Maldonado et al v. Union Pacific Railroad Company et al

Filing 157

MEMORANDUM AND ORDER. The plaintiff shall appear in Florida for a Rule 35 neurological examination. The defendants shall pay the reasonable lodging and transportation expenses for plaintiff and his sponsor to attend the neurological examination in Florida. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 10/26/2011. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CESAR OBDULIO PAZ MALDONADO,
et al.,
Plaintiffs,
v.
UNION PACIFIC RAILROAD CO., et al.,
Defendants,

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Case No. 09-1187-EFM

MEMORANDUM AND ORDER

On February 25, 2011, the undersigned judge granted defendants’ motion for a Rule
35 neurological examination of plaintiff in Kansas City, Missouri with certain conditions
(Doc. Nos. 74 and 88). Thereafter, plaintiff made himself available for the IME in Kansas
City but defendants’ neurological expert refused to comply with the court’s conditions and
the examination was canceled. Plaintiff, a citizen of Honduras, returned to his native country
after that cancellation.
Questions concerning costs and plaintiff’s ability to appear in the United States
generated a second round of arguments concerning the Rule 35 neurological examination.
Asserting difficulty in returning to the United States, plaintiff argued that the examination
should be conducted in Honduras. Defendants argued that the examination should be

conducted in the United States because plaintiff commenced this action in the United States.
On May 4, 2011, the court ordered plaintiff to appear in the United States for the
neurological examination and directed the parties to submit a proposed order “setting forth
the conditions, date, and time, consistent with the rulings in this case.” (Doc. 146, p. 10).
The logistics of the examination raised additional issues and, at the request of counsel,
the court conducted a telephone conference on October 19, 2011 to address the location of
the examination in the United States and the payment of expenses. The arguments and
rulings are memorialized below.
With respect to the location of the examination, defendants have secured the services
of a neurological expert willing to conduct the examination in Miami, Florida under the
conditions imposed by the court.1 Plaintiff counters that his “sponsor” for purposes of
entering the United States is located in Wichita, Kansas, the city where this case was filed.
Because his expenses will be materially higher if required to travel to Miami, plaintiff argues
that defendants should be ordered to pay his lodging and travel expenses as well as the travel
expenses for his sponsor. Defendants argue that they should not be burdened with paying
additional expenses because of plaintiff’s immigration issues and need for a sponsor in order
to legally appear in the United States.

1

The court ordered that the neurological examination be videotaped, a condition
that defendants’ original expert asserted would be unprofessional and a violation of
testing protocols. However, the videotaping of a neurological examination in the context
of litigation is apparently standard procedure in Florida and Florida doctors are willing to
conduct the neurological examination under the conditions imposed by this court.
-2-

The court previously ruled that plaintiff was obligated to appear for examination in
the state of Kansas, the state in which he filed his lawsuit. (Doc. 74, p. 5). Neither party
presents any persuasive argument why the court should modify this ruling. Because
defendants selected an expert in Florida and seek permission to conduct the examination in
Florida, the court will require defendants to pay plaintiff’s lodging and transportation
expenses to Florida.2
The expenses of plaintiff’s sponsor presents a closer question. However, it appears
that a sponsor is required for plaintiff to legally enter the United States and the sponsor’s
assistance is necessary for plaintiff’s appearance in Florida. If the examination were
scheduled in Wichita, Kansas, the sponsor would not incur travel and lodging expenses.
Equally important, plaintiff previously made himself available for a neurological examination
in Kansas City. Under the circumstances, plaintiff should not be required to pay for the
added expense of conducting the examination in Florida. After considering the totality of
the circumstances, the court will require defendants to pay the reasonable lodging and travel
expenses of plaintiff’s sponsor to Florida.

IT IS THEREFORE ORDERED that plaintiff shall appear in Florida for a Rule 35
neurological examination. The parties shall confer concerning a mutually agreeable date and
submit a proposed order setting forth the conditions, date, and time, consistent with the
2

Plaintiff is responsible for paying his own lodging and travel expenses from
Honduras to the United States.
-3-

rulings in this case. The Florida examination is contingent upon defendants’ payment of the
travel and lodging expenses.
IT IS FURTHER ORDERED that defendants shall pay the reasonable lodging and
transportation expenses for plaintiff and his sponsor to attend the neurological examination
in Florida.3
IT IS SO ORDERED.
Dated at Wichita, Kansas this 26th day of October 2011.
S/ Karen M. Humphreys
_______________________
KAREN M. HUMPHREYS
United States Magistrate Judge

3

The possibility exists that the United States may refuse to issue a visa for plaintiff
to enter this country. The court will address that situation when and if it occurs.
Plaintiff will apparently seek legal entry on the border between Mexico and Texas.
The parties shall confer in good faith concerning a reasonable means of transportation and
cost from the point of entry to Florida. As previously noted, defendants are not
responsible for any costs until plaintiff enters the United States.
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