Anderson v. Mountain States Insurance Group, Inc. et al

Filing 38

ORDER granting 33 Motion for Discovery; granting 36 Motion for Extension of Time. To the extent that the IMEs have not already proceeded upon agreement of the Parties, counsel shall meet and confer regarding the date, time, and location of the IMEs and shall file a status report with the court on or before 3/23/15, with the expectation that such examinations will proceed prior to 4/1/16. By Magistrate Judge Nina Y. Wang on 3/17/16. (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01316-RM-NYW
MARSHALL ANDERSON,
Plaintiff,
v.
MOUNTAIN STATES MUTUAL CASUALTY COMPANY,
Defendant.

ORDER
Magistrate Judge Nina Y. Wang
This matter is before the court on Defendant’s Motion for Independent Medical Exams
(“Motion for Independent Medical Exams”) [#33, filed February 9, 2016] and Plaintiff’s
Amended Unopposed Motion to Enlarge Discovery Deadlines (“Motion for Extension”) [#36,
filed March 15, 2016]. These Motions were referred to the court pursuant to the Order Referring
Case dated June 19, 2015 [#7] and the memoranda dated February 9, 2016 [#34] and March 16,
2015 [#37].
BACKGROUND
In this action, Plaintiff Marshall Anderson (“Plaintiff or “Mr. Anderson”) asserts three
claims for Underinsured Motorist Benefits, Breach of Contract, and Violation of the Insurance
Fair Conduct Act arising out of an automobile accident resulting in injury to Plaintiff. [#4]. Mr.
Anderson contends that Defendant has “unreasonably delayed and/or denied payment of the

[underinsured motorist] benefits for the damages incurred,” and that as a result of the
unreasonable delay, he is entitled to recover “the covered benefit owed…plus statutory damages
of two times the covered benefit, plus reasonable attorney fees and court costs.” [#4 at 7].
Specifically, Plaintiff claims damages in the form of past medical expenses, future medical
expenses, past wage losses, future wage losses, and non-economic losses. [#17 at 7].
ANALYSIS
Rule 35 of the Federal Rules of Civil Procedure provides that a court may order an
independent medical examination of a party where the party’s mental or physical condition “is in
controversy.” Fed. R. Civ. P. 35. Rule 35 requires an affirmative showing by the moving party
that each condition as to which the examination is sought is really and genuinely in controversy
and good cause exists for ordering each particular examination. See Schlangenhauf v. Holder,
379 U.S. 104, 118 (1964). “Good cause” indicates that the showing is more than mere relevance,
and is not merely a formality. Id. Rather, the court weighs the need for information against the
individual’s right to privacy. Id. The decision to grant or deny a Rule 35 examination is
committed to the sound discretion of the court. See Simpson v. University of Colorado, 220
F.R.D. 354, 362 (D. Colo. 2004).

Because the “in controversy” and the “good cause”

requirements often implicate the same factors, the court may consider both issues together. Id
On February 8, 2016, the undersigned presided over a Telephonic Discovery Conference
regarding Defendant’s request that Plaintiff undergo certain independent medical examinations
(“IME”). See [#32]. The Parties agreed that IMEs administered by Dr. McCrainie and Dr.
Kreutzer would go forward, and the court entertained discussion regarding the requested IME to
be conducted by neuropsychologist Laura Rieffel, Ph.D.. [Id.] This court instructed Defendant

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to file a motion pursuant to Rule 35 for all requested IMEs, and for Plaintiff to respond in
opposition within three days of Defendant filing the motion. [Id.] Defendant filed the instant
Motion the following day, and this court subsequently sua sponte ordered Plaintiff to file any
response on or before February 23, 2016. [#35]. Plaintiff has filed no response to date,
suggesting to the court that the Parties may have reached resolution on this outstanding issue
without further court intervention.
The Motion specifies that Plaintiff has “alleged injuries and conditions which traverse
numerous different, and highly specialized, medical disciplines…Plaintiff alleges that his
[traumatic brain injury] and complaints of vertigo, ringing in the ears and light sensitivity
prevent him from returning to work.” [#33 at 2]. Furthermore, Plaintiff seeks damages for past
and future medical expenses and lost wages in an amount exceeding $1.5 million.

[Id.]

Defendant states it is requesting IMEs only with respect to the specific areas of injury that
Plaintiff has asserted: “(1) physical injuries related to his back/neck; (2) specific medical
conditions that can only be addressed by an ENT physician – vertigo, ringing in the ears and
vision sensitivities; and (3) a TBI.” [Id.] The court finds that Plaintiff has placed these medical
conditions in controversy in this action and Plaintiff has not rebutted Defendant’s arguments that
each of these separate examinations is reasonable and necessary. Therefore, this court finds that
good cause exists for the order directing the IMEs. This court also finds good cause for granting
Plaintiff’s unopposed request for two-week extensions to the pending discovery deadlines. See
[#36]. Accordingly,
IT IS ORDERED that:
1. The Motion for Independent Medical Exams [#33] is GRANTED;

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2. To the extent that these IMEs have not already proceeded upon agreement of the
Parties, counsel shall meet and confer regarding the date, time, and location of the
IMEs to be administered by Dr. McCranie, Dr. Kreutzer, and Dr. Reiffel and shall file
a status report with the court on or before March 23, 2016 with the information
necessary for the court to issue an order consistent with Fed. R. Civ. P. 35, with the
expectation that such examinations will proceed prior to April 1, 2016; and
3. The Amended Unopposed Motion to Enlarge Discovery Deadlines [#36] is
GRANTED;
4. The deadline by which to complete discovery is extended from May 16, 2016 to May
30, 2016;
5. The deadline by which to file dispositive motions is extended from June 3, 2016 to
June 17, 2016;
6. The deadline by which to disclose expert witnesses is extended from March 16, 2016
to April 1, 2016;
7. The deadline by which to disclose rebuttal exert witnesses is extended from April 15,
2016 to May 2, 2016;
All other dates remain set.
DATED: March 17, 2016

BY THE COURT:

s/Nina Y. Wang__________
United States Magistrate Judge

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