Jump v. Montgomery County et al

Filing 92

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Defendants' Emergency Motion to Compel Rule 35 Independent Medical Examination of Plaintiff 87 ALLOWED. See written order. (LB, ilcd)

E-FILED

Wednesday, 30 September, 2015 04:30:53 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
KARI JUMP,

)
)
Plaintiff,
)
)
v.
)
)
MONTGOMERY COUNTY,
)
SHERIFF JIM VAZZI, in his
)
official and individual capacity,
)
RICK ROBBINS, KURT ELLER, )
RICK FURLONG, DOUG
)
WHITE, GREGORY NIMMO, and )
MARY SHIPMAN, in their
)
individual capacities,
)
)
Defendants.
)

No. 13-3084

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendants’ Emergency
Motion to Compel Rule 35 Independent Medical Examination of Plaintiff
(d/e 87) (Motion). For the reasons set forth below, the Motion is
ALLOWED.
Defendants seek the independent medical examination because
Plaintiff Kari Jump has asserted that she suffered severe long-term
emotional damage as a result of the Defendants’ alleged wrongful conduct.
Jump has also disclosed expert witnesses who will testify about Jump’s
Page 1 of 6

mental condition, including a retained expert psychologist, Dr. Louise
Fitzgerald.1 Defendants seek an independent medical examination to
discover information regarding Jump’s mental condition. The Court may
order an independent medical examination in this circumstance. Fed. R.
Civ. P. 35. Defendants ask the Court to order Jump to appear on October
19 and 20, 2015, at 446 East Ontario Street, Suite 7-100, Chicago, Illinois
60611 at 1:00 p.m. each day to be examined by a psychiatrist, Dr. Stephen
Dinwiddie, M.D., and a neuropsychologist, Dr. Michael Brook, Ph.D. Jump
states that she agrees to such an examination, but asks for the Court to
impose three conditions on the examination. The Court addresses each of
Jump’s requested conditions below.
Jump first asks for a detailed testing protocol for the examination
before testing begins. Jump argues that the Court’s order must include
such information. Rule 35 states that an order for an examination:
(A) may be made only on motion for good cause and on notice
to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope
of the examination, as well as the person or persons who will
perform it.

1

The parties do not indicate the precise degree held by Dr. Fitzgerald, such as Psy.D. or Ph.D.

Page 2 of 6

Fed. R. Civ. P. 35(a)(2)(A) and (B). The Defendants have set forth in the
Motion sufficient information to allow the Court to meet these requirements.
Jump’s request for a more specific testing protocol is denied.
Jump next asks to audio record the examination. The request is
denied. Whether to allow a recording is within the discretion of the Court.
The Court has considered the matter carefully and agrees with the District
Courts that have not allowed recordings without a showing of good cause.
See e.g., Stefan v. Trinity Trucking, LLC, 275 F.R.D. 248, 250 (N.D. Ohio
2011); E.E.O.C. v. Grief Bros. Corp., 218 F.R.D. 59, 64 (W.D.N.Y.2003);
Haymer v. Countrywide Bank, FSB, 2013 WL 657662, at *5 (N.D. Ill. Feb.
22, 2013); Letcher v. Rapid City Regional Hosp., Inc., 2010 WL 1930113,
at *9-10 (S. D. May 12, 2010). The Court agrees with these courts that a
Rule 35 examination is a medical examination, not an adversarial process,
and that recording the examination could adversely affect the test results.
Jump’s expert, Dr. Fitzgerald, will also be able to review the outcome of the
examination and identify any problems with the examination’s validity.
There is no indication that Dr. Fitzgerald’s examination of the Plaintiff was
recorded in any manner. The Court respectfully declines to follow the
District Courts that have reached a contrary conclusion. See e.g.,
Underwood v. Fitzgerald, 229 F.R.D. 548, 550 (M.D. Tenn. 2005); Sidari v.
Page 3 of 6

Orleans County, 174 F.R.D. 275, 291 (W.D. N.Y. 1996); Gavenda v.
Orleans County, 174 F.R.D. 272, 274 (W.D. N.Y. 1996); Zabkowicz v. West
Bend Co., 585 F. Supp. 635 (E.D.Wis 1984). Jump makes no showing of
any cause for a recording. She speculates that a possibility of abuse might
occur, but speculation is not good cause. No one shall attend the
examination other than Jump, Drs. Dinwiddie and Brook, and their
respective assistants if any; and no audio or visual recording shall be made
of any portion of the examination.
Lastly, Jump asks that her expert psychologist, Dr. Louise Fitzgerald,
be directed to send her raw data from her examination of Jump to Dr.
Brook rather than to Dr. Dinwiddie. This request is allowed. The
Defendants have no objection to this request.
THEREFORE Defendants’ Emergency Motion to Compel Rule 35
Independent Medical Examination of Plaintiff (d/e 87) is ALLOWED. The
Court hereby orders:
1. Plaintiff Kari Jump shall appear at October 19 and 20, 2015, at
446 East Ontario Street, Suite 7-100, Chicago, Illinois 60611, at
1:00 p.m. each day to be examined by a psychiatrist, Dr. Stephen
Dinwiddie, M.D., and a neuropsychologist, Dr. Michael Brook,
Ph.D.
Page 4 of 6

2. On October 19, 2015, Dr. Dinwiddie will interview Jump, ask
questions about her medical history and records, and conduct a
mental health status examination.
3. On October 20, 2015, Dr. Brook will ask follow-up questions
and administer psychological testing which testing may include:
(1) Wide Range Achievement Test – 4th Edition (WRAT-4);
(2) Montreal Cognitive Assessment (MoCA); (3) Minnesota
Multiphasic Personality Inventory – 2nd Edition – Restructured
Form (MMPI-2-RF); (4) Millon Clinical Multiaxial Inventory- 3rd
Edition (MCMI-III); (5) Posttraumatic Stress Diagnostic Scale
(PDS); and (6) other similar tests determined by Dr. Brook to be
appropriate under the circumstances.
4. Plaintiff Kari Jump shall cooperate with Dr. Dinwiddie and
Dr. Brook in the examination, and shall stay at the examination site
each day as long as Dr. Dinwiddie or Dr. Brook requires her
attendance.
5. No one may attend the examination other than Plaintiff Kari Jump;
Dr. Dinwiddie and his assistants, if any; and Dr. Brook and his
assistants, if any.

Page 5 of 6

6. No audio or visual recording shall be made of any portion of the
examination.
7. On or before October 5, 2015, Plaintiff’s expert, Dr. Louise
Fitzgerald, shall provide to Dr. Brook the raw tests results from her
examination of Plaintiff Jump.
8. On or before November 20, 2015, Drs. Dinwiddie and Brook shall
prepare a report in writing (IME Report) which shall set out in detail
their findings, including diagnoses, conclusions, and results of
tests; and shall deliver a copy of the IME Report to Plaintiff’s
counsel and Defendants’ counsel.

ENTER: September 30, 2015

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

Page 6 of 6