S.E. et al v. Sowers et al
Filing
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ORDER: The parties' joint discovery dispute (Doc. 124 ) is resolved as set forth herein. Signed by Judge Dominic W Lanza on 1/27/2025. (KJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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S.E., et al.,
No. CV-22-02011-PHX-DWL
Plaintiffs,
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v.
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Knight Transportation Incorporated, et al.,
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Defendants.
ORDER
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Pending before the Court is the parties’ joint notice of discovery dispute. (Doc.
124.) The Court concludes that oral argument is unnecessary and rules as follows.
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As background, this is a diversity action stemming from a March 2019 collision
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between a motorcycle that was being driven by Julio Cesar Medina (“Medina”) and a
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tractor-trailer that was owned by Knight Transportation, Inc. (“Knight”) and was being
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driven by Danny George Sowers (“Sowers”). (Doc. 3-1.) Medina was killed during the
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collision. (Id.) In this action, Medina’s minor children (together, “Plaintiffs”) assert
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negligence-based claims against Knight and Sowers. (Id.)
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The discovery dispute concerns Plaintiffs’ desire to conduct a Rule 35 physical
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examination of Sowers. (Doc. 124.) Plaintiffs contend the requested examination is
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necessary because one of their theories of liability is that Sowers, who admittedly was not
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wearing corrective lenses for distance vision at the time of the accident, should have been
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doing so. (Id. at 2.) Although Plaintiffs believe they already have some proof that Sowers
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should have been wearing corrective lenses for distance vision when driving—for example,
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Sowers’s commercial driver’s license includes the notation “RESTRICTIONS: B-
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Corrective Lens Must Be Worn”—the issue remains disputed because “Defendants are
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taking the position that Sowers was not required to wear corrective lenses for distance
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vision while driving and that the B restriction on his driver’s license could mean he was
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required to wear corrective lenses for near vision (i.e., reading glasses), not distance
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vision.” (Id.) Plaintiffs continue: “Plaintiffs asked Defendants to stipulate that Sowers was
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required to wear corrective lenses for distance vision while driving, and thus eliminate the
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need for an eye exam, but Defendants refused.” (Id. at 3.) Meanwhile, Defendants confirm
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they are unwilling to “stipulate to Plaintiff’s request regarding distance vision” but contend
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the requested examination is still unnecessary because (1) they “have already admitted
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Defendant Sowers’ negligence and that he was acting within the scope and course of his
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employment with Defendant Knight at the time of the accident”; (2) “Plaintiff has failed to
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provide any evidence that Defendant Sowers’ eyesight was a contributing factor to the
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accident”; and (3) “Defendant Sowers already admitted he was not wearing corrective
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lenses for distance at the time of the accident.” (Id. at 5-6.)
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Rule 35 provides the starting point for evaluating these objections. Under Rule
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35(a)(1), “[t]he court where the action is pending may order a party whose mental or
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physical condition . . . is in controversy to submit to a physical or mental examination by
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a suitably licensed or certified examiner.” Meanwhile, under Rule 35(a)(2)(A), such an
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order “may be made only on motion for good cause and on notice to all parties and the
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person to be examined.” As the Supreme Court has explained, “Rule 35, therefore, requires
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discriminating application by the trial judge, who must decide, as an initial matter in every
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case, whether the party requesting a mental or physical examination or examinations has
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adequately demonstrated the existence of the Rule’s requirements of ‘in controversy’ and
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‘good cause,’ which requirements . . . are necessarily related.” Schlagenhauf v. Holder,
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379 U.S. 104, 118-19 (1964).
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meaningless if good cause could be sufficiently established by merely showing that the
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desired materials are relevant, for the relevancy standard has already been imposed by Rule
“The specific requirement of good cause would be
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26(b).” Id. at 118 (cleaned up).
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Rule 35’s “in controversy” and “good cause” requirements are both satisfied here.
