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Stuff v. Simmons12/12/2005
STATEMENT OF THE CASE
Appellants-Plaintiffs, Kelly E. Stuff (Kelly) and Ken B. Stuff (Ken) (collectively, the Stuffs), appeal the trial court's decision to grant Appellee-Defendant's, Zachary L. Simmons (Simmons), Motion to Compel Kelly to Submit for Neuropsychological Examination pursuant to Indiana Trial Rule 35.
We reverse and remand for further proceedings.
ISSUE
The Stuffs raise one issue on appeal, which we restate as follows: Whether the trial court properly exercised its discretion by ordering Kelly to undergo an independent neuropsychological examination pursuant to Indiana Trial Rule 35 when the Stuffs' personal injury claim only alleges general emotional distress normally associated with a physical injury and without asserting any specific mental injury.
FACTS AND PROCEDURAL HISTORY
On April 10, 2002, at approximately 6:13 p.m., Kelly was driving her vehicle southbound on I-465 on the Westside of Marion County, while Simmons was driving his pickup truck at high speed, weaving in and out of traffic behind Kelly. Simmons lost control of his vehicle and crashed into the rear of Kelly's car. After the accident, Kelly was transported to St. Vincent's emergency room where she was treated for cervical and lumbosacral strain. The emergency room released her to her family doctor.
On April 18, 2002, Kelly saw her family doctor, John Kersteff M.D. (Dr. Kersteff), complaining of neck and upper back pain as well as some lower back pain. Upon examining her, Dr. Kersteff located tenderness in Kelly's back and neck muscles and prescribed her anti-inflammatory and muscle relaxant medications. After several months of physical therapy, Dr. Kersteff ordered an MRI and referred Kelly to Steven E. Levine, M.D. (Dr. Levine), who specializes in interventional pain management. Dr. Levine gave Kelly cervical spine facet joint injections to numb the joints. In May of 2003, Dr. Levine performed a cervical epidural, injecting Kelly's spine with an anti-inflammatory. At the same time, Dr. Levine also gave Kelly trigger point injections along the spine to reduce muscle spasms. Thereafter, in June of 2003, Dr. Levine performed a facet rhizotomy on Kelly's neck. Through 2004, Kelly continued to experience pain in her neck and mid-back.
On December 1, 2003, the Stuffs filed a complaint against Simmons, alleging negligence resulting in severe and permanent injuries as well as considerable pain and suffering and emotional distress. During the litigation, Simmons' insurer, State Farm, requested Kelly to submit to an independent medical exam (IME) pursuant to Indiana Trial Rule 35. The Stuffs agreed to State Farm's request and on October 4, 2004, Kelly was examined by Dr. Theodore A. Nukes, M.D. (Dr. Nukes). Dr. Nukes concluded that because there were "minimal physical and neurologic exam findings," Kelly was magnifying her symptoms and neuropsychological testing/MMPI should be considered to assist in determining the level of symptom magnification. (Appellant's App. p. 23). Kelly refused to submit to neuropsychological testing.
On March 2, 2005, Simmons filed his Motion to Compel Kelly to Submit to Neuropsychological Examination. Two days later, on March 4, 2005, Kelly filed her objection to Simmons' motion. On March 28, 2005, a hearing was held during which the trial court granted Simmons' motion and ordered Kelly to make herself available for a neuropsychological examination by Gregory Hale, M.D. (Dr. Hale) within forty-five days. On April 1, 2005, Kelly filed her motion to reconsider, which was followed on April 15, 2005, by a Verified Supplemental Motion to Reconsider asserting that the examination could not
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