact by calculating the change in velocity at the time of a collision, referred to as the “Delta V,” a calculation involving a number of variables including velocity, mass, weight, the ability of the involved vehicles to dissipate the energy of the impact, and the initial position of the occupant in relation to seatbelts and airbags. Simply put, Delta V is the change in a vehicle’s speed when it strikes or is stricken by another vehicle. In essence, the greater the change in speed, or Delta V, the greater the chance of substantial bodily injury, but this does not mean that an accident resulting in a low Delta V is one without injurious results.

One particular study has shown that an impact with a Delta V as low as 2.5 mph may produce symptoms and that vehicle damage may not occur until 8.7 mph. To clarify the meaning of this study’s conclusion, think of an egg dropped from a short distance to the ground. While the egg’s shell may maintain its structural integrity without cracking, one can be certain that the egg’s contents were jolted upon impact, just as a vehicle’s occupants would be jolted in an accident producing minimal vehicle damage.

While accident reconstruction experts may be able to determine the severity of collisions, they lack medical training, education, or experience that qualify them to speak to the injuries of the occupants. In other words, a professional with expertise in one particular field may not provide testimony on subject matter in which they are not experts. See Hallmark v. Eldridge, 189 P.3d 646, 124 Nev. 492 (Nev., 2008).

Thus, bodily injury analysis must be performed by a medical expert, who must consider many variables different from those used by the accident reconstruction expert, including the occupant’s sex, age, bone and joint strength; geometric dimensions; muscular stimulation in anticipation of the impact; etc.

Impact resilience of modern vehicles

The utilization of expert testimony has quickly become a necessity in asserting the rights of individuals involved in accidents producing minimal property damage. This is due largely to the incredible ability of modern vehicles to absorb the energy of an impact without sustaining visible damage. While this is good news in terms of the cost of vehicle repairs, it does not bode well for the occupants to whom that energy is transferred. With the increasing technology used to maximize the resilience of vehicle bumpers, there is an increasing threshold for impact severity and vehicle damage, while the threshold for occupant injury has remained largely stagnant. What this means for claimants is an increased number of those categorized as MIST claims are poised to be compensated minimally for their injuries.

Litgation issues

The admissibility of evidence depicting low property damage is a highly contested issue in numerous litigated matters. There is question whether or not such evidence may create unfair prejudice and whether its admissibility is proper before a jury.

In Moor v. Lee, 210 P.3d 753 (Nev., 2007), the Supreme Court of Nevada upheld the admissibility of photographs that depict minimal damages of the vehicle, and the admission of the photographs was highly favorable to the defense.

However, in Rish v Simao, Case No 07A539455 (NV 8th Jud. Dist. Ct. 2007), in which plaintiff sustained minimal property damage, plaintiff’s counsel sought to exclude evidence of property damage and damage estimates from admission due to its prejudicial effects, and are thus improper to be introduced. The District Court granted plaintiff’s motion in limine to exclude the admission of photographs and repair invoices and limited the defense’ medical expert in offering opinions extrapolated from property damage. This case is on appeal to the Supreme Court of Nevada (No. 58504, Sept. 4, 2012).Low property damage accidents continue to be a source of contention for litigants due to its complexity and shortage of precedents. Therefore, counsels should not make the assumption that low property damage cannot result in significant bodily injury should such cases ripen into litigation.

Low property damage accidents continue to be a source of contention for litigants due to its complexity and shortage of precedents. Therefore, counsels should not make the assumption that low property damage cannot result in significant bodily injury should such cases ripen into litigation.

Lawrence C. Hill is a trial attorney who practices in the areas of personal injury, criminal defense, and immigration litigation. In 2014, he was recognized as one of The Valley’s Top Lawyers by the Desert Companion Magazine. Sean P. O’Callaghan is the litigation manager at the Law Office of Lawrence Hill.

Nevada’s New “Goldilocks” Asbestos Causation Standard

By Matthew Park, Esq. and Brian Blakley, Esq.

In asbestos litigation, there is often a long delay between sufficient exposure and discernible symptoms. Without detailed records of the worksite products used—which are rare—plaintiffs are often left with their memory to prove that, decades earlier, they used a particular defendant’s asbestos-containing products in a particular manner. Some plaintiffs are unable to quantify, with any precision, their exposure to a particular defendant’s products. Holcomb, 289 P.3d at 193. (quoting David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brook. L. Rev. 51, 55 (2008)).

