Canania et al v. Dippold Trucking

Filing 73

MEMORANDUM AND ORDER, The Court GRANTS in part and DENIES in part the motion to quash, (Doc. 48), GRANTS the motion for a protective order, (Doc. 64), EXTENDS the time for Olive Surgical to produce those documents by thirty days from the entry of this order, and GRANTS the motion for a rule 35 examination. (Doc. 69). Signed by Judge J. Phil Gilbert on 8/28/2024. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID CANANIA AND CHERYL CANANIA,
Plaintiffs,
v.

Case No. 3:22-cv-02421-JPG

STEVEN K. DIPPOLD AND DIPPOLD
TRUCKING, a corporation,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on several motions: a motion to quash, filed by nonparty Olive Surgical Group, Ltd., on May 9, 2024, (Doc. 48); a motion for entry of a protective
order, filed by non-party Olive Surgical Group, Ltd., on July 12, 2024, (Doc. 64); and a motion
to compel a rule 35 examination, filed by the Defendants on July 25, 2024. (Doc. 69).
Being duly advised in the premises having fully considered the issues and arguments
raised, the Court GRANTS in part and DENIES in part the motion to quash, (Doc. 48),
GRANTS the motion for a protective order, (Doc. 64), EXTENDS the time for Olive Surgical to
produce those documents by thirty days from the entry of this order, and GRANTS the
motion for a rule 35 examination. (Doc. 69).
I.

MOTION TO QUASH
Non-party Olive Surgical Group, Ltd., sought to quash a subpoena served on them by the

Plaintiffs, seeking eight years of financial information from Dr. Robert Bernardi. Olive Surgical
Group objected to the production of that information and argued that four years of financial
information was sufficient, citing Fed. R. Civ. Pro. 26. After calling a hearing on the matter, the
Court determined that four years was appropriate and indicated that a written order would
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follow. Shortly thereafter, the Plaintiffs submitted a proposed order to chambers. However, the
Plaintiffs neglected to mention that Olive Surgical Group either had not consented, or had
outright objected, to the proposed order submitted. Olive Surgical Group submitted their own
proposed order indicating their opposition to the Plaintiffs’ proposed order.
Despite the Court’s clear and unambiguous ruling that four and only four years of
financial records would be subpoenaed, both orders included alternative interpretations of “four
years.” The Plaintiffs believed that calendar years were appropriate and, because 2024 is not yet
a full calendar year, that they were entitled to four full calendar years of financial records for
2020–23, in addition to the financial records for 2024—fifty-five months in total. Olive Surgical,
on the other hand, agreed that calendar years were appropriate, but argued that 2024—even if
incomplete—was still a calendar year. Consequently, Olive Surgical requested that they only be
required to produce financial records for 2021–24—forty-three months in total.
As the parties were unable to agree on the definition of “four years,” the Court clarified
during the hearing that “four years” meant forty-eight months. The motion to quash was
therefore granted in part and denied in part—Olive Surgical Group would still be required to
produce financial documents, but only for four years (forty-eight months) not eight years as the
Plaintiffs had originally asked for, nor for any of the alternative intervals proposed.
II.

MOTION FOR PROTECTIVE ORDER
Given the Court denied the motion to quash only in part, Olive Surgical Group was

required to hand over financial documents for the passed four years. Those documents included
Dr. Bernardi’s tax documents, among other financial papers. Notably, the Court already entered
a protective order between the Plaintiffs and Defendants, but that protective order did not include
third parties and non-parties such as Olive Surgical.

