Lammle v. Ball Corporation et al

Filing 71

ORDER Denying 39 Plaintiff's Motion for Protective Order; Ddenying 40 Plaintiff's Motion to Quash Subpoena; Denying 49 Defendant's Motion for Sanctions, as set forth in the order, by Magistrate Judge Michael J. Watanabe on 9/18/2012.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03248-MSK-MJW
ALAN C. LAMMLE,
Plaintiff(s),
v.
BALL AEROSPACE & TECHNOLOGIES CORPORATION, a Delaware corporation,
Defendant(s).

ORDER REGARDING
(1) PLAINTIFF’S MOTION FOR PROTECTIVE ORDER (DOCKET NO. 39);
(2) PLAINTIFF’S MOTION TO QUASH SUBPOENA (DOCKET NO. 40);
AND
(3) DEFENDANT’S MOTION FOR SANCTIONS (DOCKET NO. 49)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on (1) Plaintiff’s Motion for Protective Order
(docket no 39), (2) Plaintiff’s Motion to Quash Subpoena (docket no. 40), and (3)
Defendant’s Motion for Sanctions (docket no. 49).
The court has reviewed the subject motions, the responses (docket nos. 44, 48,
and 53) and the reply (docket no. 51). In addition, the court has taken judicial notice of
the court’s file and the case of Amy Jane Simons, Alan C. Lammle et al. vs. KB Home, a
Delaware corporation, case no. 10-cv-1119, filed in the Arapahoe County District Court.
Furthermore, the court has considered applicable Federal Rules of Civil Procedure and

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case law. The court now being fully informed makes the following findings of fact,
conclusions of law, and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That Plaintiff’s claims for relief are for breach of contract,
deprivation of substantive and procedural due process,
discrimination based on the Americans with Disabilities Act,
discrimination based on age, intentional infliction of emotional
distress, hostile work environment, retaliation, and wrongful
termination. See Amended Complaint (docket nos. 15 and 16);

5.

That Plaintiff seeks the following relief in this lawsuit:
a.

Damages for all injuries suffered by Plaintiff including but not
limited to damages for economic losses and damages for his
loss of employment, earnings, benefits, security, and earning
capacity, past and future, loss of professional and career
opportunities, loss of confidence in abilities, and damage to
reputation;

b.

His non-economic losses, suffering, and damages, for

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mental anguish, emotional distress, depression, anxiety,
PTSD, loss of enjoyment of life, loss of consortium, loss of
relationships, shame, humiliation, embarrassment, worry,
and other suffering;
c.

Reimbursement for medical expenses and for future medical
expenses for all physical and mental health impairments;

d.

Compensation for the causation and exacerbation of his
physical and mental health medical issues;

e.

Any other liquidated damages available;

f.

All related and applicable consequential and incidental
damages;

g.

Other appropriate and related legal and equitable relief,
including reinstatement with back pay and damages;

h.

Interest on damages at the highest legal rate, including
interest at 8 percent per annum under Section 5-12-102,
C.R.S., as amended, from the time of the termination of his
employment, from December 1, 2010, through the date of
judgment, and from the time of judgment through payment;

I.

All costs, expenses, and reasonable attorney’s fees as
allowed by law, including witness expenses, expert witness
fees and travel expenses; and,

j.

Such other and appropriate relief as to the Court may seem
just and proper under the circumstances. See Amended

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Complaint (docket nos. 15 and 16);
6.

That in Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964), the
Supreme Court stated that Rule 35 “require[s] an affirmative
showing by the movant that each condition as to which the
examination is sought is really and genuinely in controversy and
that good cause exists for ordering each particular examination.”
The burden of demonstrating good cause rests with the moving
party. See Doe v. District of Columbia, 229 F.R.D. 24, 26 (D.D.C.
2005). The requirement of good cause is not a formality; the court
must genuinely balance the need for the information with the right
to privacy and safety of the party. Schlagenahuf, 379 U.S. at 118.
Rule 35 states that the examination may be conducted by a suitably
licensed or certified examiner. Fed. R. Civ. P. 35(a)(1). Psychiatric
examinations are allowable if a person’s mental condition is at
issue, and the examination may be conducted by a psychiatrist or
psychologist. When permanent injuries are claimed or under other
appropriate circumstances, the court may allow a second
examination just before trial. See Galieti v. State Farm Mut. Auto.
Ins. Co., 154 F.R.D. 262 (D. Colo. 1994). A stronger showing of
necessity is usually required for a second examination. Furlong v.
Circle Line Statue of Liberty Ferry, Inc., 902 F. Supp. 65, 70
(S.D.N.Y. 1995). Lastly, the court has discretion to determine who
may be present at the examination. Galieti, 154 F.R.D. at 263-65;

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7.

