The U.S. District Court D. New Mexico dealt with the plaintiff who was in an automobile accident. The plaintiff was travelling in New Mexico at the time of the accident but lives in Kentucky.
The defendant sought to have the plaintiff, who has Multiple Sclerosis, travel back to New Mexico for the IME.
The court rejected this request, due to the plaintiff’s MS and Covid-19.
The court stated:
Defendant does not dispute that Plaintiff has multiple sclerosis and has received a medication that modifies the immune system. As such, and in light of the COVID-19 pandemic, Plaintiff could well face an elevated risk of serious harm or death if she were to travel from Kentucky to New Mexico to submit to a Rule 35 examination. The Court will thus allow Plaintiff thirty (30) days from the date of this Order to provide Defendant with documentation from a licensed medical provider to the effect that, in the provider’s opinion, travel from Kentucky to New Mexico at this time presents a medically unacceptable level of risk to Plaintiff. If Plaintiff provides such documentation, the examination must be conducted in such a way that Plaintiff can remain in Kentucky. Defendant may select the neuropsychologist who will perform the examination; however, it must take place virtually and/or at a reasonable distance from Plaintiff’s residence. If Plaintiff does not timely provide Defendant with the specified documentation or seek an extension of time in which to do so, the Rule 35 examination may proceed in the locations Defendant has requested, i.e., virtually and in person in Albuquerque, New Mexico.
IT IS THEREFORE ORDERED that Defendant Diane Gutierrez’ Motion to Compel Independent Medical Examination (Doc. 29) is GRANTED IN PART and DENIED IN PART. The motion is granted in that Plaintiff is hereby ordered to submit to a neuropsychological examination pursuant to Federal Rule of Civil Procedure 35. The motion is denied in that the examination must take place virtually and/or in Kentucky at a reasonable distance from Plaintiff’s residence, provided Plaintiff timely supplies Defendant with documentation from a licensed medical provider to the effect that travel from Kentucky to New Mexico at this time presents a medically unacceptable risk to Plaintiff. Plaintiff must supply the specified documentation within thirty (30) days of entry of this Order. If Plaintiff fails to do so, the examination may proceed in the locations Defendant has requested.
To view the entire case, see here: https://scholar.google.com/scholar_case?case=2972089225588345050&q=19-841+&hl=en&as_sdt=40000006&as_ylo=2020