Left alone, this obstacle “could unfairly deny deserving plaintiffs in asbestos cases any recovery.” Holcomb, 289 P.3d at 193. On the other hand, an overly-relaxed exposure standard could unfairly penalize defendants whose asbestos did not cause the harm alleged. Id. In short, courts have struggled to craft a “Goldilocks” standard—especially for plaintiffs alleging “uncertain, modest, or very small” exposure to particular products. Joseph Sanders et al., The Insubstantiality of the “Substantial Factor” Test for Causation, 73 Mo. L. Rev. 399, 402 (2008).

Yet, until Holcomb v. Georgia Pacific, there had been no Nevada case that addressed the standard for causation in an asbestos case. Even worse, prior to Holcomb, competing jurisdictions had fashioned such a wide variety of causal standards that it was practically impossible to predict what a Nevada court would do. Now, Holcomb’s causation analysis is regularly cited in Nevada cases. It has also influenced courts as far away as Maine and Pennsylvania. See, e.g., Williams v. Wyeth, Inc., 2013 WL 3761107, at *2 (E.D. Pa. July 18, 2013); Soucy v. Briggs & Stratton Corp., 2014 WL 794570, at *3 (D. Me. Feb. 27, 2014).

The problem
A typical asbestos plaintiff sues dozens of defendants, claiming workplace exposure to various asbestos-containing products, usually over an employment lifetime of 20 to 30 years. The parties initially battle over whether any particular defendant’s product caused the plaintiff to inhale microscopic asbestos fibers. This lengthy “discovery” phase gradually whittles the group of defendants down to a handful of likely suspects. These defendants then battle over whether their particular fibers actually caused the plaintiff’s illness. Due to the long latency of asbestos-related diseases, such as asbestosis or mesothelioma, the applicable causation standard can have a significant impact on the case. In asbestos litigation, causation is often the “tail that wags the dog.”

Holcomb: a case of first impression for Nevada

In Holcomb, the plaintiff was diagnosed with mesothelioma and he sued various joint compound and automotive brake suppliers. At issue on appeal was whether plaintiff had submitted sufficient evidence of exposure for a jury to find that the defendants’ asbestos-containing products were substantial factors contributing to plaintiff’s mesothelioma. Deciding an issue of first impression, the Holcomb court analyzed California, Texas, and Fourth Circuit causation standards. It ultimately adopted the Fourth Circuit’s middle-of-the-road Lohrmann test—as tailored by the Supreme Court of Pennsylvania in Gregg v. V–J Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007) (the “Lohrmann test”). Id. at 195 (citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986)).

Rutherford: a relaxed California standard

First, the court rejected Rutherford, a plaintiff-friendly standard that treats “every non-negligible exposure as a factual cause.’” Id. at 194 (quoting Jane Stapleton, The Two Explosive Proof-of-Causation Doctrines Central to Asbestos Claims, 74 Brook. L. Rev. 1011, 1027 (2009)); see also Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1220 (Cal. 1997). This standard does not require a specific analysis of dose—any exposure that is more than negligible is a sufficient cause. See id. The Nevada Supreme Court rejected this theory as a “fiction” and explained that “its extraordinarily relaxed nature does not afford enough protection for manufacturers that may not have caused the resulting disease.” Id.

Flores: a strict Texas standard

Next, the court rejected Flores, a strict standard that requires evidence of (1) regular exposure and (2) “‘defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease.’” Id. (quoting Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007)). The court reasoned that “in protecting the manufacturer, the Flores causation test swings too far beyond Rutherford to the point where it overburdens the claimant,” who might be unable to quantify her dose of a particular defendant’s asbestos, or demonstrate its significance within her total asbestos dosage. Id.