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The Plaintiffs objected to the protective order citing case law disfavoring some protective
orders; however, the case law that the Plaintiffs cite concern blanket protective orders and often
over materials that are directly linked to the litigation or controversy. That is not the situation
here. Dr. Bernardi seeks to protect his specific and personal financial records from public
disclosure and that information is only being sought to evaluate Dr. Bernardi’s bias—it is not
relevant for evaluating the underlying claims involved.
The Plaintiffs quote the Illinois Supreme Court declaring that “the right of access to court
records is essential to the proper functioning of democracy.” Skolnick v. Alzheimer & Gray, 191
Ill.2d 214, 230 (2000). While judicial transparency is a bedrock principle of the American justice
system, it is doubtful that protecting four years of Dr. Bernardi’s financial documents from
public dissemination will be the fatal blow that causes the pillars of American democracy
to collapse.
Generally, “pretrial discovery must take place in the public unless compelling reasons
exist for denying the public access to the proceedings.” American Tel. & Tel. Co. v. Grady, 594
F.2d 594, 596 (7th Cir. 1978). Though that is true, and there is a strong presumption in favor of
the common law right to access, like all rights, “[t]his right . . . is not absolute. The presumption
of access . . . can be rebutted if countervailing interests heavily outweigh the public interests in
access.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (internal quotations omitted).
The public interest “does not always trump the property and privacy interests of the litigants, but
it can be overridden only if . . . there is good cause for sealing a part or the whole of the record in
that case.” Citizens First Nat'l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999).
Importantly, that “strong presumption of public disclosure applies only to the materials that
formed the basis of the parties’ dispute and the district court’s resolution.” Baxter Int'l, Inc. v.

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Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002) (emphasis added).
The Plaintiffs argue that the public interest here supersedes Olive Surgical Group’s
“desire for secrecy.” The Plaintiffs overstate their case. Seeking to protect one’s financial
documents, contracts, and medical work from public disclosure is hardly an effort to shroud this
litigation in secrecy. Olive Surgical seeks protection from public disclosure for only a select
number of Dr. Bernardi’s financial documents. Privacy is not secrecy. As any financial
investigator will attest, many details about someone’s life can be constructed from bank
statements and financial information; it is perfectly reasonable to want to protect that information
from wide, perpetual dissemination, in the internet age. The information is highly sensitive, is
highly intrusive, stretches over four years, and the nature of the internet means that it will be
eternally preserved and easily accessible for any internet user in a matter of seconds. All these
factors support a finding that good cause exists to enter a protective order.
Furthermore, the Plaintiffs are requesting Dr. Bernardi’s financial documents to gather
impeachment evidence for his expert testimony. It is unlikely that Dr. Bernardi’s financial
documents would be a core issue in this case. If this case were about Dr. Bernardi and those
documents, the analysis would be different, but as it stands, it is doubtful these documents would
even appear in a filing, let alone form the basis of this Court’s resolution. As Baxter Int’l v.
Abbott Labs indicates, that fact cuts against the presumption of public access.
When the Court pressed Plaintiffs’ counsel on their reasons for opposing the protective
order, Plaintiffs’ counsel gave two: (1) that it would be burdensome for their office to dispose of
the records after the litigation concludes and (2) that they wished to retain Dr. Bernardi’s
financial information on file to save time and resources in the event that Dr. Bernardi is an
adversarial expert witness in a future case where Plaintiffs’ counsel is involved.

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Neither is convincing.
Beginning with the claim that it would be overly burdensome, the Court is skeptical that
disposing of Dr. Bernardi’s financial documents would be overly burdensome. In the modern era,
most discovery is electronic and even the most luddite litigators have organizational systems that
allow documents to be placed where they can be easily retrieved and disposed of. Plaintiffs’
counsel’s argument would be more persuasive if this burden was placed solely on Dr. Bernardi’s
documents alone, but, as Olive Surgical Group pointed out in their memorandum, there is
already a protective order in place between the parties—meaning Plaintiffs’ counsel’s office will
already be required to sort through and dispose of sensitive information after this litigation has
ended; it should not be difficult to include Dr. Bernardi’s files in that list. Surely if Plaintiffs’
counsel can keep the parties’ protected documents secure, they have the capacity and resources
to keep a nonparty’s protected documents secure; the same is true for their disposal.
Additionally, it seems contradictory for Plaintiffs’ counsel to argue that properly
disposing of Dr. Bernardi’s documents after this case has concluded would be too burdensome,
but then turn around and argue that retention of Dr. Bernardi’s financial documents would be of
some great value to Plaintiffs’ counsel in future litigation. If Plaintiffs’ counsel has the capability
to organize and store Dr. Bernardi’s financial information in a manner that can be easily recalled
and referenced at any point in the future, that detracts from Plaintiffs’ counsel’s claim that they
would be extraordinarily burdened by securing and destroying that same information.
Turning to the claim that retaining Dr. Bernardi’s documents would save time and
resources in future litigation—that is doubtful. Even if the Court were to indulge Plaintiffs’
counsel and allow them to keep Dr. Bernardi’s financial documents for future use, the Court
suspects that, in practice, this would not actually save time or resources. Plaintiffs’ counsel has

