Ward v. Union Pacific Railroad Company et al

Filing 41

Order re 36 Granting Defendants' Motion for Independent Medical Examination. Signed by Judge Koh on 8/4/2011. (lhklc3, COURT STAFF) (Filed on 8/4/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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FRED WARD,

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Plaintiff,
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v.
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UNION PACIFIC RAILROAD COMPANY, ET )
AL.,
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Defendants.
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Case No.: 10-CV-01853-LHK
ORDER REGARDING DEFENDANTS’
REQUEST FOR ORTHOPEDIC
INDEPENDENT MEDICAL
EXAMINATION OF PLAINTIFF

In this action, Plaintiff claims that he was injured by falling into a hole at Defendants’

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premises. The parties had scheduled Plaintiff’s independent medical examination (IME) for June

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7, 2011. However, due to a scheduling mishap, the IME did not take place. Defendants sought to

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re-schedule the IME, but have been unable to obtain an agreed-upon date from Plaintiff’s counsel.

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Defendants now request an Order from the Court requiring Plaintiff’s IME by a date certain.

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Plaintiff opposes on the ground that Defendants’ request is untimely.

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Federal Rule of Civil Procedure provides:
35. Physical and Mental Examinations

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(a) Order for an Examination.
(1) In General.

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Case No.: 10-CV-01853-LHK
ORDER REGARDING DEFENDANTS’ REQUEST FOR INDEPENDENT MEDICAL EXAMINATION

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The court where the action is pending may order a party whose mental or physical
condition — including blood group — is in controversy to submit to a physical or
mental examination by a suitably licensed or certified examiner. The court has the
same authority to order a party to produce for examination a person who is in its
custody or under its legal control.

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(2) Motion and Notice; Contents of the Order.

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The order:

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(A) may be made only on motion for good cause and on notice to all parties and the
person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination,
as well as the person or persons who will perform it.

United States District Court
For the Northern District of California

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See Fed. R. Civ. P. 35. Plaintiff has clearly placed his physical condition “in controversy” by

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seeking damages for pain and suffering, emotional distress, present and future medical expenses,

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and loss of earnings due to inability to return to work. The Court is disappointed in the parties’

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inability to meet and confer and to resolve this issue without unnecessary briefing, merely detailing

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alleged missed phone calls and lack of communication among counsel.

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Accordingly, Plaintiff must submit to an IME with Martha Singer, M.D. in either the

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Oakland or Emeryville office, by Monday, August 15, 2011. As the parties are aware, the

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dispositive motion filing deadline is August 25, 2011. Thus, the parties should schedule the IME

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as soon as practicable. The examination shall be limited to a complete medical history, an

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evaluation of Plaintiff’s range of motion, standard orthopedic tests, and, if necessary, X-rays. The

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examination shall not include any test or procedure that is painful, protracted, or intrusive. Failure

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to comply with this Order risks sanctions, including dismissal of Plaintiff’s case without prejudice.

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IT IS SO ORDERED.

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Dated: August 4, 2011

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-01853-LHK
ORDER REGARDING DEFENDANTS’ REQUEST FOR INDEPENDENT MEDICAL EXAMINATION