Lohrmann: the Fourth Circuit “Goldilocks” standard

Finally, the court turned to Lohrmann. Issued in 1986, this Fourth Circuit opinion has been widely cited as a reasonable middle ground. Under Lohrmann, plaintiffs must prove exposure to (1) a “specific product” attributable to each defendant, on (2) “a regular basis over some extended period,” in (3) “proximity to where the plaintiff actually worked,” such that (4) it is reasonable to infer that the exposure caused the illness. 782 F.2d at 1162–63. In other words, the plaintiff must be exposed to the specific asbestos-containing product often enough and close enough to get sick.

Gregg: Nevada adopts Pennsylvania’s flexible approach to Lohrmann

While the Holcomb court unanimously adopted Lohrmann, it was an asbestosis case. For guidance using Lohrmann in the mesothelioma context, the court turned to Gregg v. V-J Auto Parts, which instructs that the Lohrmann factors should be “tailored to the facts and circumstances of the case.” 943 A.2d at 225 (Pa. 2007). Because mesothelioma can result from low doses of asbestos, the Gregg court held that the frequency and regularity prongs are “less cumbersome” in mesothelioma cases. Id. Accordingly, to determine whether a defendant’s product is a substantial factor in causing mesothelioma, Nevada courts must now apply the Lohrmann test as it was tailored in Gregg.

Going forward

Despite manufacturer and distributor bankruptcies and an aging plaintiff pool, asbestos litigation will remain a fixture on the legal landscape. One authority estimates that asbestos is present in “more than half of all buildings erected in the United States during the three decades from 1940 to 1970, and in almost every factory, school and home across the land.” Janis L. Kirkland, What’s Current in Asbestos Regulations, 23 U. RICH. L. REV. 375, 378 (1989). Armed with Holcomb, litigants now know—for the first time—how to prove causation in Nevada’s courts.

Matthew Park is Of Counsel in Lewis Roca Rothgerber’s litigation group. His practice focuses on commercial litigation, product liability, alternative dispute resolution, and business torts. He can be reached at 702-474-2655 or MPark@LRRLaw.com. Brian Blakley is an associate in Lewis Roca Rothgerber’s litigation group. Before entering private practice, he clerked for Judge Robert C. Jones on the U.S. District Court for the District of Nevada. He can be reached at 702-474-2687 or BBlakley@LRRLaw.com.

The Evolution of Nevada’s Anti-Stacking Law

By Luis A. Ayon, Esq.

Anti-Stacking provisions explained

Many car insurance policies include anti-stacking provisions preventing the insured from applying (or “stacking”) multiple coverage limits on separate policies or automobiles. An example of stacking includes an insured who owns two vehicles collecting underinsured motorist benefits under the policies of both vehicles. In effect, anti-stacking provisions ensure that only one policy limit or one deductible applies to each separate incident, regardless of the number of policies or vehicles the insured owns. Nevada authorizes anti-stacking clauses, as long as the insurer meets three prerequisites:

  • the limiting provision must be expressed in clear language;
  • the provision must be prominently displayed in the policy; and
  • the insured must not have purchased separate coverage on the same risk nor paid a premium calculated for full reimbursement under that coverage.

NRS 687B.145(1).

The burden of proof is placed on the insurer to present evidence that all three requirements are met. See Bove v. Prudential Ins. Co. of America, 106 Nev. 682, 799 P.2d 1108 (Nev. 1990).

Reasoning for anti-stacking provisions

The Supreme Court of Nevada has detailed the inequities of allowing insureds to recover benefits under multiple coverages. In Peterson v. Colonial Ins. Co. of California, the Court held that a passenger in a motorcycle accident was not entitled to recover benefits under both the bodily injury and the uninsured/underinsured motorist coverages afforded by the motorcycle driver’s single insurance policy. 100 Nev. 474, 686 P.2d 239 (1984). The Court explained that allowing the passenger to recover on both benefits under a single policy would “essentially be increasing the bodily injury coverage provided by the . . . policy.” Id. Thus, the anti-stacking provisions prevent insureds and the courts from rewriting policies. Although the passenger would be able to “stack” her own uninsured/underinsured motorist coverage with the driver’s third-person bodily injury coverage, she was prevented from stacking the two coverages from the driver’s policy. Id.