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adamantly insisted on obtaining and retaining eight years of Dr. Bernardi’s financial
information—so much so that it was necessary to hold not one, but two hearings on the matter. If
Plaintiffs’ counsel finds it objectionable to not have access to eight years of passed financial
information and cannot compromise on whether an additional six months of information should
or should not be handed over, it is abundantly clear that Plaintiffs’ counsel places great emphasis
on these documents. Without passing judgment on whether the value gained is commensurate
with the time and resources that have been expended, if Plaintiffs’ counsel places such a high
value on having a complete financial picture of Dr. Bernardi, it is logical to presume, were
Plaintiffs’ counsel to encounter Dr. Bernardi in future litigation—whether three months or three
years from now—that Plaintiffs’ counsel will demand Dr. Bernardi’s most recent financial
documents. Thus, regardless of how the Court rules here, Plaintiffs’ counsel would be making
the same demands to a future court, defeating the argument that granting their request would
save time and resources.
If Plaintiffs’ counsel does not wish to retain Dr. Bernardi’s documents to save time and
resources in the future, and Plaintiffs’ counsel are perfectly capable of disposing of those
documents, there is an open question as to why precisely Plaintiffs’ counsel are so insistent on
obtaining and retaining this information. The Court is aware that some law offices retain expert
information to sell or pass on to other interested parties in the future. If that is the reason for
opposing Olive Surgical’s motion for a protective order, the Court strongly disapproves and finds
such reasoning to be an insufficient basis for opposing a protective order. Not only does that
motive pervert the purpose of discovery, it also places the pecuniary gain of the attorneys above
that of their clients—who are paying their attorneys to request, review, and litigate over these
documents when it has little to no benefit for them. While that has not been alleged here, when

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the Court voiced its disapproval of trading information, Plaintiffs’ counsel did not object nor
deny that was their motive.
When an expert witness agrees to provide their opinion, they are subject to scrutiny and
discovery, but that discovery must be reasonable. The Plaintiffs initially requested eight years of
financial information from Dr. Bernardi. At the previous hearing, the Court asked what greater
benefit would be gained by reviewing an additional four years of financial documents. The
Plaintiffs had no satisfying answer. The initial overbroadness of the discovery request, the fact
that Bernardi’s financial documents are unlikely to be a core issue in this case—let alone be
filed—and the Plaintiffs lack of a satisfying answer, begins to paint an unsavory picture: that the
Plaintiffs’ requests may have less to do with gathering financial information for a legitimate
purpose and more to do with some kind of ulterior motive. If that is the case, then Fed. R. Civ.
Pro. 26(c)’s standard for issuing a protective order is more than satisfied.
If litigants in future cases where Plaintiffs’ counsel are involved knew that any expert
they sought to hire, by agreeing to be an expert witness against Plaintiffs’ counsel’s client, would
entirely forfeit their right to privacy and have nearly a decade of their personal financial records
easily, indefinitely accessible on the internet; it would have an extraordinary chilling effect.
Courts are not omniscient; our judicial system relies on expert witnesses in many areas.
Imposing a chilling effect of the magnitude the Plaintiffs request would discourage experts from
sharing knowledge that may be vital to deciding cases. Thus, public policy weighs in favor of
granting the protective order.
The Plaintiffs’ brief stakes out the position that by volunteering to be an expert witness,
one entirely forfeits their right to privacy:
Significantly, Dr. Bernardi and Olive Surgical Group, Ltd. are controlled expert
witnesses who voluntarily inserted themselves into this litigation. As a result,
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this information has no reasonable expectation of privacy and Olive Surgical
Group’s Motion should be denied.
(Doc. 68) (emphasis added). The Court disagrees. Expert witnesses do not forfeit their rights at
the courtroom door. Setting aside public policy concerns, there are times when legitimate
concerns for the interests of justice and judicial transparency require the disclosure of even
sensitive information to the public eye—but that is not the situation here. The Plaintiffs’ lack of
any satisfying explanation for seeking and retaining this information is troubling.
In summary, examining Plaintiffs’ counsel’s reasoning for opposing this protective order
makes little sense. The public is unlikely to even see these documents, any value Dr. Bernardi’s
financial documents would have in future litigation involving him would be minimal to
nonexistent, Plaintiffs’ counsel are more than capable of disposing of these documents after
litigation has ended, and it seems that the only reasons for opposing the protective order are
inappropriate—either to chill, harass, deter, or embarrass Dr. Bernardi and other witnesses; or
alternatively to trade in Dr. Bernardi’s information. Regardless of how the Court rules, Plaintiffs’
counsel’s persistence and insistence that they be given as much information as possible and be
allowed to retain these documents after litigation—despite its minimal benefit—does not aid in
the perception that Plaintiffs’ demands are being driven by some ulterior motive. For all these
reasons, Olive Surgical has met their burden and shown that there are more than sufficient
grounds for concluding that good cause exists under Fed. R. Civ. P. 26(c) to prevent public
disclosure of Dr. Bernardi’s financial documents. Accordingly, the Court grants Olive Surgical’s
request for a protective order.
Given the Court ordered Olive Surgical to disclose those documents within thirty days
and this order comes shortly before that deadline, the Court extends the time for the Defense to
disclose the disputed documents to thirty days after the entry of this order.
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III.

