Bohnel et al v. Jetblue Airways Corporation

Filing 84

ORDER signed by Magistrate Judge Deborah Barnes on 7/27/2021 GRANTING IN PART AND DENYING IN PART 76 Motion for Discovery. (Zignago, K.)

Case 2:18-cv-00081-WBS-DB Document 84 Filed 07/27/21 Page 1 of 7
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHELLE HILL, an individual, and
ARIEL EPSTEIN POLLACK, an
individual,

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Plaintiffs,
v.
JETBLUE AIRWAYS CORPORATION, a
Delaware corporation,
Defendant.

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ERICKA BOHNEL, an individual, and
ROSA MARTINEZ, an individual,
Plaintiffs,

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No. 2:17-cv-1604 WBS DB

No. 2:18-cv-0081 WBS DB

ORDER

v.
JETBLUE AIRWAYS CORPORATION, a
Delaware corporation,
Defendant.

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On July 23, 2021, this matter came before the undersigned pursuant to Local Rule

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302(c)(1) for hearing of defendant’s motion for discovery. Attorneys Rachel Luke and Glenn

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Guenard appeared via Zoom on behalf of the plaintiffs. Attorney Ashley Shively appeared via
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Case 2:18-cv-00081-WBS-DB Document 84 Filed 07/27/21 Page 2 of 7
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Zoom on behalf of the defendant. Oral argument was heard and the motions were taken under

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submission. The parties’ dispute concerns two issues: (1) plaintiffs’ Rule 35 examinations; and

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(2) plaintiffs’ disclosures with respect to the calculation of damages.

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I.

Plaintiffs’ Rule 35 Examinations
The court may order a Rule 35 Independent Medical Examination “only on motion for

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good cause” and that motion must “specify the time, place, manner, conditions, and scope of the

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examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2)(A)-

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(B). Here, the parties do not dispute the propriety of the Rule 35 examinations and each side has

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submitted a proposed order with respect to those examinations. (ECF Nos. 80-2 & 80-3.1 )

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Plaintiff, however, has made three requests with respect to the examinations.

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A.

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Plaintiffs request the presence of a third party—a licensed nurse—during the examinations

Third Party and Audio Recording

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for emotional support as well as an audio recording of the examinations. Whether to “either

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allow a tape recorder or a third person at the examination of plaintiff raises only a single issue”

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and depends on the facts of each case. Hertenstein v. Kimberly Home Health Care, Inc., 189

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F.R.D. 620, 628-30 (D. Kan. 1999).
“Three general reasons may argue the presence of a third person or recording device at a

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Fed. R. Civ. P. 35(a) examination: (1) fear that the examiner, as a person retained by an opponent,

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will improperly conduct the examination to obtain admissions or other damaging concessions

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from the examinee; (2) fear that the examiner will utilize improper, unconventional, or harmful

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examination techniques; and (3) a need for emotional support or comfort during the

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examination.” Id. at 630.
Here, plaintiffs assert that they “have a demonstrated need for emotional support” because

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“they will be describing past trauma associated with the JetBlue Flight 429 severe turbulence

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event.” (JS (ECF No. 80-1) at 7.) “While federal courts in some instances have permitted an

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observer in a Rule 35 examination, ‘[t]he majority rule adopted by the federal courts is that the

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For purposes of clarity and simplicity, the citation here and throughout is to the docket in Hill,
No. 2:17-cv-1604 WBS DB.
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Case 2:18-cv-00081-WBS-DB Document 84 Filed 07/27/21 Page 3 of 7
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court may, and often should, exclude third-party observers, including counsel, from medical or

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psychiatric evaluations.’” Flack v. Nutribullet, L.L.C., 333 F.R.D. 508, 517 (C.D. Cal. 2019); see

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also Hertenstein, 189 F.R.D. at 631 (finding “no right to the presence of any third person or

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mechanical recording device at the examination” and that “the presence of a mechanical

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recording device inappropriate under the facts of this case”); Shirsat v. Mutual Pharmaceutical

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Co., Inc., 169 F.R.D. 68, 70 (E.D. Pa. 1996) (“This Court finds that an observer, court reporter, or

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recording device, would constitute a distraction during the examination and work to diminish the

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accuracy of the process.”); Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 609-10 (C.D. Cal.

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1995) (“Third party observers may, regardless of their good intentions, contaminate a mental

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examination.”).

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While the undersigned is cognizant of the challenges inherent in a Rule 35 examination,

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plaintiffs have failed to make a showing as to why any plaintiff—let alone all plaintiffs—require

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emotional support during these examinations or why these examinations should be recorded.

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Moreover, “[e]ven where legitimate concerns exist, many courts have emphasized that there are

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‘other, less drastic means of addressing them,’ including the provision of a Rule 35 examination

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report to the plaintiff for review; the opportunity for plaintiff to depose the physician, cross-

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examine the physician at trial, and introduce contrary expert evidence; and the opportunity to seek

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exclusion of evidence improperly obtained during the examination from trial.’” Flack, 333

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F.R.D. at 518 (quoting Smoloko v. Unimark Lowby Trans., LLC. 327 F.R.D. 59, 63 (M.D. Penn.

