Funez v. Wal-Mart Stores, Inc.
ORDER granting 24 Motion for Medical Examination and denying 29 Motion for Summary Judgment. Defendant shall provide Plaintiff with three proposed dates from which to choose for the examination. The examination will be performed by Dr. Benn ett J. Axelrod. The scope of the examination will be reasonably limited to investigating the cause, nature, and extent of Plaintiff's injuries allegedly caused by her slip and fall on Defendant's premises, and to ascertain Plaintiff 9;s current physical condition and medical history. The examination must be completed on or before 2/8/2013. The deposition of Dr. Axelrod, if conducted, must be completed on or before 2/28/2013. The parties shall submit their Pre-Trial Order on or before 3/1/2013. Signed by Judge William S. Duffey, Jr. on 1/9/2013. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
WAL-MART STORES EAST, LP,
OPINION AND ORDER
This matter is before the Court on Wal-Mart Stores East, LP’s (“Wal-Mart”
or “Defendant”) Motion for Medical Examination  and Motion for Summary
Plaintiff’s slip and fall
On August 31, 2010, Claudia Funez (“Plaintiff”) went shopping with her
brother at Wal-Mart Store #5390 in Marietta, Georgia. (DSMF ¶ 1). After
In ruling on Defendant’s Motion for Summary Judgment, the Court relies upon
Defendant’s Statement of Material Facts as to Which There is No Genuine Issue to
be Tried [29.1] (“DSMF”). The Court notes that Plaintiff submitted a response to
Defendant’s Statement of Material Facts [33.1]. Although Plaintiff admits that
most of Defendant’s facts are true, she has not properly disputed facts 10, 27, 30,
31, and 32 because she has not cited to specific evidence in the record, stated a
valid objection, or otherwise pointed out that Defendant’s evidence does not
support its facts. L.R. 56.1 B.(2), N.D. Ga. These facts are deemed admitted to the
extent they do not represent legal conclusions. Id.
entering the store, Plaintiff selected a shopping cart and placed some laundry and
dishwashing soap in it. (Id. ¶¶ 2, 16).
After shopping for about a half an hour, Plaintiff entered the boys’ clothing
department in the store and her brother went to shop in another area. (Id. ¶ 3-5).
Plaintiff left her shopping cart in one of the white-tiled aisles in the boys’ clothing
department, and walked away from it to look at boys’ clothing items. (Id. ¶¶ 4-5).
Plaintiff remained within eyesight of her shopping cart while she shopped about
eight to ten feet away. (Id. ¶ 6).
A few minutes after leaving her cart to look at items in the boys’ department,
Plaintiff walked back to her cart. (Id.). As she did, Plaintiff, in the process of
touching her cart, slipped and fell on a slippery substance on the tile floor. (Id. ¶
7). Her shopping cart slid out from under her, and she fell to the ground. (Id.
The substance on the floor on which Plaintiff slipped, was a yellow liquid
resembling cooking oil in a spot about three (3) inches in diameter. (Id. ¶ 9). The
substance was noticeable to a person standing within three feet of the spill. (Id.
¶ 10). Neither Plaintiff nor her brother saw the substance prior to Plaintiff’s
accident. (Id. ¶¶ 11-13).
The parties do not know the origin of the substance or how long it was on
the floor before Plaintiff slipped and fell. (Id. ¶¶ 14-15, 27, 31). Although
Defendant has policies regarding periodic inspections and spill management, it is
unknown when, before Plaintiff’s fall, a Wal-Mart employee inspected the area
where Plaintiff slipped. (Id. ¶¶ 27-31).
On January 16, 2012, Plaintiff filed this action against Defendant in the State
Court of Gwinnett County. (Compl. at 1). Plaintiff’s Complaint asserts a single
claim of negligence based on her slip and fall at Wal-Mart Store #5390 in Marietta,
Georgia. (Id. at 2).
On January 25, 2012, Defendant removed the action to this Court based on
diversity jurisdiction. (Notice of Removal  ¶ 7).
On July 23, 2012, Defendant filed its Motion for Medical Examination .
