Mack et al v. United States of America

Filing 32

ORDER granting 28 Motion to Compel. Within 14 days of the date this Order is served, the parties shall meet and confer regarding the time, place, manner, conditions, and scope of the examination and submit a report of that meeting to the Court. Signed by Magistrate Judge G. R. Smith on 1/4/15. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
TERRENCE E. MACK and LUCINDA
MACK,
Plaintiffs,
Case No. CV415-112

V.

UNITED STATES OF AMERICA,
Defendant.

ORDER
In this medical malpractice suit under the Federal Tort Claims Act,
the Government seeks to compel a Fed. R. Civ. P. 35(a) independent
medical examination (IME) of plaintiff Terrence Mack. Doc. 28.
Plaintiff and his wife, Lucinda, oppose, arguing that defendant fails to
show "good cause" for compelling an exam. Doc. 29 at 1; Fed. R. Civ. P.
35(a) (2) (A).
Mack, a veteran, receives treatment for a variety of medical
conditions' at Veterans Affairs ("VA") medical centers, including at an
outpatient VA clinic in Savannah, Georgia. See doc. 1 at 2. There, he
' Among others, those conditions include hyperlipidemia, hypertension, diabetes,
obesity, tracheostomy, chronic obstructive lung disease, renal disease, anemia, and
stage 4 chronic kidney disease. See doe. 28-2.

claims that VA doctors' negligent treatment of a serious bacterial
infection led to several injuries.' He seeks compensatory damages for his
pain and suffering, lost income, future anticipated medical expenses, and
his wife's loss of consortium. Id. at 8.
To opine on the nature of his injuries, Mack has retained a spinal
cord expert. Doc. 28 at 5. "Given the nature of the allegations, the
significant damages sought, and Mr. Mack's complex medical history,"
the Government retained two experts of its own' and now moves to
compel Mack's physical examination by those doctors. Doc. 28 at 2.
Under Fed. B. Civ. P. 35(a):
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 shown and upon 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.

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In particular, Mack alleges that his mistreatment caused the infection to spread to
his back and caused "permanent neurological deficits." Doc. 1 at 6. Those in turn
manifested as "paralysis in his legs, [a] neurogenic bowel and bladder, and sexual
dysfunction." Id. at 7.
They are Dr. Stanley Williams, a spinal medicine and rehab specialist, and Dr.
James Lineback, "an internal medicine physician with expertise in causation,
disability, and life expectancy in multi-system catastrophic injury cases." Doe. 28 at
2.
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Put differently, "when the mental or physical condition of a party is in
controversy and good cause is shown, Rule 35(a) authorizes the Court to
order the party to submit to" an exam. Romano v. Interstate Exp., Inc.,
2009 WL 211142 at * 1 (S.D. Ga. Jan. 28, 2009).
Mack's injuries unquestionably are "in controversy" in this
litigation.

See Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964) ("A

plaintiff in a negligence action who asserts mental or physical injury
places that mental or physical injury clearly in controversy. . . ."). The
parties dispute only whether the Government has shown good cause (it
shoulders that burden) for the examination.
The Government argues that it exists because Mack's "physical and
mental state cannot be evidenced without the assistance of expert
medical testimony," and "a critical damages determination turns on the
nature and extent of [Mack's] claimed physical injuries." Doc. 28 at 5
(quoting Romano, 2009 WL 211142 at * 1). Plaintiffs, by contrast, say
that rationale only applies when a defendant "is limited to obtaining
information about the plaintiff's medical conditions through medical
records and depositions of nonparty medical providers." Doc. 29 at 4.
Here, however, "[d]efendant's employees have been responsible for

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treating [Mack] for years, and have direct, first-hand knowledge about"
his physical condition.

Id. (emphasis added). Consequently, Mack

contends, "no reasonable justification exists for requiring [him] to
undergo a Rule 35 examination." Id. at 5.
Not so. Good cause exists for a Rule 35 exam when a plaintiff's
physical condition cannot be evidenced without expert testimony based
on that exam. Romano, 2009 WL 211142 at * 1. That's the case here.
Mack has a complex medical history and sussing out the effects of the
infection at the heart of his claims given his unrelated conditions (not to
mention any damages he suffered as a result, the standard of care for
infections like Mack's, etc.) requires an expert.
As the government's use of two experts shows, it likely requires
more than one. All the more good cause for allowing an IME here, as it's
unlikely any one of Mack's treating physicians could provide the holistic
perspective required to provide testimony in this case. Put differently,
it's unlikely any one of his doctors has read the notes of all the others
with an eye to the particular questions raised by Mack's claims. Better
to, as the Government seeks to do, have a completely new doctor
evaluate all the available medical evidence and opine on Mack's injuries.

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Too, "[e]ven with the availability of a plaintiffs medical records, a
defendant generally deserves 'the benefit of an examination by a
physician whose judgment [that defendant's] counsel knows and
respects." Jackson v. Deen, 2013 WL 2027398 at * 5 (S.D. Ga. Apr. 3,
2013). In particular, where, as here, the plaintiff "desire[s] to prove [his]
claim through expert testimony, . . . defendants need not limit their case
to cross examination. . . . Use of their own expert testimony is a wellrecognized and reasonable way of [challenging a plaintiffs claim and
testimony], and an examination by that expert is necessary for the expert
to form a meaningful opinion." Massey v. Wal-Mart Stores E., LP, 2013
WL 396286 at * 1 (M.D. Ga. Jan. 31, 2013).
Mack's contrary assertions notwithstanding, good cause does not
turn on who employs a plaintiff's treating physician (the core of Mack's
opposition to the instant motion). If it did, the treating doctors being
sued in medical malpractice cases (at least in federal court) would never
have cause to request an exam -- they could just talk to themselves and
consult their own notes. Instead, the need for an expert to evidence a
party's physical condition (or calculate his damages) drives the inquiry.

See Romano, 2009 WL 211142 at * 1.

5

Because the Government has shown such need, it has shown good
cause within the meaning of Rule 35. Hence, its motion for an
independent medical examination by Drs. Williams and Lineback is
GRANTED. Doe. 28. Within 14 days of the date this Order is served,
the parties shall meet and confer regarding "the time, place, manner,
conditions, and scope of the examination[]" and submit a report of that
meeting to the Court, which will then issue an appropriate order. Fed. R.
Civ. P. 35(a)(2)(B).
SO ORDERED, this Yday of

M7, 201j

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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