Anderson v. Arizona PRN LLC et al

Filing 82

ORDER granting Defendant's Motion to Compel Medical Examination and Functional Skills Assessment by Defendant's Expert (Doc. 74 ). IT IS FURTHER ORDERED denying Plaintiff's Request for Protective Order (Doc. 75 ). IT IS FURTHER OR DERED that Defendant provide the Court with a form of the order setting forth all the information required pursuant to Rule 35(a), Fed. R. Civ. P. IT IS FURTHER ORDERED affirming the March 14, 2016 deadline for engaging in good faith settlement talks (Doc. 70 ). Any requests for a settlement conference before a Magistrate Judge shall be filed by February 11, 2016 (see document for further details). Signed by Magistrate Judge Eileen S Willett on 2/4/16.(KGM)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Latisha Anderson, No. CV-14-02240-PHX-ESW Plaintiff, 10 11 v. 12 ORDER Arizona PRN LLC, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 Pending before the Court are (i) Defendant’s “Motion to Compel Medical Examination and Functional Skills Assessment by Defendant’s Expert” (Doc. 74) and (ii) Plaintiff’s Request for Protective Order (Doc. 75). Oral argument has been requested. After reviewing the parties’ briefing (Docs. 74, 75, and 78), oral argument is deemed unnecessary for consideration of the issues pending before the Court. The request for oral argument is denied. 23 24 25 26 27 28 I. BACKGROUND Plaintiff has filed a First Amended Complaint alleging (i) discrimination pursuant to 42 U.S.C.§ 12101 et seq., (ii) discrimination pursuant to ARIZ. REV. STAT. § 41-1463 et seq,, (iii) breach of fiduciary duty, and (iv) negligence. (Doc. 24). Defendants have answered. (Docs. 26, 27). The Court dismissed Defendant Arizona PRN, LLC with prejudice from the action. (Doc. 61). All issues are joined. The Court has jurisdiction 1 pursuant to 28 U.S.C.§§ 1331, 1343, 2201, 2202, and 1367. The parties have consented 2 to the exercise of Magistrate Judge jurisdiction. (Doc. 22). 3 Plaintiff is a registered nurse, confined to a wheelchair due to a physical disability. 4 She is a resident of North Carolina. Plaintiff alleges that she was offered and accepted a 5 thirteen week temporary nursing position with Haven Senior Horizons of Phoenix, 6 Arizona. Plaintiff claims that Defendant wrongfully terminated her on the basis of her 7 disability. Defendant alleges that Plaintiff is not capable of performing the essential 8 duties of the Behavioral Health Technician job for which she applied, either with or 9 without reasonable accommodations. Defendant asserts that Plaintiff is not a qualified 10 individual under the Americans with Disability Act (“ADA”) or the Arizonans with 11 Disabilities Act (“AzDA”) and her claims are without merit. 12 On February 20, 2015, the parties filed a Joint Rule 26(f) Case Management 13 Report pursuant to Rules 16 and 26, Fed. R. Civ. P. The Court thereafter issued its 14 Scheduling Order. (Doc.31). By stipulation of the parties or motion, the Court has 15 extended discovery deadlines five times. (Docs. 36, 42, 57, 70, 72). The discovery 16 deadline in this case is April 5, 2016. (Doc. 70 at 1). By Joint Stipulation to Extend Rule 17 16 Deadlines (Doc. 69) filed on Nov. 23, 2015, the parties stated that they had “agreed 18 that Plaintiff’s independent medical examination will be conducted within a day or two 19 after mediation concludes. The parties have so agreed in order to minimize the burdens 20 and expenses of travel for Plaintiff in recognition of her condition.” On the basis of the 21 parties’ avowals, the Court granted an extension of the scheduling deadlines. Plaintiff 22 now asserts that she has a new job in North Carolina, has health issues, and wants her 23 independent medical examination (“IME”) to be conducted in North Carolina, 24 presumably at the expense of Defendant. 25 conducted telephonically. Defendant seeks an order compelling Plaintiff to return to 26 Arizona for her IME as previously stipulated. Plaintiff also requests that mediation be 27 28 -2- 1 II. LEGAL STANDARDS 2 A. IMEs 3 Rule 35(a)(1), Fed. R. Civ. P., authorizes the court where an action is pending to 4 order a party whose physical condition “is in controversy to submit to a physical or 5 mental examination by a suitably licensed or certified examiner.” Rule 35 is permissive, 6 not mandatory. See Mendoza v. Peoria, No. CV-13-258-PHX-NVW, 2013 WL 5705365, 7 at *2 (D. Ariz. Oct. 21, 2013). Absent agreement of the parties, a party seeking an order 8 pursuant to Rule 35 must file a motion showing “good cause” before an IME may be 9 authorized with “notice to all parties and the person to be examined[.]” Fed. R. Civ. P. 10 35(a)(2)(A). An IME order “must specify the time, place, manner, conditions and scope 11 of the examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 12 35(a)(2)(B). The burden of proof is on the moving party to show that a person’s medical 13 condition is in controversy and good cause exists for a physical examination. See Nava v. 14 City of Shafter, No. 1:12–cv–00010–AWI–JLT, 2013 WL 5278890, at *1–2 (E.D. Cal. 15 Sept. 18, 2013) (citing Schlagenhauf v. Holder, 379 U.S. 104 (1964)). 