Defendant seeks “an Order requiring Plaintiff Funez to submit to a medical
examination by Bennett J. Axelrod, M.D.” (Def.’s Mot. for Medical Examination
at 2). Plaintiff opposes Defendant’s request for a medical examination claiming
that Dr. Axelrod is not independent and an examination is unnecessary because
Defendant has had access to Plaintiff’s medical records through discovery. (Pl.’s
Resp. to Def.’s Mot. for Medical Examination at 5-9). If the Court grants
Defendant’s request for an order requiring Plaintiff to submit to an examination,
Plaintiff requests that the order require that: (1) Plaintiff’s counsel be allowed to
attend the examination; (2) the examination be videotaped; (3) the examination be
conducted by a physician of the Court’s choosing; (4) “the examination take place
only once with no painful, intrusive, or potentially harmful tests;” (5) Plaintiff be
granted access to any and all reports prepared by Dr. Axelrod; (6) Dr. Axelrod be
made available for a deposition and produce prior to his deposition “copies of all
1099 forms, W-2 forms, or some other equally reliable document that would verify
his income (and the income of any companies he is affiliated with) from doing
[Independent Medical Exams] for the years 1999, 2000, 2001, and 2002;” and, (7)
in the event of trial, references to Dr. Axelrod’s examination be prohibited from
including the word “independent.” (Id. at 9-16).
On July 25, 2012, Defendant filed its Motion for Summary Judgment .
Defendant asserts that summary judgment is appropriate on two grounds: (1) that
Defendant lacked actual or constructive knowledge of the hazard; and, (2)
alternatively, that Plaintiff failed to exercise ordinary care as a matter of law by
failing to see and identify the hazard. (Def.’s Br. in Supp. of Mot. for Summ. J.
[29.2] at 5-16).
Summary judgment standard
A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Parties “asserting that a fact cannot be or is
genuinely disputed must support that assertion by . . . citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the
absence of a genuine dispute as to any material fact. Herzog v. Castle Rock
Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this
burden, the non-movant must demonstrate that summary judgment is inappropriate
by designating specific facts showing a genuine issue for trial. Graham v. State
Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties
“need not present evidence in a form necessary for admission at trial; however,
[they] may not merely rest on [their] pleadings.” Id.
The Court must view all evidence in the light most favorable to the party
opposing the motion and must draw all inferences in favor of the non-movant, but
only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d
1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8
(2007)). “[C]redibility determinations, the weighing of evidence, and the drawing
of inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party,” summary judgment for the moving party is proper. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Standard for a negligence slip and fall claim in Georgia
A plaintiff asserting a cause of action for negligence under Georgia law must
establish (1) the existence of a duty on the part of the defendant, (2) a breach of
that duty, (3) causation, and (4) damages. Rasnick v. Krishna Hospitality, Inc.,
713 S.E.2d 835, 837 (Ga. 2011) (citing John Crane, Inc. v. Jones, 604 S.E.2d 822,
825 (Ga. 2004)).2
The Court notes that Defendant relies on a number of cases that pre-date
Robinson v. Kroger Co., which altered the standards for evaluating a motion for
summary judgment in slip and fall actions. 493 S.E.2d 403, 414 (Ga. 1997). The
Under Georgia premises law, a landowner owes an invitee a duty to
“exercise ordinary care in keeping the premises and approaches safe.” O.C.G.A.
§ 51-3-1; Bartlett v. McDonough Bedding Co., 722 S.E.2d 380, 382 (Ga. Ct. App.
2012) (quoting Gaydos v. Grupe Real Estate Investors, 440 S.E.2d 545, 547 (Ga.
Ct. App. 1994)). A landowner is not an insurer of the invitee’s safety. Id. (quoting
Gaydos, 440 S.E.2d at 547). The duty extends to an invitee where the landowner
has actual or constructive knowledge of a hazard and the invitee, in the exercise of
ordinary care, lacks knowledge of the hazard. See Whitley v. H & S Homes, LLC,
632 S.E.2d 728, 729 (Ga. Ct. App. 2006) (citing Ford v. Bank of Am. Corp., 627
S.E.2d 376, 378 (Ga. Ct. App. 2006)); see also id. (quoting Garrett v. Hanes, 616
S.E.2d 202, 204 (Ga. Ct. App. 2005)) (“The true basis for an owner’s liability is his
superior knowledge of the existence of a condition that could subject his invitees to
an unreasonable risk of injury.”).
