Olsson v. Gross et al

Filing 49

MEMORANDUM AND ORDER denying 35 Motion for Reconsideration of 33 Order on Motion for Leave to File. Signed by Magistrate Judge Kenneth G. Gale on 6/23/2011. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KEITH OLSSON, by and through
MINDI OLSSON, guardian and
conservator for Keith Olsson,

)
)
)
)
Plaintiff,
)
)
v.
)
)
AARON GROSS and
)
THE SYGMA NETWORK, INC.,
)
)
Defendants.
)
______________________________ )

Case No. 10-2465-CM-KGG

MEMORANDUM AND ORDER
Presently before the Court is Plaintiff’s “Motion for Reconsideration of
Ruling Denying Request for Rule 35 Medical Examination” and supporting
memorandum. (Docs. 35, 36.) Therein, Plaintiff requests that the Court
reexamine its Memorandum and Order which, in part, denied Plaintiff’s request
for leave to name additional medical expert(s) relating to a head injury
Defendant Aaron Gross sustained as a child. The portion Plaintiff asks to have
reconsidered is this Court’s denial of his request for a Rule 35 examination of
Defendant Gross. For the reasons set forth below, Plaintiff’s motion to
reconsider (Doc. 35) is DENIED.

BACKGROUND
Plaintiff initially filed this matter in the District Court of Wyandotte
County, Kansas, on September 25, 2008, seeking damages for personal injuries
resulting from an automobile collision in which his vehicle was allegedly hit by
a truck driven by Defendant Gross, an employee of Defendant Sygma. Soon
thereafter, the action was removed by Defendants to the United States District
Court for the District for the District of Kansas, as Case No. 08-2567-CM
(hereinafter referred to as “the initial action”).
In Plaintiff’s underlying motion, he contends that production of the
medical history of individually-named Defendant Gross “was a point of
contention between the parties.” (Doc. 21, at 11.) He received a HIPAA
compliant authorization for Gross’s medical records on June 24, 2009 –
approximately one week before Plaintiff’s July 1, 2009, expert witness deadline
in the initial action. Although Plaintiff contends he has requested Gross’s
medical records from “multiple providers,” at the time of filing that motion, he
had received the documents from only one facility. (Doc. 21, at 11.)
In the Order at issue (Doc. 33), the Court granted Plaintiff’s motion for
leave to designate as experts two individuals who assisted with the Rule 26(a)
report from Plaintiff’s forensic epidemiologist (accident reconstruction expert).

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(See Doc. 20.) Also in that Order, the Court denied Plaintiff’s request for leave
to name additional medical expert(s) relating to a head injury Defendant Aaron
Gross sustained as a child as well as his request for a Rule 35 examination of
Defendant Gross. (Doc. 33, at 12-15.) The denial of a Rule 35 examination is
the subject of Plaintiff’s present motion.
DISCUSSION
Whether to grant or deny a motion for reconsideration is committed to
the Court’s discretion. Youell v. Grimes, 168 F. Supp. 2d 1233, 1235 (D. Kan.
2001). Pursuant to D. Kan. Rule 7.3, reconsider should be based on “(1) an
intervening change in controlling law; (2) the availability of new evidence; or
(3) the need to correct clear error or prevent manifest injustice.” See
also, Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th
Cir. 1992); Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan.
1994), aff'd, 43 F.3d 1484, 1994 WL 708220 (Table) (10th Cir. 1994).
Plaintiff now argues that reconsideration of this Court’s denial of his
request for a Rule 35 examination is appropriate because he “made no formal
request” for a Rule 35 examination in the underlying motion and, as such, the
issue “was not properly in front of the Court and not ripe for adjudication.”
(Doc. 36, at 2.) Given the circumstances, Plaintiff’s is requesting the correction
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of clear error/prevention of manifest injustice. See D. Kan. Rule 7.3. In the
underlying motion, however, Plaintiff specifically stated that because he
was unapprised of the contents of Defendant Gross’s
medical records at the time of initially disclosing
expert witnesses, he now has good cause to warrant a
re-disclosure of expert testimony on this issue. Further,
additional expert witnesses may be necessary to
discuss the nature and extent Defendant Gross’s
condition. Finally, the plaintiff should also be allowed
to conduct a Rule 35 examination of Defendant Gross
by an independent physician.
(Doc. 21, at 12.)
Defendant argues in response that, given the language in Plaintiff’s
underlying motion (supra), Plaintiff “placed his request [for the examination]
squarely before the Court . . . .” (Doc. 37, at 1.) Defendant continues that
[t]he ruling denying the request for a Rule 35
independent medical examination at issue does not
constitute clear error nor cause manifest injustice and
the Court’s Order should not be reconsidered. The
ruling is consistent with the Court’s finding that
plaintiff failed to establish good cause to modify the
Scheduling Order and disclose additional medical
experts on the issue of Gross’ childhood head injury.
Plaintiff seeks to get in through the back door that
which he is not permitted to bring through the front
door by way of Rule 26 expert testimony, with regard
to Gross’ childhood head injury. Therefore, for the
Court to have granted plaintiff’s request for a Rule 35
independent medical examination, when the Court
determined expert medical testimony will not be
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permitted on that very issue, would have resulted in a
wholly incongruous decision and would constitute
clear error and cause manifest injustice to defendants.
(Doc. 37, at 3. )
The Court agrees with Defendant’s assessment. Plaintiff’s underlying
motion unequivocally requested that he “should also be allowed to conduct a
Rule 35 examination of Defendant Gross by an independent physician.” (Doc.
21, at 12.) For the reasons discussed in its underlying Order (Doc. 33), the
Court was justified in denying that specific request. “A motion to reconsider is
not a second chance for the losing party to make its strongest case or to dress up
arguments that previously failed.” Voelkel, 846 F. Supp. at 1483. As such,
Plaintiff’s motion to reconsider (Doc. 36) is DENIED.1
IT IS SO ORDERED.
Dated at Wichita, Kansas this 23rd day of June, 2011.
S/ KENNETH G. GALE

KENNETH G. GALE
U.S. MAGISTRATE JUDGE

1

The Court is equally unconvinced by Plaintiff’s assertion that his position is lent
“credence” because his motion “did not identify the medical examiner nor ‘specify the
time, place, manner, conditions, and scope of the examination’” in contravention of
Fed.R.Civ.P. 35(a)(2). (Doc. 36, at 3-4.) As Defendant correctly asserts, the federal rule
requires this information to be in the Order for a Rule 35 examination, not the motion
requesting the exam.
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