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2018)).

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Accordingly, plaintiffs’ request will not be granted.

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B.

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The parties disagree as how much time should be allowed for each examination. (See

Duration of Plaintiffs’ Examinations

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ECF No. 80-1 at 9; ECF No. 80-2 at 3; ECF No. 80-3 at 3, 7, 11.) The undersigned is cautious of

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the fact that “imposing arbitrary time limits on the examinations would create more problems

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than it would alleviate.” Nazar v. Harbor Freight Tools USA Inc., No 2:18-cv-0348 SMJ, 2020

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WL 4730973, at *4 (E.D. Wash. Mar. 13, 2020); see also Lahr v. Fulbright & Jaworski, L.L.P.,

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164 F.R.D. 196, 202 (N.D. Tex. 1995) (“For the court to intervene and limit the type of
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examination an expert has indicated is necessary in order to analyze plaintiff’s claims would

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subvert the truth finding function inherent in Rule 35 examinations.”).

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That said, as acknowledged at the July 23, 2021 hearing, defendant is requesting up to 14

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hours of examination for each plaintiff. In order to guard against fatigue, the undersigned will

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order that each plaintiff be examined over a two-day period, with each day allowing for 2, four-

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hour examinations (e.g., Monday 8 am to 12pm, & 1 pm to 5 pm, Tuesday 8 am to 12 pm & 1 pm

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to 5 pm), with no less than a one-hour break between examination periods. The parties, however,

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are free to amend this schedule pursuant to their agreement. See Halliday v. Spjute, No. 1:07-cv-

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0620 AWI GSA, 2015 WL 3988903, at *3 (E.D. Cal. June 30, 2015) (“Given Plaintiffs’ concerns

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about mental and emotional fatigue, however, the Court will permit each examination to occur

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over a two day period. Each examination will consist of two, four hour testing sessions. This

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schedule adequately protects Defendants’ need for discovery and Plaintiffs’ concerns of mental

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fatigue.”).

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C.

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After the events at issue in this action plaintiff Ariel Pollack moved from California to

Location of Plaintiff Ariel Pollack’s Examination

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Tennessee. (JS (ECF No. 80-1) at 12.) Due to her “extreme fear of flying” plaintiff Pollack

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requests that the defendant reimburse plaintiff for the travel expenses of both plaintiff “and her

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mother to accompany her to provide comfort.” (Id.)

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“The general rule with respect to the location of depositions is that the plaintiff must

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produce its witnesses in the district in which the plaintiff instituted the action, unless the plaintiff

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has shown financial hardship or inability to attend the deposition in that district.” Aerocrine AB

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v. Apieron Inc., 267 F.R.D. 105, 108 (D. Del. 2010) (quotation omitted); see also In re

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Outsidewall Tire Litigation, 267 F.R.D. 466, 471 (E.D. Va. 2010) (“courts ordinarily presume

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that a plaintiff may be deposed in the judicial district where the action was brought, inasmuch as

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the plaintiff, in selecting the forum, has effectively consented to participation in legal proceedings

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there”); South Seas Catamaran, Inc. v. Motor Vessel Leeway, 120 F.R.D. 17, 21 (D. N.J. 1988)

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(“the general rule requiring plaintiff or its agents to appear for the taking of depositions in the

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district in which the suit is brought”).
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Again, the undersigned is cognizant of the difficulties plaintiff Pollack may encounter in

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appearing for the Rule 35 examinations. However, plaintiff chose to bring this action knowing it

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would be in this district. Moreover, even after the events at issue plaintiff Pollack has flown “on

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occasion,” including to visit family in Maine and in Portland. (JS (ECF No. 80-1) at 12.) While

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plaintiff Pollack is free to take any steps necessary to arrive safely and timely for the

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examinations as seen fit the undersigned finds that plaintiffs have not justified an order requiring

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defendant to reimburse plaintiff Pollack for such costs.
Plaintiffs’ request, therefore, will not be granted.

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II.

Plaintiffs’ Computation of Damages
According to defendant plaintiffs have not provided “even so much as an estimate of

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general damages for each Plaintiff,” but “merely state that the ‘exact amount and categories of

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general damages are currently unknown but will be proven at the time of trial.’” (JS (ECF No.

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80-1) at 13.) Counsel for plaintiffs acknowledged at the July 23, 2021 hearing that plaintiffs are

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seeking general and special damages.

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“The initial disclosure requirement does contemplate ‘some analysis’ and requires more

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than merely setting forth the amount demanded.” Ritchie v. Sempra Energy, CASE NO.

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10cv1513 CAB(KSC), 2014 WL 12637955, at *6 (S.D. Cal. Aug. 4, 2014). Plaintiffs counsel

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asserted at the July 23, 2021 hearing that it is difficult to calculate plaintiffs’ general damages at

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this stage of the action. While that may be true, plaintiffs “should provide [an] assessment of

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damages in light of the information currently available . . . so as to enable [defendant] to

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understand the contours of its potential exposure and make informed decisions as to settlement

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and discovery.” City and County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221

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(N.D. Cal. 2003).

