Fogle v USA

Filing 37

ORDER granting 30 Unopposed Motion for Medical Examination. An IME of Plaintiff's eyes shall be performed by Dr. Thomas P. Campell, M.D., an opthamologist located in Wheat Ridge, Colorado on 2/26/2015. By Magistrate Judge Kristen L. Mix on 2/17/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00486-REB-KLM
CURTIS M. FOGLE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Unopposed Motion for Medical
Examination [#30] (the “Motion”). A motion seeking permission to conduct an Independent
Medical Examination (“IME”) pursuant to Fed. R. Civ. P. 35 must be based on two
prerequisites: (1) the plaintiff's mental or physical condition must be “in controversy”; and
(2) “good cause” for the examination must exist. LeFave v. Symbios, Inc., No. Civ. A. 99-Z1217, 2000 WL 1644154, at *4 (D. Colo. Apr.14, 2000).

Here, “Plaintiff seeks

compensatory damages (past and future) for physical injury allegedly sustained from the
administration of a blue dye into his right eye in connection with a medical procedure on
March 2, 2011, performed at the Department of Veterans Affairs Medical Center in
Cheyenne, Wyoming.” Motion [#30] at 1. The Court finds that this statement satisfies the
first element of the test under Rule 35. Further, “Plaintiff has varying degrees of pain and
physical complaints that he attributes to the effects of the dye. Some of these effects,

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however, may be attributable to the aging process and other pre-existing health issues.”
Id. The Court finds that this statement satisfies the second element of the test under Rule
35. Accordingly,
IT IS HEREBY ORDERED that the Motion [#30] is GRANTED. An IME of Plaintiff’s
eyes shall be performed by Dr. Thomas P. Campell, M.D., an opthamologist located in
Wheat Ridge, Colorado on February 26, 2015. See Motion [#30] at 2; Motion to Compel
[#32] at 3.

Dated: February 17, 2015

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