Hetterscheidt v. CSX Transportation, Inc. et al

Filing 40

ORDER granting in part and denying in part 34 Motion for Reconsideration. The Courts March 26, 2013, order (Doc. 33) granting the Defendants (Doc. 31) motion for a physical exam is REVISED as follows: Defendant requests Plaintiff's presence a t a physical exam to occur on April 11, 2013 in accordance with Rule 35. Plaintiff consents but urges the Court to impose certain limitations on the exam. The Court adopts the conditions set forth by Plaintiff in sub-paragraphs c) through f) of parag raph 9 of his (Doc. 32) response and grants the (Doc. 31) motion. The conditions set forth in sub-paragraphs a) and b) of paragraph 9 are rejected as overly broad and unreasonable. The full report of Dr. Peter Anderson shall be forwarded to Plaintiffs counsel upon completion of the exam. See attached document. Signed by Magistrate Judge Philip M. Frazier on 4/4/2013. (ajt)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
DENNIS HETTERSCHEIDT,

)
)
Plaintiff,
)
)
vs.
)
)
CSX TRANSPORTATION, INC., et al., )
)
Defendants.
)

Case No.: 3:12-cv-00587-JPG-PMF

ORDER
FRAZIER, Magistrate Judge:
Before the Court is the Defendants’ (Doc. 34) motion to reconsider the Court’s (Doc. 33)
March 26, 2013, order granting the (Doc. 31) motion for a physical exam pursuant to Rule 35 of
Federal Rules of Civil Procedure. Plaintiff has filed a response (Doc. 38) and the Defendants
have filed a reply (Doc. 39).
The Defendants filed their motion for a physical exam on March 20, 2013. See Doc. 31.
The motion properly identified the relevant details of the proposed examination, which was to
occur on April 11, 2013. Plaintiff filed a response five days later. See Doc. 32. The response
indicated that Plaintiff was willing to submit to the exam only if certain protective measures
were taken. See id. Plaintiff listed the proposed protective measures as follows:
a) Defendants’ medical examiner should not ask and Plaintiff does not have to
answer any questions regarding medical history, symptoms, medical condition,
diagnosis, causation, prognosis, or other questions regarding Plaintiff’s physical
condition.
b) Defendants’ medical examiner should not submit and Plaintiff does not have to
answer any written questions regarding medical history, symptoms, medical
condition, diagnosis, causation, prognosis, or other questions regarding Plaintiff’s
physical condition.
c) That Plaintiff does not need to answer verbal or written questions regarding any
mental/emotional/psychiatric issues.
d) That defense counsel or any other agents of defense counsel cannot be present
during the examination of the Plaintiff.
e) That Plaintiff does not need to undergo radiological or imaging testing.
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f) Defendants’ physical examination of the Plaintiff be limited to two (2) hours.
See id. at 2-3 ¶ 9. Understanding the need for urgency with exam fast approaching on April 11,
the Court granted the (Doc. 31) motion on March 26, 2013. See Doc. 33. In doing so, it imposed
the requested protective measures listed in Plaintiff’s (Doc. 32) response without giving the
Defendants an opportunity to object to the proposed restrictions. See id.
The Defendants filed the instant (Doc. 34) motion for reconsideration on the same day
that (Doc. 33) order was filed. They argue, generally, that the protective measures imposed by
the Court cut against the purpose of Rule 35. The Defendants cite to cases interpreting Rule 35
and cases where similar restrictions have been rejected in the past. Plaintiff has responded to the
motion for reconsideration by arguing that the Defendants waived their argument regarding any
limitations placed upon the exam by failure to argue any parameters of the scope, nature, type,
and duration of the proposed exam. See Doc. 38 at 2 ¶ 5.
An order that “adjudicates fewer than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights
and liabilities.” FED. R. CIV. P. 54(b). Here, the Defendants’ argument is more convincing, and
the Court will revise its prior ruling because the Defendants should have been afforded a
reasonable opportunity to object to the proposed restrictions in Plaintiff’s response. The Court
does not agree that the Defendants waived their objections to any restrictions on the scope of the
exam in its initial motion. Plaintiff essentially asks the Court to rule that the Defendants should
have guessed as to what restrictions would have been proposed, if any, in Plaintiff’s response. If
the Defendants would have been afforded an opportunity to object to the restrictions, the Court
likely would have sustained the objections as to the restrictions in subparagraphs a) and b) as
overly broad and unreasonable, as it has done in the past when a reasonable time to object had

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been permitted. Accordingly, the Defendants (Doc. 34) motion to reconsider is GRANTED, in
part, and DENIED, in part.
The Court’s March 26, 2013, order (Doc. 33) granting the Defendants’ (Doc. 31) motion
for a physical exam is REVISED as follows:
Defendant requests Plaintiff's presence at a physical exam to occur on April 11, 2013 in
accordance with Rule 35. Plaintiff consents but urges the Court to impose certain limitations on
the exam. The Court adopts the conditions set forth by Plaintiff in sub-paragraphs c) through f)
of paragraph 9 of his (Doc. 32) response and grants the (Doc. 31) motion. The conditions set
forth in sub-paragraphs a) and b) of paragraph 9 are rejected as overly broad and unreasonable.
The full report of Dr. Peter Anderson shall be forwarded to Plaintiff’s counsel upon completion
of the exam.
IT IS SO ORDERED.
DATED: April 4, 2013.

s/ Philip M. Frazier
PHILIP M. FRAZIER
UNITED STATES MAGISTRATE JUDGE

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