PROTECTIVE ORDER
The Court hereby enters the order as follows:
1.

Purpose of Order. During the course of this litigation, confidential documents

may be produced and the Parties may seek the discovery of certain proprietary and confidential
information and material from each other, as well as from third-parties and non-parties, such as
Olive Surgical Group, LTD and Dr. Robert Bernardi. The Parties may also choose to use
certain proprietary and confidential information in support of pleadings, at hearings, during
depositions and at trial. The purpose of this Order is to prevent disclosure of matters deemed
confidential under the terms of this Order to persons or entities other than those involved in the
prosecution or defense of this litigation and to facilitate the exchange of information between
the Parties and that derived from subpoenas.
2.

Confidential Material. Certain documents and information produced in this

litigation may be considered confidential if: (a) the producing or receiving party considers the
document or information to be proprietary, sensitive and it is of such nature that it is not
generally known or capable of independent discernment; (b) the document or information
relates to a third- party or employee about which the third-party or employee would have a
reasonable expectation of privacy; (c) the producing or receiving party reasonably believes the
document or information to be of such a nature that the use of such document or information by
the other parties (whether parties to this action or otherwise) outside this litigation would give
such party an unfair competitive advantage in the marketplace (“Confidential Material”) or (d)
the information or documents represent non-public information which either of the Parties
would consider to be confidential and proprietary and is only being made available because of
compliance of a subpoena third parties or non-parties.

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3.

Designating Documents and Information as Confidential. All parties

producing or receiving Confidential Material should identify the material as such by marking
each page of the document, or all confidential portions thereof, with a designation of
“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” or as appropriate. The
Parties agree that either may designate documents or information provided by a third party
and/or a non-party as “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” or as
appropriate. The inadvertent failure to designate material as “CONFIDENTIAL” or “SUBJECT
TO PROTECTIVE ORDER” does not preclude a party from subsequently making such a
designation, and, in that case, the material is treated as confidential only after being properly
designated.
a.

Plaintiff, Defendant or third-parties may designate as “Confidential” or

documents, specific written discovery responses (including responses to interrogatories,
document requests, subpoenas, and request for admissions), or testimony by labeling the
specific document, response or transcript pages as “Confidential” as appropriate.
b.

In the event any Confidential Material is used in any Court proceeding herein,

including at depositions, they shall not lose their confidential status through such use, and
the parties shall take all steps reasonably required to protect the confidentiality of such
documents, testimony, information or other materials designated as “Confidential” during such
use.
4.

