Lopez v. City of Imperial et al
Filing
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ORDER Granting Defendants' 19 Ex Parte Motion Compelling Independent Medical Examination of Plaintiff. Signed by Magistrate Judge William V. Gallo on 1/21/2014. (knb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JESUS LOPEZ,
Plaintiff,
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v.
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CITY OF IMPERIAL, et al.,
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Defendants.
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Civil No.13-0597-BEN(WVG)
ORDER GRANTING
DEFENDANTS’ EX PARTE
MOTION COMPELLING
INDEPENDENT MEDICAL
EXAMINATIONS OF PLAINTIFF
(DOC. NO. 19)
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Defendants have filed an Ex Parte Motion Compelling
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Independent Medical Examinations (“IMEs”) of Plaintiff
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(“Motion”). Plaintiff has filed an Opposition to Defen-
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dants’ Motion. Defendants have filed a Reply to Plain-
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tiff’s Opposition and a Supplemental Brief. The Court,
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having reviewed the moving, opposition, reply and supple-
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mental papers of counsel, and the record in this case,
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HEREBY GRANTS Defendants’ Motion.
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A. BACKGROUND
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On December 12, 2012, Plaintiff filed his Complaint
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in the Imperial County Superior Court. On March 14, 2013,
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Defendants removed the case to this Court. The Complaint
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contains, inter alia, allegations regarding the damages
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suffered by Plaintiff as a result of the incident de-
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scribed in the Complaint. The damages alleged in the
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Complaint stem from (a) a severe concussion; (b) torn
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ligaments in Plaintiff’s knees and forearm; (c) severe
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burns from mace or pepper spray; and (d) Plaintiff may
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need surgery on his knee and removal of a testicle.
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(Complaint at 4, para. XII).
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On July 1, 2013, the Court issued a Case Management
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Conference Order Regulating Discovery (“CMC Order”). The
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CMC Order states, in pertinent part, that (a) on or before
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December 20, 2013, all fact discovery shall be completed;
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(b) on or before January 24, 2014, the parties shall
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exchange a list of all expert witnesses to be called at
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trial; (c) any party may supplement its expert designation
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by February 7, 2014; (d) designated expert witnesses shall
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provide to all other parties their expert witness reports
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by March 7, 2014; and (e) designated expert witnesses may
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supplement their expert reports to contradict or rebut
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evidence on the same subject matter identified in an
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expert report submitted by another party, by April 4,
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2014.
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On June 14, 2013, Defendants received Plaintiff’s
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medical records which presumably supported1/ Plaintiff’s
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Defendants do not inform the Court about the contents of the medical
records received.
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allegations regarding the injuries Plaintiff sustained as
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a result of the incident described in the Complaint.
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On December 3, 2013, Defendants took Plaintiff’s
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deposition. At the deposition, Plaintiff testified regard-
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ing his injuries. His testimony included that he suffers
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from (a) neck, back and leg pain; (b) testicle pain; (c)
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memory loss; (d) headaches; and (e) jaw pain.
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On December 13, 2013, Plaintiffs and Defendants
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filed a Joint Motion For Continuance of Discovery Dates.
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On December 17, 2013, the Court issued an Order Granting
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In Part And Denying In Part the Joint Motion. In the
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Order, the Court quoted from paragraph 5 of the CMC Order
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issued in this case, which clearly states:
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... all discovery under Rules 30-36 of the
Federal Rules of Civil Procedure must be
initiated a sufficient period of time in
advance of the (discovery) cut-off date, so
that it may be completed by the cut-off date,
taking into account the times for services,
notice and response as set forth in the Federal Rules of Civil Procedure. (emphasis
added).
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The Order also allowed further discovery to be
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conducted,
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reasonably raised by Plaintiff’s deposition.” (“December
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17, 2013 Order,” at 3). The Order extended the discovery
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cut-off date to January 20, 2014 for the above-noted
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discovery.
limited
that
discovery
“to
only
that
Defendants now seek the IMEs of Plaintiff by a
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but
neurosurgeon,
orthopedist,
dentist/oral
surgeon2/,
and
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On December 27, 2013, Plaintiff’s counsel agreed to allow Defendants to
conduct an IME by a dentist. Therefore, the Court will not address the propriety
of that IME in this Order.
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urologist. Defendants argue that at Plaintiff’s December
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3, 2013 deposition, they became aware of Plaintiff’s
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continuing complaints of (a) neck, back and leg pain; (b)
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testicle pain; (c) memory loss; (d) headaches; and (e) jaw
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pain. Plaintiff opposes the IMEs as requested by Defen-
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dants because the sought IMEs are not follow-up to discov-
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ery on issues raised in Plaintiff’s deposition.
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B. FEDERAL RULE OF CIVIL PROCEDURE 35
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Federal Rule of Civil Procedure 35 authorizes a
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court to “order a party whose... physical condition... is
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in controversy to submit to a physical... examination by
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a suitably licensed or certified examiner.” Fed. R. Civ.
