UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jean Ann Yarosevich

v. Civil No. 05-cv-182-JD

Toyota Industries

Corporation, et al.

O R D E R

Defendant moves for a physical or mental examination by its

retained vocational consultant. Plaintiff objects.

Background

Defendant’s statement of background facts in its memorandum

are accepted for purposes of this motion since none of the facts

are disputed.

Plaintiff suffered a permanently crushed and rebuilt ankle,

permanent loss of stomach muscle tissue, permanent loss of a

portion of her right calf, permanent loss of a portion of her

left leg fibula and other physical and psychological injuries. 

Her medical bills are $288,602.69. She alleges she can no longer

do her job after trying to return part-time. She alleges she can

no longer work as a result of her injuries. Defendant points to

a contrary statement in a functional capacity evaluation.

Case 1:05-cv-00182-JD Document 57 Filed 06/05/08 Page 1 of 6
2

Discussion

Defendants claim an entitlement under Fed.R.Civ.P. 35 to a

“vocational examination of the plaintiff” by their vocational

consultant, Daniel Patrick Thompson without the presence of

plaintiff’s counsel.

Fed.R.Civ.P. 35 permits a court 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.

The Rule also requires that movant show good cause. Doe v.

District of Columbia, 229 F.R.D. 24, 26 (D.D.C. 2005). 

Presumably movant would in showing good cause provide the

information needed for the court to specify the manner,

conditions and scope of examination. See Fed.R.Civ.P. 35(2)(B).

Vocational Rehabilitation Experts

Rule 35 does not explicitly include examinations by

vocational experts but some courts have permitted examinations by

vocational rehabilitation experts who are licensed or certified. 

See Jefferys v. LRP Publications, Inc., 184 F.R.D. 262 (E.D. Pa.

1999); Fischer v. Coastal Towing Inc., 168 F.R.D. 199 (E.D. Tex.

1996); and Olcott v. LaFiandra, 793 F. Supp. 487 (D. Vt. 1992). 

Case 1:05-cv-00182-JD Document 57 Filed 06/05/08 Page 2 of 6
3

Other courts have taken the view that the 1991 Advisory

Committee’s Notes to Rule 35 have extended the scope of examiners

covered but not the scope of examinations covered and have

declined to order a vocational assessment unconnected to any

physical or mental examinations. Storms v. Lowe’s Home Centers,

Inc., 211 F.R.D. 296, 298 (W.D. Va. 2002).

Certainly vocational rehabilitation experts have been

accepted under Daubert standards in many types of cases from

social security to lost earning capacity. They may qualify under

Rule 35 where the clear assessment is directly connected to a

physical or mental examination, but every vocational assessment

does not automatically qualify.

a. Good Cause

Defendant justifies using a vocational expert in this case

where plaintiff’s claim of disability appears to be contradicted

by the functional capacity evaluation of Ms. Van Saun. That does

not constitutes a sufficient showing of “good cause” for a Rule

35 examination. In fact, the motion itself fails to provide

“good cause” as plaintiff’s objection points out. The motion

itself appears to request a totally undefined and unfettered

examination. After plaintiff’s objection defendant’s reply

Case 1:05-cv-00182-JD Document 57 Filed 06/05/08 Page 3 of 6
4

provided some description.

Defendant wants a two hour interview to question plaintiff

about her education, employment and medical history and so the

“expert” who is neither a medical doctor nor a licensed

psychologist, can observe and discuss plaintiff’s physical

abilities and limitations. He also seeks to inquire about

plaintiff’s daily living activities, transferable skills and

future employment observations.

Defendant has deposed plaintiff, received answers to

interrogatories and medical records. Presumably others who

observed plaintiff’s day to day living have also been deposed or

interviewed by counsel. In short, the vocational expert appears

to have all the material he needs (assuming defense counsel has

done his job in discovery). Plaintiff has provided her health

history, the employment history requested and her medical

records. See Doc. 55-2. Defendant has not therefore shown any

cause, let alone good cause for a Rule 35 exam. The expert can

review the records and make his assessment without the necessity

of an unsupervised deposition. 

Case 1:05-cv-00182-JD Document 57 Filed 06/05/08 Page 4 of 6
5

b. The “Expert”

Defendant’s expert may ultimately be qualified, but for

purposes of Rule 35 I find he has not been shown to be suitably

licensed or certified. See 199, Advisory Committee Notes. His

CV, Doc. no. 50-6, shows that he is not licensed at all. 

Defendant has not provided any information on whether his

“certifications” (R.R.P. and R.V.P.) are meaningful or not. He

has no college degree, but has completed some college courses. 

He appears to have attended eight days of relevant conferences

over a twenty-five year period. None of his articles are in

recognized peer-reviewed journals.

In contrast, a certified vocational expert (diplomat) of the

American Board of Vocational Experts must pass a competency exam,

hold a Master’s Degree, and have annual continual education. The

Commission on Rehabilitation Counselor Certification requires a

master’s degree, a competency exam and annual continuing

education. On paper defendant’s expert does not appear

particularly well qualified.

Case 1:05-cv-00182-JD Document 57 Filed 06/05/08 Page 5 of 6
6

The motion (Doc. no. 50) is denied.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 5, 2008

cc: Melvin Fink, Esq.

 Robert P. Gerety, Esq.

 Adam A. Larson, Esq.

 James M. Campbell, Esq.

 Trevor J. Keenan, Esq.

 

Case 1:05-cv-00182-JD Document 57 Filed 06/05/08 Page 6 of 6