Designating Deposition Testimony as Confidential. Plaintiff, Defendant, or

third-parties may designate deposition testimony, or any portion thereof, as “Confidential” by
advising the court reporter and other counsel of such designation during the course of the
deposition or within fifteen (15) days following receipt of the deposition transcript.
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5.

Limited Disclosure of Confidential Material. Confidential Material is not to

be used for any purpose other than the prosecution and defense of this litigation. To that end,
no Confidential Material produced by the Parties, Third Parties or Non-Parties may be revealed
to any person other than: (a) the parties; (b) the attorneys of record for the parties; (c) support
staff of such attorneys; (d) the parties’ officers or employees who are directly involved in the
prosecution and defense of this litigation; (e) any expert witness whom the parties engage,
designate or consult; (f) persons who authored the document; (g) the Court; (h) the Court’s
staff; (i) court reporters employed for purposes of recording deposition testimony; and (j) any
person whose testimony is taken, or is to be taken, in this litigation, except that such a person
may only be shown the Confidential Material during his or her testimony and in preparation
therefore, and only to the extent necessary for the preparation or taking of such testimony
(collectively, “Qualified Persons”).
a.

Each Qualified Person to whom Confidential Material is disclosed pursuant to

this Protective Order or who hears testimony concerning the Confidential Material shall be
advised that such information is being disclosed pursuant to, and subject to, the terms of a
Protective Order of the Court and that the sanctions for any violations of the Protective Order
include penalties which may be imposed by the Court for contempt.
b.

Except for use by Qualified Persons, no document or other written material

which contains or makes reference to Confidential Material may be photocopied, transcribed
electronically, or otherwise reproduced, summarized or digested in any manner without the
prior written approval of the party producing said document. The person, corporation,
partnership, association, trust or entity seeking such approval shall specify the reasons and
circumstances underlying such request and shall certify that only those authorized to receive

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Confidential Material under the terms of the Protective Order will receive Confidential
Material as a result of such copying or reproduction. For the purpose of this Protective Order,
transmission by facsimile and/or email is deemed to be copying or reproduction.
6.

Maintaining Confidentiality.

All Qualified Persons shall keep all

Confidential Material in a reasonably secure fashion, and shall take reasonable steps in
accordance with usual business practices necessary to limit access to such materials and any
copies thereof.
7.

Agreement to Abide by Protective Order. Each Qualified Person, except for

the Parties (including the Parties’ officers or employees), the attorneys of the Parties, the
attorney’s staff, the Court and the Court’s staff, and any court reporter, and persons who
authored or the Confidential Material, shall be required to sign a “Confidentiality Agreement,”
attached hereto, if the Confidential Material is to be disclosed to such Qualified Person. The
original copy of each executed Confidentiality Agreement shall be maintained by the attorney
revealing the Confidential Material to such Qualified Person. Further, any attorney in
possession of an executed Confidentiality Agreement shall forward each executed
Confidentiality Agreement in his or her possession to opposing counsel within ten (10) days
following a written request for same, or as ordered by the Court.
8.

Use of Confidential Information. Except as may be otherwise required by

local rules of the Court, Confidential Material used in connection with any pleading, brief,
motion, hearing, or at trial in this action shall be filed under seal or submitted to the Court for
in camera inspection or as the parties may agree or the Court directs. In the event that counsel
for any party in this case determines to file with, or submit to, the Court any Confidential
Material under seal, such information shall be filed as required by the Court or Local Rules. All

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such materials so filed shall be maintained by the Clerk of the Court separate from the public
record in this action and shall be released only upon further order of the Court.
9.

Disputes Concerning Designation(s) of Confidential Material. Nothing

contained in this Protective Order is meant to prohibit a party from challenging the confidential
designation of a document through appropriate motion with the Court. A party objecting to the
designation of Confidential Material may, after making a good faith effort to resolve any such
objection, move on reasonable notice for an order vacating the designation. If such a motion is
filed, the designating party shall bear the burden of demonstrating the proprietary of the
designation. While such application is pending, the material in question shall be treated as
Confidential Material pursuant to the Protective Order.
10.