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P. 35(a)(1). However, the order “may be made only on a
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motion for good cause.” Fed.R. Civ. P. 35(a)(2)(A). These
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requirements necessitate “an affirmative showing by the
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movant that each condition as to which the examination is
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sought is really and genuinely in controversy and that
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good cause exists for ordering each particular examina-
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tion.” Juarez v. Autozone Stores, Inc., 2011 WL 1532070 at
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*1 (S.D. Cal. 2011), citing Schlagenhauf v. Holder, 379
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U.S. 104, 118 (1964).
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Factors that courts have considered in assessing
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whether “good cause” exists include, but are not limited
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to, “the possibility of obtaining the desired information
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by other means, whether Plaintiff plans to prove (his)
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claim through the testimony of expert witnesses, whether
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Plaintiff is claiming ongoing (injury).” Juarez, supra at
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*1, citing Impey v. Office Depot, Inc., 2010 WL 2985071 at
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*21 (N.D. Cal. 2010), Turner v. Imperial Stores, 161
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F.R.D. 89, 97-98 (S.D. Cal. 1995).
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Fed. R. Civ. P. 35 does not specify a deadline for
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conducting an IME. Guitron v. Wells Fargo Bank, 2011 WL
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6012595 at *1 (N.D. Cal. 2011). Some courts do not catego-
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rize
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“expert” discovery. Lester v. Mineta, 2006 WL 3741949 at
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*1-2 (N.D. Cal. 2006). However, some courts have found
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that Fed.R.Civ. P. 26(a)(2) requires that the IME report
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be produced at the time of expert witness disclosures,
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meaning that an IME must occur before expert witness
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disclosures. Miksis v. Howard, 106 F.3d 754, 758 (7th Cir.
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1997). But in Minnard v Rotech Health, Inc., 2008 WL
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150502 at *2-3 (E.D. CA 2008), the court determined that
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an IME report is an expert witness report because the
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examining expert would not merely recite the objective
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results
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results and offer conclusions and opinions for the trier
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of fact. Minnard has been followed by Silva v. Mercado
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Food Enterprise, Inc., 2012 WL 174926 at *5 (E.D. CA
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2012).
Rule
of
35
examinations
the
as
examination,
either
but
“non-expert”
would
interpret
or
the
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The law in this area does not appear to be well
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settled. Whether IMEs are fact or expert witness discovery
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certainly could influence the outcome of this dispute.
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Perhaps IMEs are best described as hybrid, both fact and
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expert witness discovery, depending on which view one
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finds most persuasive. One view of Rule 35 is that IME
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examiners are “experts employed only for trial prepara5
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tion,” pursuant to Fed. R. Civ. P. 26(b)(4)(B). As such,
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a court will typically allow an examinee to depose or call
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a Rule 35 IME examiner as a witness on a showing of
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“exceptional circumstances.” Lehan v. Ambassador Programs,
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Inc., 190 F.R.D. 670, 671-672 (E.D. WA 2000); Carroll v.
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Praxair, Inc., 2007 WL 437697 at *2 (W.D. LA 2007). Of
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course, Rule 35 IMEs often arise in the context of devel-
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oping expert testimony for trial with the expert witnesses
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then subject to the discovery obligations of Rules 26 and
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30.
As discussed later in footnote 3 of this Order,
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clearly
the
parties,
and
especially
Defendants,
were
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dilatory in not moving for IMEs before now, notwithstand-
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ing that Plaintiff has just recently been deposed. Defen-
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dants had sufficient information available to them from
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the Complaint alone and from Plaintiff’s medical records
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they obtained during discovery, to give them ample reason
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and sufficient justification to seek Rule 35 IMEs before
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now during fact discovery. Fortunately for Defendants,
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given the lack of clarity as to whether IMEs are relegated
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to fact discovery or cross over into expert discovery, the
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Court will give the benefit of the doubt to Defendants,
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especially in light of the delay in deposing Plaintiff.
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Accordingly, the Court tends to agree with Minnard
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and Silva. If the IME examiner will offer opinions and
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conclusions regarding the objective facts derived from an
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examination, the IME and the report produced by the IME
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examiner is expert discovery, not fact discovery. There6
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fore, the timing of a motion for an IME is dictated by the
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terms of the scheduling order regarding expert witness
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discovery, as set forth in the case.
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Here, the CMC Order issued in this case states that
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Plaintiff and Defendants have until January 24, 2014 to
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designate expert witnesses to be called at trial. There-
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fore, Defendant’s Motion To Compel the requested IMEs is
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timely.