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There is an unresolved controversy over whether Sowers was required to wear a particular
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type of corrective lens (which, all parties agree, he was not wearing) at the time he was
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involved in the accident that killed Plaintiffs’ father. If Sowers was in fact required to wear
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those lenses while driving, a factfinder could easily conclude that his failure to do so was
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negligent. And although Defendants have stipulated to the fact of Sowers’s negligence in
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causing the accident, they have not stipulated to his degree of negligence. As Plaintiffs
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correctly note in their portion of the joint statement: “Although Defendants have admitted
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Sowers’ negligence, they will not agree that Sowers was 100% at fault for Decedent’s death
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and are making a comparative fault claim against Decedent. . . . Whether Sowers was
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required to wear corrective lenses for distance vision at the time of the crash, which he was
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not wearing, is directly relevant to the degree of Defendants’ fault. Plaintiffs are entitled
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to present the results of an eye examination to the jury, to be considered in its determination
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of degrees of fault.” (Id. at 4.)1
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Defendants’ next objection is that the requested examination will not, in fact,
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produce any information about Sowers’s visual acuity at the time of the accident.
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Defendants contend that “it is unclear how Plaintiffs’ expert ophthalmologist can opine
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that an eye exam and visual acuity test today could and would establish whether Sowers
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required corrective lenses for distance vision at the time of the subject accident almost six
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ago.” (Id. at 6.) Defendants further note that Sowers’s “eyesight has significant declined
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due to ongoing health issues since his deposition in May 2024,” which renders it even more
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unlikely that an examination today would reveal relevant information about his eyesight in
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March 2019. (Id.) In response, Plaintiffs contend: “Per Plaintiffs’ expert ophthalmologist,
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an eye exam and visual acuity test today could and would establish whether Sowers
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required corrective lenses at the time of the subject crash approximately six years ago. If
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This conclusion makes it unnecessary to address the parties’ arguments over the
relevance of the requested examination in supporting claims for aggravated negligence
and/or punitive damages.
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Sowers is nearsighted today, then he was nearsighted 10 years ago. While his eyesight
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could have declined over the past 6 years, he would not suddenly be nearsighted today if
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he was not nearsighted 6-10 years ago. Myopia (nearsightedness) stays stable in middle
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age and Sowers is currently 62 years old.” (Id. at 3.)
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Plaintiffs have the better of this argument. At most, Defendants have identified a
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possibility that the requested examination will not yield relevant information about
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Sowers’s visual acuity as of March 2019, even though Plaintiffs’ expert believes the
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examination will be useful for that purpose. The mere possibility that the examination will
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prove unhelpful does not undermine the existence of good cause.
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Defendants’ final argument is that the requested examination should be disallowed
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because it would result in an undue burden on Sowers. (Doc. 124 at 8.) Defendants
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elaborate: “Since the accident occurred, Defendant Sowers[’s] health has severely
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declined. According to information received from his daughter, he is currently living in a
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skilled nursing facility, which is in stark contrast to his health condition at his deposition
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in May 2024. He can no longer walk and has been bed ridden for the last six months.
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Furthermore, his eyesight and memory have significantly declined. Given Defendant
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Sowers’ current medical condition, he is not in the place to undergo an eye exam.” (Id. at
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5.) Plaintiffs respond as follows: “[T]his joint brief is the first time Plaintiffs are receiving
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confirmation that Sowers is bedridden. Plaintiffs request a written declaration regarding
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Sowers’ medical condition as it relates to his inability to travel to an ophthalmologist’s
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office to undergo an eye exam. Plaintiffs will require additional time to determine whether
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an eye exam can be performed bedside, at Sowers’ skilled nursing facility.” (Id.)
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This issue presents a close call. On the one hand, the Court is sympathetic to
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Sowers’s medical condition and does not wish to expose him to any unnecessary demands.
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On the other hand, Plaintiffs have established a clear entitlement to more information about
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Sowers’s visual acuity at the time of the accident (and Defendants’ refusal to stipulate on
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that issue has placed it firmly in controversy). Under the circumstances, the best path
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forward is to simply clarify through this order that Sowers must submit to a Rule 35
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examination regarding his eyesight and leave it to the parties to meet and confer about
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where and how that examination will take place. If the parties are unable to resolve those
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issues after meeting and conferring, they may raise their dispute through another joint
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notice.
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Accordingly,
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IT IS ORDERED that the parties’ joint discovery dispute (Doc. 124) is resolved
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as set forth above.
Dated this 27th day of January, 2025.
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