The Baker v. Criterion Ins. Co. decision further defined the limits of stacking, as the Court held that a passenger who was injured in her own vehicle could not recover from both the bodily injury and uninsured/underinsured motorist benefits on her own policy. 107 Nev 25, 805 P.2d 599 (1991). Because the passenger’s injury involved the tortious acts of another party, but not another vehicle, she was not able to stack the two coverages on her own policy. Id. The same concern of allowing the insured to increase the policy’s bodily injury coverage was at play here, as additional recovery would underhandedly increase the policy limit.

Clarity of the language

The anti-stacking language must be clear and unambiguous, which is determined by whether the language is “truly comprehensible to the average insured.” Torres v. Farmers Ins. Exchange, 106 Nev. 340, 793 P.2d 839 (1990). A clause that is technically unambiguous, but still too difficult for a layperson to understand will not be held as clear. Neumann v. Standard Fire Ins. Co. of Hartford, Conn, 101 Nev. 206, 699 P.2d 101 (1985). Additionally, courts will construe any ambiguity or uncertainty against the insurer and in favor of the insured. Benchmark Ins. Co. v. Sparks, 254 P.3d 617 (Nev. 2011).

The Ninth Circuit recently examined the clarity requirement of anti-stacking provisions. In Jackoby v. GEICO Gen. Ins. Co., an anti-stacking clause clearly limited stacking in instances where the policyholder is involved in an accident while in a motor vehicle or as a pedestrian. No. 12-16917, 2015 WL 128072 (9th Cir. Jan. 9, 2015). However, the insured was injured in an accident while riding a bicycle, which led to a question of whether the anti-stacking provision clearly prevented him from stacking his UIM benefits. Id. The court held that a reasonable insured would not presume that stacking was prohibited in factual circumstances not specified in the policy. Id. Thus, the Ninth Circuit did not believe that an average insured would expand the plain-meaning definition of “pedestrian” beyond a person traveling on foot, making the anti-stacking provision void and unenforceable. This holding sheds light on an insured’s reasonable expectations, and suggests that insurers should not anticipate that policy holders will consider anything, but the literal usage of undefined terms in the anti-stacking clause.

Prominently displayed

The anti-stacking clause must also be prominently displayed, meaning it must be more readily visible to the insured than the main body of the policy. Neumann, 101 Nev. at 105. Thus, an anti-stacking clause that is in bold print, large type, and double-spaced is still not prominently displayed if the entire document contains those same attributes, as it is necessary for the clause to be more readily apparent than the rest of the policy. Id. The clause should be completely set apart from the rest of the policy, so the insured has no doubt of the potential adverse effects of consenting to such a clause.

Takeaway for attorneys litigating anti-stacking provisions

Attorneys should carefully review the clarity and prominence of anti-stacking provisions. As shown in Jackoby, the Ninth Circuit has taken more of a hardline approach to the “clear and unambiguous” requirement, and will likely apply the plain meaning of terms such as “pedestrian” if the anti-stacking clause fails to expand the definition, reasoning that insureds will not take that extra mental leap of considering scenarios outside those specifically mentioned in the clause. Additionally, Nevada’s anti-stacking ambiguity test is more stringent than a simple application of common law insurance contract principles. Thus, attorneys should conduct a closer analysis of whether the average insured would actually be able to comprehend the clause, despite technical correctness of the language. As for prominence, attorneys should not only review the font, boldness, and capitalization of the clause, but check for whether the clause is aesthetically set apart from the rest of the policy.

Special thanks to our law clerk Danielle Barraza a 2015 JD candidate at Boyd who helped with this article.

Luis A. Ayon is a founding partner of Maier Gutierrez Ayon. He has significant litigation experience in Nevada’s state and federal courts and currently focuses his practice on complex commercial litigation, and contested and adversarial matters in real estate litigation and financial institutions litigation. He can be reached at (702) 629-7900 or laa@mgalaw.com.

Disqualifying a Physician for Independent Medical Examination

By Bruce Scott Dickinson, Esq. and Jacquelyn Franco, Esq.