Return and/or Destruction of Confidential Material. After final termination

of all pending litigation relating to the above-captioned cause, whether by settlement or
otherwise, each party and its counsel in possession of any Confidential Material shall destroy
the documents or, if not already destroyed, return to opposing counsel all Confidential Materials
within thirty (30) days following a request made in writing; or as ordered by the Court. All
notes, memoranda, summaries or other documents referring, describing, or relating to the
documents, testimony, information or other materials designated as “Confidential” shall
be destroyed.

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IV.

MOTION TO STRIKE OR COMPEL RULE 35 EXAMINATION
As the Court had not published a written order after the hearing concerning the Motion to

Strike, (Doc. 50), and the Motion to Compel Rule 35 Examination, (Doc. 69), is substantially
related to the Motion to Strike, the Court shall address both matters here.
On December 18, 2023, the Court granted a motion to amend the scheduling order. (Doc.
43). In the joint proposed scheduling order, it was stated that the Plaintiffs have already disclosed
their experts. By agreement of the parties, Plaintiffs’ deadline to disclose experts was February
15, 2024. Seventy-seven days after the deadline to disclose had passed, the Plaintiffs disclosed
that they had retained Tim Kaver to conduct a vocational assessment of Mr. Canania.
The Defendants moved to strike Kaver. (Doc. 50). The Defendants pointed to Fed. R’s
Civ. Pro. 37(c)(1), 26(a)(2), and 26(e); arguing that “when a party fails to identify a witness as
required . . . the party is not allowed to use that witness to supply evidence . . . unless the failure
was substantially justified or is harmless.” (Doc. 50). The Defendants also noted that “[t]he
Seventh Circuit has stated that ‘the sanction of exclusion is automatic and mandatory unless the
sanction party can show that its violation . . . was either justified or harmless.’” (Doc. 50)
(quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
The Plaintiffs responded to the Defendants motion stating that the Defendants had not
reached out to the Plaintiffs prior to filing their motion to strike with the Court and argued that,
because Mr. Canania was on post-surgical restriction until April of this year, he “could not be
evaluated by a vocational specialist until he had been placed at maximum medical improvement
and given permanent restrictions by his surgeon.” (Doc. 54). The Plaintiffs presented evidence
that they forwarded Kaver’s report to the Defendants the day after they received it. The Plaintiffs
also offered Kaver for a deposition and stated that the Defendants were welcome to find a

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rebuttal witness.
While it was questionable why the Plaintiffs waited to disclose and agreed to an earlier
disclosure date when they wanted a vocational assessment, there was no indication that the
Plaintiffs acted in bad faith or willfully chose not to disclose. Mr. Canania could not be
accurately assessed until his condition had fully stabilized and the Plaintiffs had provided
Kaver’s report to the Defendants almost immediately. Additionally, the Plaintiffs offered Kaver
for a deposition and welcomed the Defendants to retain a rebuttal witness. The disclosure did
come seventy-seven days after the deadline had passed, but the discovery deadline had not
expired and the Defendants had until September to disclose their own expert witnesses. Though
unquestionably late, the Court concluded that allowing Kaver would not be prejudicial nor would
it constitute surprise nor was it likely to disrupt the trial. For all these reasons, the Court denied
the Defendants’ motion to strike.
Following the Court’s oral order denying the Defendants’ motion to strike, the
Defendants hired their own vocational expert, Jason Purinton. The Defendants wanted Purinton
to evaluate Mr. Canania’s condition and conduct his own vocational assessment. The Plaintiffs
refused. While the Plaintiffs were willing to allow Purinton as a rebuttal witness, make Kaver
available for deposition, and provide the Defendants with the information Kaver had gathered;
the Defendants still wished to conduct their own evaluation.
Rule 35(a) provides for physical or psychological examination by a licensed or certified
professional. Fed. R. Civ. P. 35(a). In the past, Rule 35(a) only allowed licensed physicians and
psychologists to conduct physical or psychological examinations. However, Rule 35 was
amended to expand the scope of professionals who could conduct said evaluations. The standard
for a Rule 35 examination is higher than relevance; there must be good cause for the examination

