Kelly v. Blanchard, No. 1 CA-SA 23-0021 (App. Div. I, April 27, 2023) (J. Catlett) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2023/1%20CA-SA%2023-0021%20Kelly%20v.%20Hon.%20Blanchard.pdf
Ariz. R. Civ. P. 35(d)(2)(B) REQUIRING PARTY WHO REQUESTS INDEPENDENT MEDICAL EXAMINATION TO PRODUCE “LIKE REPORTS OF ALL EARLIER EXAMINATIONS OF THE SAME CONDITION” ONLY REQUIRES PRODUCTION OF LIKE REPORTS OF THE SAME CONDITION IN THE PARTICULAR INDIVIDUAL EXAMINED AND NOT “ANY INDIVIDUAL” THE PHYSICIAN HAS EXAMINED
Plaintiff was injured in an automobile collision and submitted to an Independent Medical Examination [IME] pursuant to Ariz. R. Civ. P. 35(a)(1). Thereafter plaintiff argued pursuant to Ariz. R. Civ. P. 35(d)(2)(B), the defendant was required to produce within 20 days “like reports” of the same condition about any individual the physician conducting the IME had examined. The defendant argued the rule only required the production of “like reports” of the same condition of the plaintiff. The trial court agreed with the plaintiff and the defendant brought this special action. The Arizona Court of Appeals accepted jurisdiction and granted relief to defendant.
First the court of appeals found the phrase “like reports” to be ambiguous because it doesn't address the question of “like reports about who?” thus rendering both parties' positions “plausible.”
Moving to a “secondary” means of interpretation the court of appeals adopted the view that the language “like reports” refers only to like reports of the same condition of the party being examined because:
- The language throughout Rule 35, and its surrounding language, all reference the party being examined, not others,
- The requirement that “like reports be produced” is directed to the party requesting the IME not the physician performing it, and
- This interpretation is consistent with the drafting history of Federal Rule 35 which uses the identical language as Arizona's rule 35.
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