Where the invitee is shown to have had actual or constructive knowledge of
a hazard, Georgia courts have held that the landowner did not owe a duty to
safeguard the invitee from the hazard, even if the landowner also had knowledge of
the hazard. See Delk v. QuikTrip Corp., 572 S.E.2d 676, 678 (Ga. Ct. App. 2002)
Court has carefully reviewed the authorities upon which Defendant relies and finds
them distinguishable and not as persuasive as the post-Robinson cases cited by
Plaintiff and identified by the Court. See Hamilton v. Ky. Fried Chicken of
Valdosta, Inc., 545 S.E.2d 375, 377 (Ga. Ct. App. 2001).
(where gas station customer had knowledge of protruding storage tank cover in
parking lot, gas station did not have “superior knowledge” and, therefore, did not
have a duty to safeguard customer from tripping over the cover); Chisholm v.
Fulton Supply Co., 361 S.E.2d 540, 541–42 (Ga. Ct. App. 1987) (store owner did
not owe duty to warn regular customer of “high” step because customer had used
the stairs in the past and his “knowledge as to the ‘risers and treads’ of the stairs
was equal to that of the proprietor”). “[A] plaintiff must show that she was injured
by a hazard that the owner ‘should have removed in the exercise of ordinary care
for the safety of the invited public.’” Ahuja v. Cumberland Mall, LLC, 821 F.
Supp. 2d 1317, 1324 (N.D. Ga. 2010) (quoting Am. Multi-Cinema, Inc. v. Brown,
679 S.E.2d 25, 27 (Ga. 2009)). Accordingly, “in order to recover for injuries
sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had
actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked
knowledge of the hazard despite the exercise of ordinary care due to the actions or
conditions within the control of the owner/occupier.” Robinson, 493 S.E.2d at
414; see also Am. Multi-Cinema, Inc., 679 S.E.2d at 27-28.
Defendant asserts in this case that summary judgment is appropriate
because: (1) it lacked actual or constructive knowledge of the hazard; and, (2)
Plaintiff failed to exercise ordinary care as a matter of law by failing to notice and
avoid the hazard. In examining these arguments, the Court considers the Georgia
Supreme Court’s admonition that
issues such as how closely a particular retailer should monitor its
premises and approaches, what retailers should know about the
property’s condition at any given time, how vigilant patrons must
be for their own safety in various settings, and where customers
should be held responsible for looking or not looking are all
questions that, in general, must be answered by juries as a matter
of fact rather than by judges as a matter of law.
Am. Multi-Cinema, Inc., 679 S.E.2d at 28.
Whether the undisputed facts show that Defendant had actual or
constructive knowledge of the hazard
It is undisputed that Defendant did not have actual knowledge of the hazard
that allegedly caused Plaintiff’s slip and fall. (Pl.’s Resp. to Def.’s Mot. for
Summ. J.  at 6). Plaintiff instead asserts that Defendant had constructive
knowledge of the hazard that caused her injuries. (Id.).
A plaintiff alleging constructive knowledge of a hazard must show that
(1) an employee was in the immediate vicinity and easily could have seen and
removed the substance; or (2) that the substance had been on the floor for a
sufficient length of time that defendant should have discovered and removed it
during a reasonable inspection. Deborde v. KFC U.S. Properties, Inc., No. 1:05cv-1228-JOF, 2007 WL 781881, at *2 (N.D. Ga. Mar. 12, 2007) (citing Medders v.
