The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
Kaitlin Hudson brought state and federal claims against her former employer, Dr. Michael J. O'Connell's Pain Care Center, Inc. ("Center"), and Dr. Michael J. O'Connell, arising from her relationship with O'Connell and the conditions of her employment at the Center. In support of her negligence claim against O'Connell and in opposition to his counterclaims for invasion of privacy and defamation, Hudson moves to require O'Connell to provide a blood sample for testing, as she proposes, to determine whether he has herpes. O'Connell objects to the testing.
In her second amended complaint, Hudson alleges that O'Connell negligently transmitted the herpes virus to her during their sexual relationship. O'Connell brings counterclaims for invasion of privacy and defamation, alleging that Hudson falsely told others that she had contracted herpes from O'Connell. Hudson seeks an independent medical examination to test O'Connell for herpes viruses, and O'Connell opposes the motion, arguing that Hudson cannot show good cause for the test because the existing test results are sufficient and further testing is unnecessary.
The court is authorized to "order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed. R. Civ. P. 35(a)(1). A motion to compel an independent medical examination must be based on good cause and "must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it." Fed. R. Civ. P. 35(a)(2). As the rule suggests, the party seeking to compel an examination under Rule 35 bears the burden of establishing that the party's physical condition is in controversy and that good cause exists to compel the examination. Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964); Flanagan v. Keller Prods., Inc., 2001 WL 1669379, at *1 (D.N.H. Dec. 18, 2001).
A party's physical condition is in controversy if it is asserted in support of or in defense to a claim. Schlagenhauf, 379 U.S. at 119. Good cause may be demonstrated by showing that the information cannot be obtained by other means and by showing a reasonable basis to believe that an examination will provide material information. Robinson v. Miller, 2011 WL 2669304, at *2 (D. Me. July 7, 2011); see also Yarosevich v. Toyota Indus. Corp., 2008 WL 2329331, at *1-*2 (D.N.H. June 5, 2008). For purposes of an order under Rule 35 to require a party to provide a body fluid sample, such as a blood, courts have considered whether the test results would be relevant to a claim in the case, the extent of the intrusion into the party's privacy due to the test, and the protections to guard the information to avoid privacy concerns. D'Angelo v. Potter, 224 F.R.D. 300, 303 (D. Mass. 2004).
Hudson has tested positive for herpes viruses, HSV-I and HSV-II, and alleges that she contracted herpes from O'Connell, whom she suspects contracted herpes from another sexual partner. O'Connell denies that he infected Hudson with herpes and brought invasion of privacy and defamation claims based on his allegations that Hudson falsely accused him of infecting her with herpes. Hudson's negligence claim and O'Connell's privacy and defamation claims put the issue of whether O'Connell has herpes in controversy.
O'Connell contends, however, that the issue of whether he has herpes is not in controversy. He contends that the case is about HSV-II, not about HSV-I. He provides his answers to interrogatories, stating that he has never tested positive for HSV-II; laboratory reports, showing the same thing; and the affidavit of the accused "other woman" who states that she never had a sexual relationship with O'Connell.*fn1 He argues that because the "other woman" denies a sexual relationship with him, Hudson lacks evidence to support her negligence claim.
Irrespective of Hudson's negligence claim, O'Connell's counterclaims raise the issue of whether he had herpes during his relationship with Hudson and transmitted the disease to her. However, in the context of this motion the court cannot resolve the question of whether only HSV-II is at issue or whether both HSV-I and HSV-II are at issue because the parties have failed to present sufficient information on the matter. The website references O'Connell provides do not establish his theory, which would likely require appropriate and admissible expert opinion evidence. Similarly, the explanation of the test results provided in O'Connell's memorandum, again with citations to websites, does not establish that his interpretation of the results is correct.
Therefore, although the question of whether O'Connell had herpes at a time material to the claims in this case is in controversy, the more specific issue of whether the claims are limited to one or extend to both viruses is insufficiently addressed.
Hudson contends that good cause exists to support the blood test she seeks because another test is necessary to determine the validity of the testing results O'Connell provided. Hudson suggests that O'Connell's test results are suspect because O'Connell owns the medical center where the test was done. Hudson also states that the test was done in ...