Vuksanovich v. Airbus Group HQ, Inc.

Background

Kristi Vuksanovich alleges that repeated exposure to harmful contaminants while working as a flight attendant for JetBlue Airways caused traumatic brain injuries. Airbus Americas, Inc. and Airbus S.A.S. requested a neuropsychological examination by Dr. Bonnie Levin, a professor of Neurology at the University of Miami. Vuksanovich did not object to undergoing the examination, but asked that it be recorded by video or audio, or that a stenographer attend.

Vuksanovich argued that a recording was necessary to preserve what happened during the examination and to help her lawyers prepare to question Dr. Levin. Her counsel also argued that her brain injuries would prevent her from explaining the examination adequately to her attorneys. The defendants opposed the request, arguing that recording could undermine the examination’s integrity. Dr. Levin submitted a sworn declaration stating that recording a neuropsychological examination conflicts with accepted testing standards and could reduce the examination’s reliability.

Legal standard

Federal Rule of Civil Procedure 35 allows a court to order a party whose mental or physical condition is at issue to undergo an examination by a qualified examiner. Although Rule 35 does not specifically address recording devices or third-party attendance, the court may impose protective conditions under Rule 26(c). That rule allows protection from annoyance, embarrassment, oppression, or undue burden or expense when the moving party shows good cause.

The court explained that Rule 35 examinations are typically not recorded and that courts generally disfavor recordings and the presence of third parties. A party seeking to record an examination must show special circumstances requiring a recording. The court also noted that a human or mechanical presence can change the examination, create distractions, and diminish its accuracy.

Court’s analysis

The court found that Vuksanovich had not shown special circumstances. First, it found that her assertions about being unable to help her attorneys question Dr. Levin were unsupported. The court distinguished a prior case in which a court reporter was allowed because the plaintiff was not well educated and had difficulty with English. Vuksanovich did not claim to have a similar language barrier, and she offered no evidence showing that she would be unable to assist her attorney after the examination.

Second, the court found speculative Vuksanovich’s concern that Dr. Levin might misreport what occurred or omit findings. The study Vuksanovich cited involved 20 defense medical examinations, but did not concern Dr. Levin or the examination at issue. Vuksanovich also offered no evidence that Dr. Levin would conduct the examination improperly or misreport it. The court noted that her lawyers could depose Dr. Levin and ask about the examination’s procedures and findings.

Disposition

The court denied Vuksanovich’s request for an order permitting the recording of her Rule 35 neuropsychological examination.