plaintiff's alleged cocaine problem is relevant to issues in the case. Circle Line claims that the H.S. Systems medical records and Dr. Morse's testimony are relevant to the issue of damages and to impeach Furlong's credibility.
To establish that Furlong's purported cocaine problem is relevant to the issue of damages, Circle Line must make some showing that Furlong's alleged drug use affects his ability to work. Dr. Morse's testimony and the medical records he prepared are potentially relevant to the issue of damages, for plaintiff's ability to work could be affected by his alleged cocaine habit. Evidence of a cocaine problem could tend to make it less probable that plaintiff's inability to work was caused by the injury to his hand. See Fed. R. Evid. 401. In assessing Furlong's employability, Dr. Morse noted his impression that plaintiff suffered from uncontrolled drug abuse, referred plaintiff to drug treatment, and determined that plaintiff was "Temporarily Disabled/Unemployable" for three months due to the drug problem. Thus, if the proper foundation is established for the H.S. Systems medical records and the testimony of Dr. Morse, evidence of Furlong's alleged drug problem could be relevant.
Circle Line also contends that the evidence of Furlong's cocaine use contained in the medical records and testimony of Dr. Morse is relevant to impeach Furlong's credibility should he testify at trial. It is true that drug use may be relevant to credibility, since it can affect memory and perception. See Gordy Co. v. Mary Jane Girls, Inc., No. 86 Civ. 6814, 1989 WL 28477, at *6 (S.D.N.Y. Mar. 24, 1989). In this case, however, the alleged cocaine use occurred in March 1994, two and one-half years after the events giving rise to this lawsuit; therefore, it could not have affected Furlong's ability to observe and perceive those events.
Nor does Circle Line argue that the alleged drug use has affected Furlong's memory. In addition, Circle Line has not shown that Furlong's alleged drug use is probative of his truthfulness or untruthfulness. Thus, evidence of plaintiff's alleged drug use may not be used for impeachment purposes.
In sum, Circle Line may not add to the Joint Pretrial Order the report of the drug screen results or any medical reports based on those results. It may, subject to the laying of a proper foundation (which must be done outside the presence of a jury), add the H.S. Systems medical records and call Dr. Morse for the purpose of showing that Furlong's purported drug problem affected his ability to return to work.
IV. Motion for Medical Examination Pursuant to Rule 35(a)
Circle Line moves for an order directing Furlong to submit to an independent medical examination pursuant to Fed. R. Civ. P. 35(a).
Under Rule 35(a), the party seeking a physical examination must show that the physical condition of the party sought to be examined is "in controversy" and must establish good cause for such an examination. Fed. R. Civ. P. 35(a); Schlagenhauf v. Holder, 379 U.S. 104, 117-18, 85 S. Ct. 234, 242-43, 13 L. Ed. 2d 152 (1964) (good cause requisite is "not met by mere conclusory allegations of the pleadings--nor by mere relevance to the case--but require[s] an affirmative showing by the movant . . . that good cause exists for ordering each particular examination."). In this case the parties do not dispute that Furlong's physical condition is in controversy, because he brought suit to recover damages for injuries to his hand. Furlong objects to an independent medical examination on the grounds that he has already undergone two such medical examinations and that Circle Line has not shown sufficient cause to warrant a third medical examination.
Although a court may order multiple physical examinations, a higher showing of cause is required to justify subsequent examinations. See 8A Charles A. Wright et al., Federal Practice and Procedure § 2234, at 475 (2d ed. 1994). Circle Line contends that it has demonstrated good cause for a third medical examination, because its medical expert, Martin S. Posner, M.D. ("Dr. Posner"),
last examined Furlong on behalf of Circle Line on August 25, 1994. According to Circle Line, an additional examination is necessary to monitor the progression of an unrelated hand condition suffered by Furlong, Dupuytren's Contracture, which is relevant to the issue of damages. Furlong argues that this condition has been present since January 1993, and that, because Dr. Posner has examined Furlong twice since then, he should not be permitted to perform a third examination.
Although there is no time limit in which to make a motion pursuant to Rule 35(a), Wright et al., supra, § 2234, at 474, the Court notes that Circle Line did not make the present motion for a third medical examination until September 1, 1995, although it became aware of Furlong's Dupuytren's Contracture in January 1993. Circle Line argues that the Dupuytren's Contracture was not an issue in the case at the time Furlong was last examined by Dr. Posner, because, after mentioning the condition in a January 15, 1993 letter, Dr. Lenzo did not discuss it again until April 13, 1995. This does not explain Dr. Posner's failure to obtain information about the condition during his earlier examinations, nor does it explain Circle Line's failure to request a third examination until well after the Joint Pretrial Order was submitted. Circle Line had two months from Dr. Lenzo's April 13, 1995 correspondence until the Joint pretrial Order was submitted on June 14, 1995 in which to make such a motion. Because Circle Line's doctor has already performed two physical examinations of Furlong in connection with this case, and Circle Line has not shown good cause for a third examination, the motion is denied.
Dated: New York, New York
October 31, 1995
United States District Judge