Parnass v. British Airways PLC

Background

The court considered British Airways PLC’s motion under Rule 35 of the Federal Rules of Civil Procedure to require Jeffrey D. Parnass to undergo a physical examination. Parnass alleged that he suffered a physical injury because of a condition that existed during a British Airways flight. The opinion describes the case as a negligence action.

The Parties’ Positions

British Airways argued that Parnass had placed his medical condition in dispute and that there was good cause to examine his left knee to determine the existence and extent of his alleged injury. It asked that the examination be performed by its medical expert, board-certified surgeon Edward Adler, and that the examination include generally accepted orthopedic methods, reasonably necessary questions, and reasonably necessary medical testing such as X-rays or other imaging.

Parnass agreed to be examined by Dr. Adler but expressed concerns that he had seen two doctors in the practice and that the office staff might not handle information carefully. He asked the court to require a letter confirming that the independent medical examination would not be combined with his records or another patient’s records and explaining where the examination report would be sent. He also opposed any continuing request for British Airways’ attorney to observe the examination, arguing that such observation was not supported by law and conflicted with Rule 35’s requirement that the examination be independent.

British Airways responded that Parnass had refused its offer to enter a protective order and that it had provided a written statement confirming that defense counsel would maintain the confidentiality of documents it received. It also stated that it would schedule the examination at a date and time convenient for Parnass.

Legal Standard

Rule 35 allows the court where an action is pending to order a party whose physical or mental condition is in controversy to submit to an examination by a suitably licensed or certified examiner. The requesting party must show good cause, and the order must specify the examination’s time, place, manner, conditions, scope, and examiner. The opinion cites the rule that a plaintiff alleging a physical injury in a negligence action generally places that injury in controversy and provides good cause for an examination concerning the injury’s existence and extent.

Court’s Analysis

Judge Kevin Nathaniel Fox found that Parnass had placed his medical condition in controversy by alleging a physical injury resulting from a condition during British Airways’ flight. The court therefore found good cause for an examination to determine the existence and extent of the alleged injury.

The court also addressed the possible presence of British Airways’ attorney. Although British Airways did not request the attorney’s presence in the motion, the court stated that, to the extent British Airways continued to press that request, allowing the attorney to attend was not warranted. The court cited authority stating that third parties generally should be excluded from Rule 35 examinations absent special circumstances.

The court noted that Parnass had not complied with all requirements of Local Civil Rule 7.1(b), including the requirement that a party seeking relief beyond simply opposing a motion also comply with Rule 7.1(a)(1). Even so, the court considered and rejected Parnass’s request for further privacy clarification as meritless. It found that Dr. Adler’s statement and British Airways’ written confirmation concerning confidentiality adequately addressed Parnass’s privacy concerns.

Disposition

The court granted British Airways’ motion, Docket Entry No. 21. It ordered that Parnass’s examination by Dr. Adler be scheduled at Parnass’s convenience and completed on or before June 22, 2020. The court also rejected Parnass’s request for an additional clarification letter and found that British Airways’ attorney’s presence at the examination was not warranted.