Kroger, 572 S.E.2d 386, 388 (Ga. Ct. App. 2002)); see also Brown v. Host/Taco
Venture, 699 S.E.2d 439, 442 (Ga. Ct. App. 2010); Matthews v. The Varsity, Inc.,
546 S.E.2d 878, 880 (Ga. Ct. App. 2001); Roberson v. Winn-Dixie Atlanta, Inc.,
544 S.E.2d 494, 495 (Ga. Ct. App. 2001). “Constructive knowledge may be
inferred when there is evidence that the owner lacked a reasonable inspection
procedure.” Kauffman v. Eastern Food & Gas, Inc., 539 S.E.2d 599, 601 (Ga. Ct.
“In order to prevail at summary judgment based on lack of constructive
knowledge, the owner must demonstrate not only that it had a reasonable
inspection program in place, but that such program was actually carried out at the
time of the incident.” Brown, 699 S.E.2d at 442; see also Webster v. S. Family
Markets of Milledgeville N. LLC, No. 5:11-cv-53, 2012 WL 426017, at *5 (M.D.
Ga. Feb. 9, 2012) (citing Davis v. Bruno’s Supermarkets, Inc., 587 S.E.2d 279 (Ga.
Ct. App. 2003)). “[T]o survive a motion for summary judgment, a plaintiff must
come forward with evidence that, viewed in the most favorable light, would enable
a rational trier of fact to find that the defendant had actual or constructive
knowledge of the hazard.” Am. Multi-Cinema, Inc., 679 S.E.2d at 27-28.
Defendant argues that it is entitled to summary judgment because it did not
have constructive knowledge of the spilled liquid. Defendant argues that the
testimony of its asset protection coordinator, Jeffrey Murray (“Murray”), is
undisputed that “safety sweeps” and “zoning” inspections were conducted in the
store by Defendant’s employees on the day Plaintiff slipped and fell. (Ex. A to
Def.’s Mot. for Summ. J.). These sweeps and inspections, Murray testified, were
conducted at least once every two hours on the day of Plaintiff’s injury. Defendant
asserts that Murray’s testimony shows that Defendant conducted a reasonable
inspection program sufficient to establish that Defendant lacked constructive
knowledge of the slip hazard.
In Georgia, “when an owner shows that an inspection occurred within a brief
period of time prior to an invitee’s fall, the inspection procedure was adequate as a
matter of law and defeats an invitee’s negligence action.” Mucyo v. Publix Super
Markets, Inc., 688 S.E.2d 372, 375 (Ga. Ct. App. 2009) (citing Medders,
572 S.E.2d at 388); see also Matthews, 546 S.E.2d at 881. Although what
constitutes a “brief period of time” has not been defined specifically, various
Georgia courts have held that inspections conducted within thirty minutes before
the injury-causing event were adequate as a matter of law. See, e.g., Brown, 699
S.E.2d at 443 (evidence manager inspected floor within fifteen minutes prior to
plaintiff’s fall and did not see spill demonstrated that defendant exercised due care
in inspecting premises and lacked constructive knowledge of the hazard); Wallace
v. Wal-Mart Stores, Inc., 612 S.E.2d 528, 529-32 (Ga. Ct. App. 2005) (inspection
conducted fifteen to twenty minutes before fall adequate as a matter of law);
Bolton v. Wal Mart Stores, Inc., 570 S.E.2d 643, 645 (Ga. Ct. App. 2002) (plaintiff
failed to establish constructive knowledge where employee stated in affidavit that
he was in area ten to fifteen minutes before accident and did not see spill);
Roberson v. Winn-Dixie Atlanta, Inc., 544 S.E.2d 494, 495 (Ga. Ct. App. 2001)
(inspection conducted approximately fifteen minutes before fall was adequate as
matter of law); Hopkins v. Kmart Corp., 502 S.E.2d 476, 478-79 (Ga. Ct. App.
1998) (inspection conducted thirty minutes before fall was adequate as matter of
law); see also Benefield v. Tominich, 708 S.E.2d 563, 568 n.23 (Ga. Ct. App.