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C. GOOD CAUSE EXISTS TO ORDER THE IMES REQUESTED BY
DEFENDANTS
As previously noted in this Order, Plaintiff testi-
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fied at his deposition that he continues to suffer from
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(a) neck, back and leg pain; (b) testicle pain; (c) memory
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loss; (d) headaches; and (e) jaw pain. Defendants seek
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IMEs by a neurosurgeon (presumably to examine Plaintiff
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and offer a report and testimony regarding Plaintiff’s
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concussion, memory loss and headaches), an orthopedist
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(presumably to examine Plaintiff and offer a report and
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testimony regarding Plaintiff’s neck, back, knee, and leg
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pain), and a urologist (presumably to examine Plaintiff
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and offer a report and testimony regarding Plaintiff’s
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testicle pain).
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1. Good Cause Factors
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The Court must find good cause to order the IMEs
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requested by Defendants. Therefore, the Court analyzes
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below the factors commonly used to find good cause:
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a. The possibility of obtaining the information
by other means
Here, there is no possibility that Defendants can
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obtain the information, opinions and conclusions of an
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expert witness pursuant to Rule 35 in any other way, but
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to have Plaintiff submit to the IMEs. Defendants are not
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required to simply rely on Plaintiff’s expert witnesses
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regarding Plaintiff’s injuries and the damages he suffered
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therefrom. Therefore, this factor weighs in favor of
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Defendants.
b. Whether Plaintiff intends to prove his claims
of injuries sustained through the testimony of
expert witnesses
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At
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this
time,
the
Court
can
not
conclude
that
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Plaintiff intends to prove his sustained injuries through
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the testimony of expert witnesses. As previously noted in
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this Order, Plaintiff’s and Defendants’ expert witness
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disclosures have been ordered to be made on January 24,
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2014. The Court notes that if Plaintiff does not designate
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an expert witness to testify about one or some of his
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alleged injuries, an IME regarding that alleged injury may
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not be necessary or required. As a result, this factor
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does not weigh in favor of Plaintiff or Defendants.
c. Whether the desired materials are relevant
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Plaintiff claims numerous injuries that resulted
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from the incident described in the Complaint. The alleged
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injuries
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damages. There can be little dispute that the information,
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opinions,
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alleged injuries that will be presented after the re-
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quested IMEs are relevant to Plaintiff’s claims in this
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action. Therefore, this factor weighs in favor of Defen-
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dants.
serve
and
as
the
basis
conclusions
for
Plaintiff’s
pertaining
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to
claimed
Plaintiff’s
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d. Whether Plaintiff claims ongoing injuries
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As previously noted in this Order, Plaintiff testi-
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fied at his December 3, 2013 deposition that he continues
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to suffer from numerous injuries sustained in the incident
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described in the Complaint. Therefore, this factor weighs
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in favor of Defendants.
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The analysis of the factors noted above show, and
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the Court finds, that good cause exists to order the IMEs
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as requested by Defendants. Plaintiff’s Ex Parte Motion
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Compelling Independent Medical Examinations of Plaintiff
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is GRANTED. The IMEs requested by Defendants shall be
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scheduled immediately and shall comply with the require-
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ments of Fed. R. Civ. P. 35.3/
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IT IS SO ORDERED.
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DATED:
January 21, 2014
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Hon. William V. Gallo
U.S. Magistrate Judge
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The Court notes that Defendants’ Motion, Plaintiff’s Opposition and
Defendants’ Reply are severely lacking in the analysis of whether Plaintiff’s
Motion was timely filed, whether IMEs are subject to the fact discovery cut-off
or the expert witness discovery cut-off, and whether good cause exists for the
Court to order the IMEs requested by Defendants. As previously noted in the
December 17, 2013 Order of this Court, it appears that Plaintiff and Defendants
have not been diligent in pursuing and defending this action.
As soon as Defendants were served with Plaintiff’s Complaint, they were
aware that some of Plaintiff’s alleged damages stemmed from orthopedic and
testicular injuries. Yet, Defendants waited until December 3, 2013, almost one
year after the Complaint was filed, to take Plaintiff’s deposition at which they
confirmed that Plaintiff’s injuries were ongoing. The Court has not been made
fully aware of how long Plaintiff’s deposition was delayed due to his health
problems. However, had Defendants taken Plaintiff’s deposition earlier in this
litigation, they would have learned about Plaintiff’s other alleged injuries.
Instead, they waited until approximately three weeks before the fact discovery
cut-off to learn about Plaintiff’s other alleged injuries, and to seek IMEs of
Plaintiff, without analyzing whether an IME is fact or expert witness discovery,
thereby believing that they needed to file an ex parte motion to compel the
requested IMEs.
Despite the court’s warning in the December 17, 2013 Order that the parties
immediately begin discovery to follow-up on Plaintiff’s December 3, 2013
deposition, Plaintiff requested that Defendants not file their motion to compel
the IMEs for at least one week, thereby further delaying the resolution of their
dispute.
The recalcitrant behavior displayed by counsel in this case as noted above,
will no longer be countenanced by the Court.
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