16 plaintiff's physical condition is ‘in controversy’ when the condition is a subject of the 17 litigation.” Id. (citing Haqq v. Stanford Hospital & Clinics, No. C 06-05444 JW (RS), 18 2007 WL 1593224, at *1 (N.D. Cal. June 1, 2007)) (citation omitted). “Good cause” 19 generally requires a showing of specific facts justifying the exam. Id. Even if the 20 moving party establishes both a physical condition in controversy and good cause, it is 21 within the discretion of the court whether to order an IME. Storlie v. State Farm Mut. 22 Auto. Ins. Co., No. 2:09–cv–02205–GMN–PAL, 2010 WL 3488982, at *4 (D. Nev. Aug 23 31, 2010) (citing Hardy v. Riser, 309 F. Supp. 1234, 1241 (N.D. Miss. 1970)) (“Even 24 when the ‘good cause’ and ‘in controversy’ requirements are met, it is still in the sound 25 discretion of the trial court whether to order the examination”); Shirsat v. Mutual Pharm. 26 Co., 169 F.R.D. 68, 70 (E.D. Pa. 1996)). “A 27 B. Protective Orders 28 Rule 26(c), Fed. R. Civ. P., provides that any person from whom discovery is -3- 1 sought may seek a protective order in the court where the action is pending. “The court 2 may, for good cause, issue an order to protect a party or person from annoyance, 3 embarrassment, oppression, or undue burden or expense. . . .” Fed. R. Civ. P. 26(c)(1). 4 The moving party bears the burden of showing a particularized need for protection. See 5 Fausto v. Credigy Services Corp., 251 F.R.D. 436, 437-38 (N.D. Cal. 2008). “Broad 6 allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not 7 satisy the Rule 26(c) test.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F. 2d 470, 476 (9th 8 Cir. 1992) (citation and internal quotation marks omitted). 9 10 III. DISCUSSION 11 There is no dispute that Defendant is entitled to a Rule 35(a), Fed. R. Civ. P., 12 physical examination and functional assessment of Plaintiff. Plaintiff has placed her 13 physical condition and ability to perform the essential functions of a job at issue, and 14 Plaintiff is a T-1 paraplegic who is confined to a wheelchair. This is a case for damages 15 under the ADA and AzDA. Good cause exists for an IME to be performed pursuant to 16 Rule 35 (a), Fed. R. Civ. P. See Mendoza, 2013 WL 5705365, at *2 (finding good cause 17 exists for independent medical exam when plaintiff places his medical condition at issue). 18 Plaintiff clearly has been on notice regarding the necessity of this examination since Nov. 19 23, 2015. She previously agreed to the examination and is bound by her stipulation. 20 Defendant need only provide the time, place, manner, conditions, and scope of the 21 examination for the Court to issue its order. The Court in its sound discretion will order 22 an IME. 23 In addition, it is the general rule that the party being examined must pay her own 24 travel expenses to the examination in the forum state. See McCloskey v. United Parcel 25 Service General Services Co., 171 F.R.D. 268, 270 (D. Or. 1997). Plaintiff has not 26 proven that undue financial hardship exists to support Defendant “fronting” Plaintiff’s 27 travel expenses, subject to reimbursement at the time of trial. See id. No authority has 28 been cited, nor does authority exist, to support Plaintiff’s suggestion that Defendant’s -4- 1 chosen physician should be ordered to travel to North Carolina at Defendant’s expense to 2 accomplish the IME. 3 The Court further finds that Plaintiff has failed to meet her burden of proof for the 4 issuance of a protective order pursuant to Rule 26(c), Fed. R. Civ. P. Plaintiff asserts that 5 she is within a ninety day probationary period with her new employer and cannot miss 6 any work without jeopardizing her position. Yet Plaintiff does not provide her date of 7 hire for her job. 8 Nevertheless, Plaintiff fails to tell the Court why or attach any supporting medical 9 documentation proving that air travel is medically contraindicated. Plaintiff flew to 10 Arizona for an interview with Defendant, as alleged in her First Amended Complaint. 11 She flew to North Carolina for her current job. The Court has no basis upon which to 12 conclude that Plaintiff cannot fly to Arizona for an IME and settlement conference. Plaintiff further suggests that air travel is medically ill-advised. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the reasons set forth above, IT IS ORDERED granting Defendant’s Motion to Compel Medical Examination and Functional Skills Assessment by Defendant’s Expert (Doc. 74). IT IS FURTHER ORDERED denying Plaintiff’s Request for Protective Order (Doc. 75). IT IS FURTHER ORDERED that Defendant provide the Court with a form of the order setting forth all the information required pursuant to Rule 35(a), Fed. R. Civ. P. Plaintiff shall travel to Arizona for an IME and settlement conference within sixty (60) days of the filing of this order at a date and time available for counsel, the settlement judge, and Defendant’s expert. Defendant’s expert report deadline is hereby extended to accommodate the scheduling of the IME. Defendant’s expert report shall be exchanged within thirty (30) days of the IME. Plaintiff’s rebuttal report shall be exchanged within thirty (30) days of receipt of the IME report. IT IS FURTHER ORDERED affirming the March 14, 2016 deadline for -5- 1 engaging in good faith settlement talks. 2 conference before a Magistrate Judge shall be filed by February 11, 2016. 3 (Doc. 70). Dated this 4th day of February, 2016. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Any requests for a settlement

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