Whenever a person puts his or her mental or physical condition at issue in a case in which compensation is sought, the insurance company or other responsible party defending the case has a right to have a physician of its own choice examine the claimant. NRCP 35(a). There are a few reasons to make this request. The defendant or insurance company may be concerned that the plaintiff’s injuries are not as severe as claimed, or they may just want to know the exact scope of injuries. In either event, recent case law regarding physician selection for Rule 35 independent medical evaluations, commonly referred to IME’s, has addressed under what circumstances a court may reject the defendant’s selection of the examining physician. Although a court is not required to accept a defendant’s proposed examining physician, only if the plaintiff raises valid objection will the court appoint a different examiner. Ragge v. MCA/Universal, 165 F.R.D. 605 (C.D. Cal. 1995).

If a physician engages in a pattern or practice of providing improper, inflammatory opinions, an order barring him or her from performing a Rule 35 examination is appropriate. Pham v. Wal-Mart Stores, Inc., No. 2:11-cv-01148-KJD-GWF, 2012 WL 1957987 (D. Nev. May 29, 2012). The court in Pham did not define the exact conduct that is deemed a pattern or practice nor did it define the exact opinions that are improper or inflammatory. However, the allegations against the selected physician involved opinions attacking the credibility of the plaintiff. In denying the plaintiff’s motion to prevent the evaluation, the court noted that it was proper for the examining physician to review information that is relevant to the injury which is alleged, which can include discovery responses, deposition testimony, other health care records, and surveillance video. Moreover, the court held that it is proper for an examining physician to evaluate and comment on the credibility of the examinee’s subjective complaints or to recognize the possibility of ulterior motives for subjective complaints which, in the opinion of the physician, are not supported by the objective medical findings. Accordingly, if an expert can relate his or her opinions as to a plaintiff’s credibility on objective medical findings, he or she is not engaging in a pattern or practice of providing improper, inflammatory opinions.

An example of an improper, inflammatory opinion can, however, be found in Fontana v. City of Auburn, No. C13-0245-JCC (W.E. Wash. Aug. 21, 2014). The court in Fontana held that an expert’s statement claiming the plaintiff’s case was “meritless” was an improper opinion and grounds for striking. The expert, though, was still permitted to testify absent the improper opinion.

Another reason to challenge an examining physician is bias, i.e. the physician only performs defense evaluations. Courts tend to reject this argument though, finding that this issue is relevant, instead, for cross examination purposes, not justification to strike the examining physician. See Lunsford v. Union Pacific R.R. Co., 2011 WL 2559839, *2 (E.D. Ark. 2011) (“[C]ourts have rejected efforts by plaintiffs to disqualify a physician based on the fact that the physician generally is retained by the defense side of a lawsuit.”)

A different form of bias can come from the amount of income the examining physician receives from performing medical-legal work. Several district courts have held that the mere fact that a physician receives compensation from an insurance company for performing medical reviews does not justify striking the expert. See, e.g., Lavino v. Metro. Life Ins. Co., 779 F. Supp. 2d 1095, 1104 (C.D. Cal. 2011) (finding evidence that “MLS performed 77 examinations for MetLife between 2009 and September 2010, for which MetLife had paid $118,816.25” not probative of bias); Nolan v. Heald College, 745 F. Supp. 2d 916, 923 (N.D. Cal. 2010) (concluding that statistics showing that MetLife paid NMS $236,490 in 2002, $569,795 in 2003, $838,265 in 2004, and $1,671,605 in 2005 for independent medical opinions “are not probative of bias”; Kludka v. Qwest Disability Plan, No. CV-08-1806-PHX-DGC, 2010 U.S. Dist. LEXIS 34572, at *22 (D. Ariz. Apr. 7, 2010) (“The mere fact that 20 or 30% of [a physician’s] income is derived from record reviews does not show that he is biased.”), rev’d on other grounds by 454 Fed. Appx. 611 (9th Cir. 2011).

Although courts have held that the perceived biases recognized above are insufficient to prevent an expert from performing a Rule 35 examination, the examining physician’s credibility can still be attacked during deposition and/or on cross-examination at trial. While defendants do not have carte blanche authority in selecting the Rule 35 examining physician, plaintiffs face a high standard of proof in seeking to disqualify the proposed physician.

Bruce Scott Dickinson is a partner with the firm Stephenson and Dickinson. His practice focuses primarily on commercial transportation, products liability and insurance defense litigation. Jacquelyn M. Franco is an associate with the firm Stephenson and Dickinson. Her practice focuses on insurance defense litigation.