Malvaes v. Constellation Brands, Inc.

Filing 125

ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER re 110 Defendant's OBJECTION of Magistrate Judge 103 Order on Motion to Compel, Order on Motion for Medical Exam, Order on Motion for Protective Order,, Order on Motion for Sanctions,,,,, to District Court , 103 Order on Motion to Compel, Order on Motion for Medical Exam, Order on Motion for Protective Order,, Order on Motion for Sanctions,,,,, Signed by Judge Marcia G. Cooke on 6/22/2015. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-21302-civ-COOKE/TORRES
JOEY MALVAES,
Plaintiff,
vs.
CONSTELLATION BRANDS, INC.,
a Delaware corporation, CROWN
IMPORTS, LLC, a Delaware
limited liability company, and
SAM’S EAST, INC., an Arkansas
corporation d/b/a SAM’S CLUB,
Defendants.
_________________________________/

ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER
THIS MATTER is before me on Defendants’ Objection to and Appeal of
Magistrate Judge’s Order Denying Defendants’ Motion for Medical Examination.
(ECF No. 110). I have reviewed the arguments, the record, and the relevant legal
authorities. For the reasons provided, Judge Torres’ Order is affirmed.
I.

STANDARD OF REVIEW

A district court may “reconsider any pretrial matter . . . where it has been
shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28
U.S.C. § 636(b)(1)(A); Fed. R. Civ. Proc. 72(a). “The Federal Magistrates Act
provides two separate standards of judicial review: ‘clearly erroneous or contrary to
law’ for magistrate resolution of nondispositive matters, see 28 U.S.C. § 636(b)(1)(A),
and ‘de novo’ for magistrate resolution of dispositive matters, see § 636(b)(1)(B)-(C).”
Peretz v. United States, 501 U.S. 923, 944 (1991)). Discovery matters are nondispositive. See Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep't of Educ., 342 F.3d
1281, 1286 (11th Cir. 2003). “Clear error is a highly deferential standard of review.
As the Supreme Court has explained, a finding is ‘clearly erroneous' when although
there is evidence to support it, the reviewing court on the entire evidence is left with

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the definite and firm conviction that a mistake has been committed.” Holton v. City of
Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005) (internal citations and
quotation marks omitted).

II.

ANALYSIS

Defendants seek review of that portion of Magistrate Judge Torres’ Order
(ECF No. 103) denying Defendants’ Motion to Compel Medical Examination (ECF
No. 83) of the Plaintiff pursuant to Rule 35, Federal Rules of Civil Procedure. The
Magistrate Judge denied Defendants’ untimely Motion to Compel Medical
Examination on the grounds that Defendants had not demonstrated good cause for
their failure to comply with this Court’s Scheduling Order (ECF Nos. 27 and 79). I
find no clear error in the Magistrate Judge’s ruling and affirm.

Defendants filed their Motion to Compel Medical Examination of the
Plaintiff on March 6, 2015, more than one month past the fact discovery deadline.
This Court’s Scheduling Order (ECF No. 27) provided that all fact discovery must be
completed by February 2, 2015, and that Defendants were required to furnish their
expert witness list and accompanying summaries/reports by January 26, 2015.
Defendants admitted in their Motion to Compel Medical Examination that, “The
pleadings in this case are sufficient to establish ‘good cause’ for Rule 35
Examination.” (ECF No. 83 at 4). Moreover, on November 14, 2014, in response to
Defendants’ discovery request, Defendants received from Plaintiff all of his medical
records then in his possession, which documented the Plaintiff’s condition from the
date of injury to mid-November, 2014.

Defendants, nevertheless, argued that the untimely Motion to Compel
Medical Examination was supported by “good cause” because Defendants had been
unable to find any upper extremity surgeons in Miami-Dade County who would be
willing to serve as an expert on the other side of a case to Plaintiff’s expert, Dr.
Elizabeth Ouellette, whom Plaintiff timely disclosed as his expert on January 12,
2015. I find, as Magistrate Judge Torres found, that this argument does not
constitute good cause.

The Rule 35 compelled medical examination of the Plaintiff could have, and
should have, been requested much earlier in this case. The Complaint filed on April

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11, 2014 made it clear that Plaintiff was placing in controversy the existence of a
serious injury to his right hand as a result of the shattering of the Corona Extra beer
bottle. See Complaint (ECF No. 1) at ¶ 19 (“As a direct and proximate result of the
shattering or exploding of the beer bottle referred to above, the Plaintiff was injured
in his body and extremities, in particular his right hand, suffered pain therefrom,
incurred medical expenses in the treatment of his injuries,…and sustained disability
and disfigurement, pain, suffering…”).

Armed with the knowledge that their defense substantially relied on a medical
examination of the Plaintiff, Defendants knew or should have known that they
needed to move to compel the medical examination with sufficient time to meet the
fact discovery deadline of February 2, 2015, and the Defendants’ expert disclosure
deadline1 of January 26, 2015.2 As aptly noted in the Magistrate Judge’s Order, the
rule in this District is that Rule 35 requests for examination are discovery tools
subject to the scheduled discovery cutoff dates. See Lamour v. Applied Credit Systems,
Inc., No. 02-80318, 2003 WL 25537162 (S.D. Fla. Aug. 5, 2003). By moving to
compel the medical examination more than one month past both the expert
disclosure deadline and the fact discovery deadline, Defendants showed no regard
for complying with this Court’s Scheduling Order.

Defendants make much of the fact that they were unable to secure an upper
extremity surgeon practicing in Miami-Dade County who was willing to serve
opposite Plaintiff’s expert. Defendants, however, were able to secure a surgeon
practicing in Broward County, just north of Miami-Dade County. With respect to

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A party conducting a Rule 35 examination is required to deliver to the party
examined, upon request, a copy of the examiner’s report. See Fed. R. Civ. P.
35(b)(1). If the examining party intends to call the examiner to testify at trial, that
party must timely disclose the examiner as an expert. See Fed. R. Civ. P. 26(a)(2).
Therefore, the party seeking a Rule 35 examination, and intending to rely on the
examiner at trial, must be cognizant of the deadlines for expert disclosures. See, e.g.,
Lamour v. Applied Credit Systems, Inc., No. 02-80318, 2003 WL 25537162 (S.D. Fla.
Aug. 5, 2003); Roberson v. Church, No. 09-cv-372-J-34MCR, 2009 WL 4348692, at *1
(M.D. Fla. Nov. 24, 2009).
2

I note that these deadlines were accepted at the suggestion of the parties
themselves. See Schedule Jointly Proposed by the Parties (ECF No. 26).

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their liability expert, Defendants secured an expert that resides all the way in
California. Apparently, Defendants made a strategic decision to wait until after
Plaintiff disclosed his expert to begin their search for a damages expert. The
predicament that decision led to does not constitute good cause for belated attempts
at discovery.

III.

CONCLUSION

For the reasons explained in this Order, it is ORDERED and ADJUDGED
that the Magistrate Judge’s Order (ECF No. 103) is AFFIRMED.

DONE and ORDERED in Chambers, at Miami, Florida this 22ND day of
June 2015.

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record

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