2011) (citing cases); Wallace, 612 S.E.2d at 531 n.7 (citing cases). Whether an
inspection procedure is reasonable thus depends on the proximity of an inspection
to an event causing an injury. For that time to be reasonable as a matter of law,
there must be “plain, palpable, and undisputed” evidence that an inspection was
conducted within a “brief period of time” prior to a plaintiff’s fall sufficient to
justify granting summary judgment to a defendant. See Ahuja, 821 F. Supp. 2d at
1324 (quoting Robinson, 493 S.E.2d at 414); Kauffman, 539 S.E.2d at 601.
Defendant, here, offers, at most, evidence that a safety sweep or zoning
inspection occurred within two hours of—and perhaps as long as two hours
before—Plaintiff’s alleged injuries.3 Thus, the sweep or inspection did not occur
within the thirty-minute period Georgia courts have considered reasonable as a
matter of law. See id.; see also Benefield, 708 S.E.2d at 568 n.23 (citing cases);
Wallace, 612 S.E.2d at 531 n.7 (citing cases). The Court notes that thirty minutes
is not necessarily intended by the Georgia courts to be a bright-line test. The facts
of each case will dictate whether a particular inspection program in place was
sufficient to consider whether it allows for a grant of summary judgment on the
grounds that a defendant did not have constructive knowledge. Here, the facts are
that any sweep or inspection that may occurred in the area of the fall could have
been conducted as remotely as two hours before Plaintiff’s fall. The Court simply
cannot under the facts of this case conclude as a matter of law that a “brief period
of time” extends to a period of up to two hours in length.
The Court finds there is a genuine dispute of fact regarding whether
Defendant had constructive knowledge of the hazard that allegedly caused
The Court notes that Murray’s testimony and the record before the Court does not
show that the location where Plaintiff fell was specifically inspected as part of a
safety sweep or zoning by Defendant’s employees. Murray’s testimony about
inspection procedures and the results of inspections does not demonstrate personal
knowledge regarding the condition of the floor where Plaintiff fell on the day she
was injured. (Ex. A to Def.’s Mot. for Summ. J.). This lack of evidence in the
record regarding inspections of the location where Plaintiff fell is further support
for concluding that summary judgment is inappropriate based on absence of
Plaintiff’s injury and, as a result, summary judgment cannot be granted based on
absence of constructive knowledge.
Whether the undisputed facts show that Plaintiff failed to exercise
reasonable care to avoid the hazard
“[A]n invitee has a duty to look where she is walking and is imputed with
constructive knowledge of large objects which are in plain view at a location where
they are customarily found and expected to be.” Ward v. Autry Petroleum Co.,
637 S.E.2d 483, 487 (Ga. Ct. App. 2006). “The invitee is not bound to avoid
hazards not usually present on the premises and which the invitee, exercising
ordinary care, did not observe, and the invitee is not required, in all circumstances,
to look continuously at the floor, without intermission, for defects in the floor.”
Robinson, 493 S.E.2d at 409.
“What constitutes a reasonable lookout depends on all the circumstances at
the time and place.” Id. “[A]n invitee’s failure to exercise ordinary care is not
established as a matter of law by the invitee’s admission that he did not look at the
site on which he placed his foot or that he could have seen the hazard had he
visually examined the floor before taking the step which led to his downfall.” Id.
Defendant claims that Plaintiff’s failure to observe and avoid a three-inch
diameter spill of an oily substance on the floor of the boys’ clothing department in
Defendant’s store is “plain, palpable, and undisputed” evidence of Plaintiff’s
failure to exercise ordinary care sufficient to award it summary judgment as a
matter of law. On the facts here, the Court finds there is a genuine dispute of fact
regarding whether Plaintiff exercised ordinary care under all the circumstances at
the time to observe and avoid a slippery substance in the clothing area of the store.4
See id.; see also Ward, 637 S.E.2d at 487-88. Summary judgment for Defendant is
not appropriate based on its claim that Plaintiff failed to exercise ordinary care.
Defendant’s Motion for Medical Exam
Rule 35 of the Federal Rules of Civil Procedure governs physical and mental
examinations. Rule 35 states in relevant part:
The court where the action is pending may order a party whose
mental or physical condition . . . is in controversy to submit to a
physical or mental examination by a suitably licensed or certified
examiner . . . The order may be made only on motion for good cause
and on notice to all parties and the person to be examined; and must
specify the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it.
The Supreme Court of Georgia instructs that “[d]emanding as a matter of law that
an invitee visually inspect each footfall requires an invitee to look continuously at
the floor for defects, a task an invitee is not required to perform since the invitee is
entitled to assume that the owner/occupier has exercised reasonable care to make
the premises safe for the invitee and continues to exercise such care while the
invitee remains on the premises.” Robinson, 493 S.E.2d at 410 (internal citation
Fed. R. Civ. P. 35(a). The “in controversy” and “good cause” requirements of
Rule 35 “are not met by mere conclusory allegations of the pleadings – nor by
mere relevance to the case – but require 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.”
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). A plaintiff in a negligence
action who asserts a physical injury ordinarily places that physical injury in
controversy and provides the defendant with good cause for an examination to
determine the existence and extent of the injury claimed. See id. at 119.
“Good cause for ordering a physical examination exists when the
examination would allow the defendant’s expert an opportunity to determine the
cause and extent of the plaintiff’s alleged physical injuries.” Whitley v. Comcast
of Ga., Inc., Case No.: 3:05-cv-82 (CAR), 2006 U.S. Dist. LEXIS 89691, at *8
(M.D. Ga. Dec. 11, 2006) (citing O’Sullivan v. Rivera, 229 F.R.D. 184, 186
(D.N.M. 2004)). “Courts have reasoned that IMEs [Independent Medical
Examinations] are often necessary, even when the plaintiff’s medical records are
available, because there are few, if any, acceptable substitutes for a personal
physical examination . . . Thus, understandably, a defendant’s defense at trial may
be severely prejudiced if he is not permitted to obtain the testimony of an expert
[or physician] who has personally examined the plaintiff.” See id. at *9.
Although Rule 35 is silent on the question of who may attend an
examination, “such examinations, like all other forms of discovery,
are subject to the general provision of Rule 26(c) that the court ‘may
make any order which justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense.’” Tirado v. Erosa, 158 F.R.D. 294, 297 (S.D.N.Y. 1994);
see also Morton v. The Haskell Company, 1995 WL 819182, *3
(M.D. Fla. 1995) (“The court is satisfied that it has the discretionary
authority to impose a variety of conditions which, balancing the
factors in each individual case, ensure that the interests of justice are
obtained.”). “The appropriate inquiry is whether special conditions
are present which call for a protective order tailored to the specific
problems presented.” Tirado, 158 F.R.D. at 299; see also Ali, 162
F.R.D. at 168 (“After considering all the circumstances of the case,
the Court [found] no special need which require[d] the presence of a
court reporter, plaintiff’s wife, or other recording equipment.”). It is
the burden of the party seeking the special conditions to establish their
existence. See Tirado, 158 F.R.D. at 299.
Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 323-24 (N.D. Ga. 2000).
Plaintiff has alleged serious injuries from her slip and fall on Defendant’s
premises, to include “special damages which include but may not be limited to
medical expenses, mileage, and other miscellaneous expenses,” as well as “past,
present and future general and special damages.” (Compl. ¶ 6). Plaintiff has also
alleged ongoing pain that is not subject to adequate evaluation from the medical
records produced in discovery. Plaintiff’s physical condition is at issue in this
personal injury action and good cause exists to permit Defendant to conduct an
independent medical examination.5 See Schlagenhauf, 379 U.S. at 118;
O’Sullivan, 229 F.R.D. at 186-87. An independent medical examination is
particularly appropriate here because Defendant would be prejudiced in contesting
the nature and extent of Plaintiff’s injuries by having to rely exclusively on
Plaintiff’s medical records and testimony from her treating physicians. See Berry
v. Mi-Das Line S.A., No. CV408-159, 2009 WL 3213506, at *1-3 (S.D. Ga. Oct.