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to avoid litigants being subject to “needlessly duplicative, cumulative, and invasive”
examinations. In re Cook Med. Inc., 2017 U.S. Dist. LEXIS 83575, *6 (S.D. Ind. June 1, 2017).
To satisfy the good cause standard, a movant must show “that each condition as to which the
examination is sought is really and genuinely in controversy.” Schlagenhauf v. Holder, 379 U.S.
104, 118 (1964). While having the ability to obtain the information from alternative means is
relevant, Id., it is not dispositive.
The Plaintiffs opposed Purinton conducting his own evaluation. They argued that Rule 35
does not cover purely vocational assessments; but, even if it did, that Purinton was not suitably
credentialed. Additionally, the Plaintiffs argued that the Defendants had failed to show good
cause because the information that would be obtained by a Rule 35 examination could be
obtained from what the Plaintiffs had already provided or were willing to provide.
The Plaintiffs’ arguments are unconvincing.
First, vocational examinations are not verboten under Rule 35. The examination that the
Defendants propose would involve evaluating Mr. Canania’s physical and psychological
condition. The fact that this examination is meant to assess his vocational abilities does not
change the fact that the examination itself is physical and psychological in nature. The Court
heard evidence and concluded that Purinton was suitably credentialed. Therefore, by the plain
text of Rule 35, Purinton, as a credentialed professional, may perform a Rule 35 examination.
Second, while the bar for Rule 35 examinations is higher than relevance to avoid
unnecessary, duplicative, and invasive examinations; that is not a danger here. The cases that
Plaintiffs cite to are either distinguishable in their invasiveness or come from district courts in
other circuits. Purinton’s examination will largely involve filling out forms and ostensibly
involve some physical activity—none of which are invasive. The Defendants are not demanding

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Mr. Canania subject himself to long medical procedures or something similar—the Defendants
merely ask for five hours to fill out forms and demonstrate physical ability. The examination the
Defendants have proposed is leagues away from the kinds of unreasonable examinations that the
Plaintiffs have cited in their brief.
Third, the Plaintiffs argue that the information they have provided to the Defendants are
sufficient to preclude a Rule 35 examination, and, therefore, it would be unnecessarily
duplicative. Again, while alternative means to obtain the information is relevant to the analysis,
it is not dispositive. Purinton’s forms and tests are not owned by him, they are protected
intellectual property of a third party; because of their restricted use, it is likely that Purinton’s
exam will cover more ground than Kaver’s or have more nuance—making the information the
Plaintiffs would otherwise provide insufficient.
Furthermore, because neither Kaver nor Purinton are doctors, the nature of their
examinations and conclusions may vary wildly. Though both experts are credentialed, the Court
doubts that their respective fields have the same or similar standardized, uniform, and welldeveloped diagnostic practices as the fields of medicine and psychology. However, even if the
Plaintiffs provided Purinton with enough data to artificially construct an assessment, there are
still two major issues: that data has been gathered and filtered through the lens of the Plaintiffs’
expert—meaning Puritnon’s assessment is based entirely on the efficacy of Kaver’s
assessment—and it also opens Purinton and his assessment to impeachment because he did not
gather the information first-hand.
The Plaintiffs are correct that Rule 35 examinations have a strict good cause standard, but
Mr. Canania’s condition is not merely relevant; his condition is a core and central issue in this
case. As the Supreme Court has stated, a Rule 35 examination is entirely appropriate when the