That in this case, Plaintiff contends that he has suffered and
continues to suffer extreme medical issues including neuropathy,
chronic pancreatitis, type 1 brittle diabetes, panic/anxiety attacks,
chest pain, stomach pain, nausea, concentration issues, and other
complications as well as depression, feelings of lack of self worth
and rejection due to the action and inaction of Defendants. In
addition, as a result of Defendant’s acts and omissions as
described above, Plaintiff allegedly has been physically and
mentally unable to led his life in a normal manner and has suffered
emotional harm, mental anguish, loss of consortium, and loss of
enjoyment of life. See paragraph 154 in the Amended Complaint
(docket nos. 15 and 16). Plaintiff has placed his medical, physical,
mental, and emotional condition, as well as his vocational
capabilities, “in controversy.” See paragraph 5 above and also see
Prayer for Relief in the Amended Complaint (docket nos. 15 and
16);

8.

That Defendants have demonstrated a strong showing of necessity
for a psychological IME. Defendants have further demonstrated
that Plaintiff has placed “in controversy” whether Plaintiff has
suffered all of the injuries as claimed above in paragraph 7;

9.

That pursuant to Hayes v. District Court, 854 P.2d 1240 (Colo.
1993), the Colorado Supreme Court held that it is within the trial
court’s discretion to decide whether a third-party [i.e., an attorney or

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someone else] should be allowed to be present during an IME.
Here, I find there is no need to have a third-party representative,
namely, Plaintiff’s counselor and/or therapist Lori Frey, present
during Plaintiff’s psychological IME conducted by Dr. Robin Post, a
licensed psychologist. I also find that Plaintiff would not be
prejudiced by not having Ms. Frey present during his psychological
IME. Additionally, Plaintiff has failed to demonstrate “good cause”
to allow Plaintiff to record the psychological IME. This court notes
that Dr. Post will be preparing her report consistent with Fed. R.
Civ. P. 26(a)(2)(B) following the psychological IME of Plaintiff, and
Plaintiff will also have the opportunity to depose Dr. Post after she
completes her report. See Ghiasy v. Kroger Co., Civil Action No.
11-cv-01667-WJM-MJW, Docket No. 52 (D. Colo. Feb. 24, 2012)
(finding a lack of good cause for the presence of a recording device
during plaintiff’s psychological evaluation) (citing Galieti v. State
Farm Mut. Ins. Co., 154 F.R.D. at 265). Further, I find that the
information that is being requested by Defendants from Aetna is
probative, relevant, and discoverable; and
10.

That as to the Fed. R. Civ. P. 45 subpoena served upon KB
Homes, I find that the attorney-client privilege does not apply to the
documents being requested in the subject subpoena. In addition, I
find that the documents are probative, relevant, and discoverable,
noting the injuries being claimed and the damages being sought by

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Plaintiff which include, but are not limited to, loss of consortium and
loss of enjoyment of life. In particular, I find that such records by
KB Home are relevant on the issue of causation, noting that Plaintiff
and his wife were alleging similar injuries and seeking similar
damages in their Arapahoe County District Court case no. 10-cv1119.

See injuries claimed and damages sought in detail in

paragraphs 7 and 8 above and compare to paragraph captioned
DEMAND FOR RELIEF on pages 15 and 16 of the Amended
Complaint and Jury Demand in the Arapahoe County District Court
case no. 10-cv-1119 (docket no. 48-1).
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Motion for Protective Order (docket no. 39) is
DENIED;

2.

That Plaintiff’s Motion to Quash Subpoena (docket no. 40) is
DENIED;

3.

That the parties shall forthwith meet, confer, and set a specific date,
time, and location for Plaintiff’s psychological IME examination with
Dr. Robin Post, a licensed psychologist. This psychological IME
shall not be set any sooner than September 28, 2012. Plaintiff shall
provide to Defendants a written release for the Aetna records as

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previously requested by Defendants on or before September 28,
2012;
4.

That Defendant’s Motion for Sanctions (docket no. 49) is DENIED;
and

5.

That each party shall pay their own attorney fees and costs for
these motions.

Done this 18th day of September 2012.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE