Carter v. Belk, Inc. et al

Filing 57

ORDER granting 51 Motion to Compel. The Court Orders Carter's counsel to comply with the "machine readable" directive, which applies to all E-filers before this Court. Signed by Magistrate Judge G. R. Smith on 7/13/15. (wwp) Modified on 7/14/2015 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOAN CARTER,
Plaintiff,
Case No. CV414-053

V.

BELK, INC., d/b/a BELK OF
SAVANNAH, and JANE DOE,
Defendants.

ORDER
Joan Carter brought this premises liability case against Belk, Inc.
(Belk). Doc. 1-2. She was injured after "she tripped and fell over the
bottom wheeled portion of a mobile clothes hanging rack" that was
"obscured by the densely crowded stationary racks of hanging clothes" in
the women's apparel section of Belk's store. Doc. 1-2 ¶11 5, 7•1 Belk
unsuccessfully moved for summary judgment, doc. 28, which means
"[tjhis case will proceed to trial." Doc. 50 at 11. Citing her physical

For the purpose of this Order only, the Court is accepting her factual assertions as
true.
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damages claim, Belk moves under Fed. R. Civ. P. 352 to compel an
Independent Medical Examination (IME). Doc. 51. Belk's counsel
represents that plaintiff's counsel has consistently "failed to respond to
[Belk's] request for an examination." Id. at 3. Carter does not dispute
that.
Nor is there any dispute that Carter's physical condition is at issue,
that she is seeking to recover damages for the physical injury (her
shoulder, etc.) allegedly caused by her in-store fall, and that an IME is
justified. In fact, the only dispute here is over location. Belk wants her
to be seen by an Atlanta area specialist of its choosing. Doc. 56 at 1-2. It
is even willing to pay for her travel expenses to there from Savannah,
where she lives. Id. at 2.
Plaintiff, who has been receiving treatment at two Savannah,
Georgia neurology practices, doe. 51 at 5, insists on evaluation by one of
her Savannah area specialists. Doe. 55. She claims undue hardship and

2

Rule 35(a)(1)&(2), summarized:
When the mental or physical condition. . . of a party. . . is in controversy, the
court in which the action is pending may order the party 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 shown.

Fed. R. Civ. P. 35(a)(1)&(2).
2

that Belk's consulting physician "has already expressed bias against
[her] by virtue of the adverse opinions that he has rendered without ever
having seen the [p]laintiff." Id. at 2. "An unbiased Independent Medical
Examination," she insists, "can be reasonably acquired in Savannah,
Georgia."

Id.

Belk disagrees, emphasizing that a fair and impartial

medical expert cannot feasibly be located in Savannah. Doc. 56.
Discovery is supposed to be self-executing, Leaks v. Target Corp.,
2015 WL 4092450 at *1 n. 1 (S.D. Ga. July 6, 2015), and litigants have
"an affirmative duty to engage in pretrial discovery in a responsible
manner that is consistent with the spirit and purposes of Rules 26
through Rule 37, and . . . each attorney [is obligated] to stop and think
about the legitimacy of a discovery request, a response thereto, or an
objection."

Bottoms v. Liberty Life Assur. Co. of Boston,

2011 WL

6181423 at * 4 (D. Cob. Dec. 13, 2011). In addition, the parties are
supposed to cooperate -- thus confer' -- before resorting to judicial
intervention and consuming Court resources. Carter has not responded
Local Rule 26.5(c) reminds attorneys "that Fed. R. Civ. P. 26(c) and 37(a)(2)
require a party seeking a protective order or moving to compel discovery to certify
that a good faith effort has been made to resolve the dispute before coming to court."
"That rule is enforced." Hernandez v. Hendrix Produce, Inc., 2014 WL 953503 at * 1
(S.D. Ga. Mar. 10, 2014). And the conference must be meaningful. Hernandez v.
Hendrix Produce, Inc., 297 F.R.D. 538, 540 (S.D. Ga. 2014); State Farm Mut. Auto.
Ins. Co. v. Howard, 296 F.R.D. 692, 697 (S.D. Ga. 2013).

3

to, and thus does not dispute, Belk's complaint that it has repeatedly
contacted her, yet she failed to confer. That duty means that the parties
must talk to each other directly, and not wait to do so through briefs that
this Court must also read. Even though Belk does not seek Fed. R. Civ.
P. 37 fees, the Court GRANTS its IME motion (doe. 51) in no small part
as a sanction for Carter's failure to confer.'
For that matter, IME's are relatively routine in personal injury
cases where plaintiffs are free to exaggerate their pain and suffering, and
personal-physician bias is not unknown. See Romano v. Interstate Exp.,
Inc., 2009 WL 211142 at * 2 (S.D. Ga. Jan. 28, 2009) ("Nothing in Rule
35 mentions a 'mutually chosen' examiner. Plus, plaintiff reaped the
benefit of employing his own medical experts. . . to support his case, thus
triggering a proverbial 'battle of the experts.' Hence, defendants are
" Carter also has been filing "bad scans" with this Court. Does. 42 & 55. Every Efiled document should be "machine readable" because it enables users to search it
using key words, and also mark and copy text from it. Producing a "machine
readable" .pdf file, which is required for E-filing, is easy. Most word processors have
a "publish to .pdf" or "print to .pdf" drop-down option under a "File," then "Print"
command. Counsel should use that feature, which produces a machine-readable .pdf.
Parties must not print out a document and then run it through a mechanical
scanner, which counsel here apparently has been doing (his E-filings have not been
machine readable, thus hampering Court operations). That method fails to produce a
machine-readable .pdf. Counsel should contact the Clerk's office should additional
guidance be needed. The Court ORDERS Carter's counsel to comply with this
directive, which applies to all E-filers before this Court.

entitled to their own medical experts.") (footnote omitted), cited in Funez
v. Wal-Mart Stores East, LP, 2013 WL

123566 at * 7 (N.D. Ga. Jan. 9,

2013) ("An [IME] is particularly appropriate here because Defendant
would be prejudiced in contesting the nature and extent of Plaintiffs
injuries by having to rely exclusively on Plaintiffs medical records and
testimony from her treating physicians."). And Carter does not specify
exactly how her travel burden is "undue." Finally, it is simply too easy
to label a proposed IME physician "biased" merely because he is being
paid by an adversary -- that's grist for the cross-examination mill.'
Accordingly, the Court GRANTS Belk's motion to compel (doc.
51). As promised (its last Order denied Belk's IME motion until after the
summary judgment motion was reached, doc. 43), the Court will grant
any needed extension to facilitate this layer of discovery.
SO ORDERED this 13 -)K day of July, 2015.

UNITED 1ATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA.

See Looney v. Nat'l R.R. Passenger Corp., 142 F.R.D. 254, 265 (D. Mass. 1992)
("[P]laintiffs ability to object to an expert physician chosen by the defendant should
be rather limited with any questions of bias or prejudice of either sides chosen expert
being left to full exploration at trial.").