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Nonetheless, as stated by plaintiffs’ counsel at the July 23, 2021 hearing, it does not

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appear that either side provided a copy of plaintiffs’ disclosure with respect to damages. Thus,

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the undersigned cannot say with certainty whether plaintiffs’ disclosure was insufficient.

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Accordingly, the plaintiffs shall reconsider their disclosure in light of this analysis and determine

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whether a supplemental disclosure is warranted. See Design Strategy, Inc. v. Davis, 469 F.3d
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284, 295 (2nd Cir. 2006) (“by its very terms Rule 26(a) requires more than providing—without

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any explanation—undifferentiated financial statements; it requires a ‘computation,’ supported by

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documents”); Agence France Presse v. Morel, 293 F.R.D. 682, 685 (S.D. N.Y. 2013) (“Put

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simply, damages computations and the documents supporting those computations are two

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different things, and Rule 26 obliges parties to disclose and update the former as well as the

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latter.”); Frontline Medical Associates, Inc. v. Coventry Health Care, 263 F.R.D. 567, 569 (C.D.

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Cal. 2009) (“Plaintiff’s initial disclosure, therefore, should disclose a computation of each

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category of damages attributable to each cause of action.”); Burrell v. Crown Cent. Petroleum,

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Inc., 177 F.R.D. 376, 386 (E.D. Tex. 1997) (“Any further compensatory damages not related to

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the issue of mental anguish must be reasonably calculated and disclosed to Crown, however.”).

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If a dispute remains, the parties shall meet and confer over the issue.
CONCLUSION
Upon consideration of the arguments on file and those made at the hearing, and for the

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reasons set forth on the record at that hearing and above, IT IS HEREBY ORDERED that:

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1. Defendant’s motions for discovery (Hill ECF No. 80 & Bohnel ECF No. 76) are

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granted in part and denied in part as stated above; and
2. Defendant JetBlue’s examinations of plaintiffs pursuant to Rule 35 of the Federal
Rules of Civil Procedure shall be conducted as follows:

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The examining providers will be Dr. Peter Sfakianos (an orthopedist) and Dr. Steven

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Mcintire (a neurologist), a neuropsychologist to be determined, and any other physicians reasonably

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disclosed by JetBlue in accordance with the expert discovery schedule. The exams will take place

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as noticed, with reasonable accommodations as to date and time based on plaintiffs’ availability.

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If plaintiffs fail to appear at the exam, as noticed and as agreed, or if plaintiffs or their agents or

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representatives interfere in the exam in any way, plaintiffs will be invoiced for the full amount of

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the exam, and will be subject to any other penalty or sanction as ordered by the court.

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The exams for each plaintiff may take place over a two-day period, with each day allowing

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for 2, four-hour examinations (e.g., Monday 8 am to 12pm, & 1 pm to 5 pm, Tuesday 8 am to 12

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pm & 1 pm to 5 pm), with no less than a one-hour break between examination periods. The parties,
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however, are free to amend this schedule pursuant to their agreement. The estimated length of time

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for the exams is at the discretion of the physician. The orthopedic and neurology exams are not

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expected to last more than three hours each and neuropsychological exams no more than eight

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hours.

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The providers shall conduct exams in the areas of orthopedics, neurology (as to plaintiff

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Pollack only), and neuropsychology. The providers will not inquire into privileged attorney-client

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communications, and any inadvertent disclosure of such communications by plaintiffs will not be

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admissible and will not constitute waiver of the attorney-client privilege.

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The providers will be entitled to ask reasonable questions to facilitate the exam and as

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necessary to complete their reports, including, but not limited to, as it relates to the underlying

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incident, and plaintiffs’ medical history, treatment, and underlying/pre-existing conditions.

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The physicians disclosed by JetBlue will adhere to applicable professional and ethical principles

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and code of conduct.

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Neither plaintiffs nor JetBlue will have an observer present during the exam. Neither

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plaintiffs nor JetBlue will interfere, impede or delay the exam in any way. In the event that any

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problems arise during the exam, the providers will contact counsel in an effort to promptly resolve

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any disputes. Reports of the examinations will be dealt with in accordance with the provisions of

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Rule 35 of the Federal Rules of Civil Procedure or as ordered by the court.

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If plaintiffs’ take the deposition of the providers, the depositions will be conducted remotely

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pursuant to the parties’ agreed-upon protocol, and plaintiffs will be invoiced at the hourly rate, or

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deposition-flat fee rate, as the case may be, of each provider in accord ance with his/her respective

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fee schedules. Plaintiffs and their counsel only should contact the providers through counsel for

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JetBlue. Counsel for JetBlue will inform the providers of the terms of this order.

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Dated: July 27, 2021

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DLB:6
DB/orders/orders.civil/hill1604.oah.072321

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