IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHAUL FELD and ADA FELD, :

 :

 Plaintiffs : 

 :

 v. : CIVIL NO. 4:12-CV-01492

 :

PRIMUS TECHNOLOGIES : (Judge Brann) 

CORPORATION and :

VINCE KLARSCH, :

 : 

 Defendants :

MEMORANDUM

April 28, 2015

Currently pending before the Court is Plaintiffs’ Motion to Preclude 

Defendants’ Use of Worker’s Compensation Defense Medical Examination 

Reports at Trial (ECF No. 87). Briefing has concluded and the motion is now ripe 

for disposition. For the reasons set forth below, the motion is denied.

I. Background

On July 31, 2012, Plaintiffs Shaul Feld and Ada Feld (collectively “the 

Felds”) filed a Complaint against Defendant Primus Technologies Corporation

(“Primus”) and John Doe. (ECF No. 1). This Complaint was subsequently 

amended on February 6, 2014 to name Defendant Vince Klarsch. (ECF No. 42). 

The Felds allege negligence and loss of consortium against both defendants. Id.

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On June 9, 2011, Mr. Feld was working as an employee of Orbotech, Inc. 

and was present at Primus’ facility for the installation of a Sprint 100 industrial 

printing machine. Id. at ¶ 9. Mr. Klarsch, while acting within the course and scope 

of his employment, utilized a forklift to move the Sprint 100 to its installation 

location. Id. at ¶ 12. The Felds allege that Primus failed to adequately train its 

employees in the proper use and operation of forklifts. Id. at ¶ 22. Mr. Klarsch 

allegedly did not place the forklift forks completely under the Sprint 100 and, as a 

result, the Sprint 100 began falling toward Mr. Feld. Id. at ¶ 15. This resulted in

“severe and permanent injury” to Mr. Feld. Id. at ¶ 16. Thereafter

As a result of his injuries, which occurred during the course of his 

employment with Orbotech, Inc., Mr. Feld filed a Workers’ 

Compensation claim in Massachusetts. In connection with his claim, 

Orbotech, Inc.’s insurance company, Chubb Group of Insurance 

Companies, had doctors retained for the purposes only of the 

Workers’ Compensation litigation, perform three separate Defense 

Medical Examinations of Shaul Feld. On December 13, 2011, William 

C. Donahue, M.D. examined Mr. Feld. On June 13, 2012, Frederick L. 

Mansfield examined Mr. Feld. Finally, on May 13, 2013, Robert L. 

Smith examined Mr. Feld. None of these examinations were for the 

purposes of medical care, treatment, or consultation of Plaintiff’s 

injuries. Each doctor submitted a report to Chubb Group of Insurance 

Companies for their use in defense of Mr. Feld’s Workers’ 

Compensation claims.

(ECF No. 87, p. 2).

II. Discussion

The Felds seek to preclude Defendants “from offering any testimony or 

evidence at trial in this matter regarding, adopting, relying upon, or otherwise 

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referring to” any of the independent medical examinations (“IMEs”) conducted by 

Dr. Donahue, Dr. Mansfield, or Dr. Smith. (ECF No. 87). Specifically, the Felds 

contend that the IMEs do not constitute medical records, but rather are paid 

opinions that are inherently biased. Id. at 4. They further argue that using the 

IMEs is an improper attempt to introduce hearsay into evidence. Id. at 5. In turn, 

Defendants argue that the IMEs constitute facts that a medical expert would 

reasonably rely on, and therefore the expert witness should be allowed to use them. 

(ECF No. 85). 

Federal Rule of Evidence 703 directs what information an expert witness 

may base his or her testimony on. See, Fed. R. Evid. 703. This rule provides that

An expert may base an opinion on facts or data in the case that the 

expert has been made aware of or personally observed. If experts in 

the particular field would reasonably rely on those kinds of facts or 

data in forming an opinion on the subject, they need not be admissible 

for the opinion to be admitted. But if the facts or data would otherwise 

be inadmissible, the proponent of the opinion may disclose them to 

the jury only if their probative value in helping the jury evaluate the 

opinion substantially outweighs their prejudicial effect.

Id. Therefore, so long as an IME is the type of evidence that a doctor would 

reasonably rely on, Defendants’ expert is not precluded from relying on those 

reports.

It is clear that medical professionals often rely on the reports created by 

other doctors. See, e.g., In re Paroli R.R. Yard PCD Litig., 35 F.3d 717 (3d Cir. 

1994) (concluding that physicians generally should consult a patient’s medical 

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records, including examinations performed by other physicians); Walker v. Soo 

Line R. Co., 208 F.3d 581, 588 (7th Cir. 2000) (“Medical professionals have long 

been expected to rely on the opinions of other medical professional in forming 

their opinions”); Henderson v. Goodyear Dunlop Tires N. Am., Ltd., No. 3:11-cv295-WKW, 2013 WL 5729377, at *5 (M.D. Ala. Oct. 22, 2013) (holding that 

medical doctors reasonably rely on the opinions of other medical doctors in 

forming opinions). 

Furthermore, the advisory committee notes for Rule 703 specifically 

contemplated experts relying on 

reports and opinions from nurses, technicians, and other doctors, 

hospital records, and X rays. Most of them are admissible in evidence, 

but only with the expenditure of substantial time in producing and 

examining various authenticating witnesses. The physician makes lifeand-death decision in reliance upon them. His validation, expertly 

performed and subject to cross-examination, ought to suffice for 

judicial purposes. 

Fed. R. Evid. 703 Advisory Committee’s Notes. 

Consequently, Defendants’ expert may rely upon the IMEs in formulating an 

opinion. However, simply because the expert may rely upon the IMEs does not 

mean that the contents of the IMEs may be admitted. To the extent that the reports 

contain inadmissible hearsay, such hearsay may not be admitted for substantive 

purposes. E.g., State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., 

No. 6:06-cv-1757-Orl-GJK, 2009 WL 6357793, at *21 (M.D. Fla. Jan. 9, 2009).

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Should Defendants seek to introduce the contents of the IMEs for non-substantive 

purposes, they will bear the burden of demonstrating that the probative value of the 

IMEs will outweigh their prejudicial effect. Fed. R. Evid. 703.

IV. Conclusion

IMEs are the type of facts that a medical doctor would reasonably rely on in 

forming an opinion and, consequently, the Defendants’ expert witness may rely 

upon IMEs in formulating an opinion. However, to the extent that the IMEs 

contain inadmissible hearsay, the contents may not be discussed for substantive 

purposes.

A separate Order will issue.

 

BY THE COURT:

s/Matthew W. Brann 

Matthew W. Brann

United States District Judge 

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