Reeder et al v. Butler Transport et al

Filing 48

ORDER GRANTING 44 MOTION for Order toDirect Plaintiff Cendy Reeder to Submit to Physical Examination filed by Terry Crisman, Butler Transport, Inc. Signed by Magistrate Judge Reona J. Daly on 5/9/2022. (nmf)

Case 3:21-cv-00202-SMY Document 48 Filed 05/09/22 Page 1 of 4 Page ID #148

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CENDY REEDER, RICHARD REEDER,
and RJ TRANSPORT, INC.,
Plaintiffs,
v.
BUTLER TRANSPORT, INC. and
TERRY CRISMAN,
Defendants.

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Case No. 21-cv-202-SMY

ORDER
DALY, Magistrate Judge:
Plaintiffs Cendy Reeder, Richard Reeder, and RJ Transport, Inc. filed their complaint
against Butler Transport, Inc. and Terry Crisman to recover for personal injuries, loss of
consortium, and loss of use allegedly suffered as a result of the collision of two semi-trucks
claimed to be caused by Defendant Terry Crisman.
Now before the Court is Defendants’ Motion for Independent Medical Examination of
Plaintiff Cendy Reeder (Doc. 44), which was referred to the undersigned by District Judge Staci
Yandle on April 25, 2022.
In their motion, Defendants ask the Court to enter an order directing Cendy Reeder to
submit to a physical examination on May 4, 2022 with Dr. Jeffrey Kaplan, a neurologist. In
support of their request, Defendants assert Ms. Reeder’s physical and mental condition, the nature
and extent of her alleged injuries and disability, and her claim for future medical care and
treatment are in significant dispute and, as such, Defendants require a physical examination
concerning Ms. Reeder’s alleged neck and head injuries and post-concussive syndrome.
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Defendants assert the physical examination will include evaluation of Ms. Reeder’s medical
history, family history, social history, employment history, and evaluation and testing of Ms.
Reeder’s head, neck, and spine.
Plaintiffs oppose Defendants’ motion, noting that although Ms. Reeder consents to Dr.
Kaplan performing an examination, there are disputes concerning the terms of the examination and
activities that Dr. Kaplan intends to perform. More specifically, Ms. Reeder contends any such
examination should not include an evaluation of her medical history, family history, social history,
or employment history, as such information is readily available in the medical records and other
documents that have already been exchanged in this case, and therefore, there is no “good cause”
for evaluation of the same. Plaintiffs also ask that the Court require Defendants to set forth the
specific tests Dr. Kaplan intends to perform, and that any testing be limited to Ms. Reeder’s head
and neck.
Defendants replied to Plaintiffs’ response, arguing there is no basis for the limitations
Plaintiffs seek, and noting Plaintiffs failed to cite any Federal Rule or case law in support of their
proposition. Defendants further contend that inquires about past medical history are a routine
part of independent medical examinations and assert Dr. Kaplan should not be restricted from
questioning Ms. Reeder about her medical history. With regard to the specific tests Dr. Kaplan
may perform, Defendants assert such information is not required by the Federal Rules, but offers
that Dr. Kaplan will perform a neurologic examination and a cognitive test such as a “MoCA.”
Dr. Kaplan may also conduct a grip strength test.

Finally, Defendants assert limiting Dr.

Kaplan’s testing to Ms. Reeder’s head and neck is not appropriate in this case as Reeder does not
allege that her injuries were limited to her head and neck; rather, at her deposition, Reeder testified
that she injured her arm, shoulder, head, neck, back, and her “sides.” Plaintiff also alleges she
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suffers headaches, short-term memory loss, difficulty concentrating, nausea, stuttering, blurred
vision, difficulty focusing, balancing difficulties, difficulty processing thoughts, and difficulty
reading.
A party seeking to compel another party to submit to a physical or mental examination
must obtain an order under Rule 35. The rule requires a “discriminating application” by the trial
court in order to determine whether the moving party has satisfied the substantive requirements of
the Rule. Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964). To satisfy the substantive
requirements of Rule 35, the moving party must show that: (1) the party’s mental or physical
condition is in controversy; and (2) there is good cause for the examination. Fed. R. Civ. P.
35(a)(1)-(2)(A); Schlagenhauf, 379 U.S. at 116. The moving party must also specify the time,
place, manner, conditions, and scope of the examination. Fed. R. Civ. P. 35(a)(2)(B).
Here, Plaintiffs do not dispute that Ms. Reeder’s physical condition is in controversy, nor
do they contend there is not good cause for an examination. Rather, Plaintiffs argue there is not
good cause for an inquiry into Ms. Reeder’s medical, family, social, and employment history
because “such information is readily available in the medical records and other documents that
have been exchanged in the case.” Plaintiffs do not provide support for their assertion that testing
should be limited to Ms. Reeder’s head and neck.
In this instance, the Court finds there is good cause for Ms. Reeder to undergo a Rule 35
examination conducted by Dr. Kaplan.

The Court further finds Dr. Kaplan may evaluate

Plaintiff’s medical history, family history, social history, and employment history despite such
information already being available in previously-produced records, as medical examinations
consistently evaluate such history, and the Court will not micro-manage how Dr. Kaplan performs
his testing. The Court obviously expects Dr. Kaplan to act professionally and not submit Ms.
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Reeder to any unnecessary testing. Further, the Court declines to restrict evaluation to Ms.
Reeder’s head and neck only, as she placed at issue various cognitive functions that may be
assessed with a neurologic examination. Accordingly, Defendants’ Motion for Independent
Medical Examination of Plaintiff Cendy Reeder (Doc. 44) is GRANTED.
The Court Orders an examination by Dr. Kaplan of Ms. Reeder’s head, neck, and spine.
The examination shall take place at 10600 Mastin, Overland Park, Kansas, 66212. Ms. Reeder’s
husband is permitted to attend Dr. Kaplan’s examination and he is permitted to film it on a cell
phone, in lieu of Plaintiffs’ counsel traveling from Chicago, Illinois for said examination.
Plaintiffs shall submit the footage to Defendants in full following completion of the examination.
As this Order is being issued subsequent to the previously scheduled examination, the parties are
ordered to meet and confer to reschedule the examination as expeditiously as possible on a date
acceptable to all parties.
IT IS SO ORDERED.
DATED: May 9, 2022
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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