5, 2009); Romano v. Interstate Exp., Inc., No. CV408-121, 2009 WL 211142, at *2
(S.D. Ga. Jan. 28, 2009); Whitley, 2006 U.S. Dist. LEXIS 89691, at *8;
O’Sullivan, 229 F.R.D. at 186-87; Duncan v. Upjohn Co., 155 F.R.D. 23, 24-25
(D. Conn. 1994); Bennett v. White Labs., Inc., 841 F. Supp. 1155, 1158 (M.D. Fla.
The Court next considers Plaintiff’s request that conditions be imposed on
any examination ordered by the Court. Defendant has agreed to Plaintiff’s requests
that the examination be limited in scope, that Plaintiff be provided with access to
any reports prepared from the examination, and that the examiner be made
available for a deposition prior to trial. (Def.’s Reply Br. in Supp. of Def.’s Mot.
The Court notes that Plaintiff largely relies upon non-binding authorities from
various state courts in opposing Defendant’s request for a medical examination
under Rule 35 and requesting that her counsel be permitted to attend or videotape
any examination ordered by the Court. The Court finds these authorities are not
persuasive on the issues of whether an examination should be ordered and, if so,
whether the conditions requested by Plaintiff should be imposed.
for Medical Examination  at 17-18). As to Plaintiff’s request that her attorney
be permitted to attend the examination, to have the examination videotaped, and to
have the Court select the examiner, the Court finds that Plaintiff has not met her
burden of establishing that these special conditions are necessary. See O’Sullivan,
229 F.R.D. at 187 (adversarial process and presentation of issues supported by
permitting movant to select examiner); Bethel, 192 F.R.D. at 323-24 (presence of
third parties or recording devices impedes the ability of an examiner to conduct a
proper examination without transforming it into an adversarial event); McKitis v.
Defazio, 187 F.R.D. 225, 228 (D. Md. 1999) (“absent a compelling determination
of need . . . a party’s counsel should not be permitted to attend a Rule 35
examination”); Holland v. United States, 182 F.R.D. 493, 495 (D.S.C. 1998)
(majority of federal courts favor “the exclusion of the plaintiff’s attorney from a
Rule 35 examination absent a compelling reason” and reject “the notion that a third
party should be allowed, even indirectly through a recording device, to observe a
Rule 35 examination”); Duncan, 155 F.R.D. at 26 (plaintiff must raise a valid
objection beyond bias to justify the appointment of an examiner other than that
proposed by movant); Looney v. Nat’l R.R. Passenger Corp., 142 F.R.D. 254, 265
(D. Mass. 1992) (“plaintiff’s ability to object to an expert physician chosen by the
defendant should be rather limited with any questions of bias or prejudice of either
side’s chosen expert being left to full exploration at trial”).6 These requested
additional conditions are denied.
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment  is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Medical
Examination  is GRANTED. Defendant shall provide Plaintiff with three
proposed dates from which to choose for the examination. The examination will
be performed by Dr. Bennett J. Axelrod. The scope of the examination will be
reasonably limited to investigating the cause, nature, and extent of Plaintiff’s
injuries allegedly caused by her slip and fall on Defendant’s premises, and to
ascertain Plaintiff’s current physical condition and medical history. The
examination must be completed on or before February 8, 2013. The deposition of
If necessary, Plaintiff may renew her request to exclude references at trial to
“independent” when motions in limine are due pursuant to the pre-trial order. The
Court also finds that Dr. Axelrod is not required to disclose his tax and financial
records from the period 1999-2002 because they are not relevant to his
examination of Plaintiff and are not calculated to lead to the discovery of relevant
evidence in this action. See Fed. R. Evid. 401; Fed. R. Civ. P. 26(b)(1); Chrysler
Intern. Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002); Lee v. Etowah
Cnty. Bd. of Ed., 963 F.2d 1416, 1420 (11th Cir. 1992); Am. Key Corp. v. Cole
Nat’l Corp., 762 F.2d 1569, 1578 (11th Cir. 1985).
Dr. Axelrod, if conducted, must be completed on or before February 28, 2013. The
parties shall submit their Pre-Trial Order on or before March 1, 2013.
SO ORDERED this 9th day of January, 2013.
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?