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examination goes to questions that are “really and genuinely in controversy,” provided there is
good cause for the examination. Schlagenhauf v. Holder, 379 U.S. at 118.
The Plaintiffs have claimed, as supported by Kaver’s report, that Mr. Canania’s physical
condition following the collision prevents him from returning to work. No doubt, his alleged
inability to return to his chosen profession, the financial burden placed on changing professions,
and the cost differential between a new profession and his original one will be crucial in
evaluating damages stemming from the collision beyond the costs of property damage and
medical treatment. When a key issue in this case is whether one of the Plaintiffs can return to
work, it is difficult to think of a reason why his ability to return to work would not be really and
genuinely in controversy—the exact kind of controversy that a Rule 35 examination would be
appropriate for. Given Mr. Canania’s condition is a core and central issue in this case, one that is
really and genuinely at controversy and the examination the Defendants propose would not be
invasive, there is good cause to order the Rule 35 examination.
Previously, the Court denied the Defendants’ motion to strike Kaver after the Plaintiffs
retained him, seventy-seven days after the deadline to disclose had expired. In their response to
that motion, the Plaintiffs stated the Defendants would not be prejudiced by allowing them to
retain Kaver and they welcomed the Defendants to retain a rebuttal witness. While the Court
found that allowing Kaver would not be prejudicial, refusing the Defendants request for
independent information, providing the Defendants only with information that has come from an
adversarial examination, and opening up their rebuttal witness to impeachment would be
prejudicial. Doing so would provide the Plaintiffs with a windfall as a result of their late
disclosure, tipping the scales in the Plaintiffs’ favor. The Plaintiffs sought leave to retain an
untimely witness, now they must accept the reasonable consequences of that decision—they

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must take the bitter with the sweet.
The Plaintiffs have argued that, should the Court grant the motion to compel the Rule 35
examination—which it has—that the Court should require that examination be recorded and that
a third party, someone from the Plaintiffs’ legal team, should be present at the examination.
When the Court inquired why the Defendants’ examination should be recorded when the
Plaintiffs’ examination had not been, the Plaintiffs replied that the Defendants examination is
“adversarial,” and, therefore, the presence of either a third party or a videocamera was necessary.
This argument is unpersuasive.
The United States has an adversarial system—almost everything in a lawsuit is inherently
adversarial. The playing field should be equal between the parties, moreover, placing a third
party in the room for the examination would have the unintended effect of making that party a
witness. For these reasons, the Court denies the request to have a third-party present and denies
the request to videotape the examination. The Court has instructed the parties to convene and
come to an agreement on all other matters related to the examination.
V.

REMINDER TO LITIGATE IN GOOD FAITH
It is clear to the Court through the multiple disputes involved in this case that there is a

palpable friction between Plaintiffs’ counsel and counsel for the other parties. Given the
adversarial nature of a lawsuit, some friction is expected; each attorney has a duty to advocate
for the best interests of their client. However, when relations between counsellors deteriorate into
acrimony, they must be cautious to avoid crossing the thin line separating zealous advocacy from
obstructionism. When counsellors refuse to compromise, when their knee-jerk reaction is to deny
all requests from opposing counsel, and when unwillingness to see reason on even the minute
details requires the Court’s fastidious attention; everyone loses—the attorneys, the legal

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profession, the Court, and critically, their clients.
While there is no clear indication that any of the attorneys involved here have crossed
over into obstructionism, the Court reminds counsellors of their ongoing duty as members of the
legal profession to litigate in good faith and avoid the temptation to descend into obstructionism.
At the end of the last hearing, the Court tasked the parties with reaching an agreement
over the details around the Rule 35 examination. The Court trusts, having provided this
reminder, that the skilled counsellors here will be able to use their best professional judgment in
determining which disputes are important enough to warrant the Court’s attention and which
disputes can be settled between them without judicial intervention. The Court will always be
available to settle any and all disputes that arise, however, counsellors should be mindful that
unnecessarily involving the Court serves only to create costly delays that are not only a waste of
judicial resources but also cause their respective clients to incur unnecessary expense.
VI.

CONCLUSION
Being duly advised in the premises having fully considered the issues and arguments

raised, the Court GRANTS in part and DENIES in part the motion to quash, (Doc. 48),
GRANTS the motion for a protective order, (Doc. 64), EXTENDS the time for Olive Surgical to
produce those documents by thirty days from the entry of this order, and GRANTS the
motion for a rule 35 examination. (Doc. 69). Furthermore, attorneys for all involved are
reminded of their ongoing ethical obligation to avoid obstructionism and to litigate in good faith.
IT IS SO ORDERED.
DATED: August 28, 2024
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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