McConnell v. Hirschbach Motor Lines, Inc. et al

Filing 37

RULING on 35 Motion to Compel Independent Medical Examinations and Vocational Rehabilitation Evaluations is granted, in part, as stated, and denied insofar as the defts sought reimbursement of "no-show" fee charged by Dr. Messina. Signed by Magistrate Judge Stephen C. Riedlinger on 1/9/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ROBERT G. McCONNELL
CIVIL ACTION
VERSUS
NUMBER 11-153–BAJ-SCR
HIRSCHBACH MOTOR LINES, INC.,
ET AL
consolidated with
FREDDIE LITTLE
CIVIL ACTION
VERSUS
NUMBER 11-433-BAJ-SCR
HIRSCHBACH MOTOR LINES, INC.,
ET AL
RULING ON MOTION TO COMPEL MEDICAL EXAMINATION
Before

the

court

is

the

defendants’

Motion

to

Compel

Independent Medical Examinations and Vocational Rehabilitation
Evaluations.

Record document number 35.

No opposition has been

filed.
Defendants

seek

to

compel

the

plaintiffs

examinations pursuant to Rule 35, Fed.R.Civ.P.
counsel,

plaintiff

McConnell

was

previously

to

appear

for

By agreement of
scheduled

for

an

orthopedic evaluation on December 1, 2011 by Dr. Larry Messina in
Baton Rouge, Louisiana.

Without giving advance notice, or an

explanation later, he failed to appear.

Defendants were charged

a $500 “no-show” fee by the doctor, which they now seek to recover
from the plaintiff.

At a conference between counsel thereafter,

counsel for the plaintiffs advised that he could not assure

defendants’ counsel that plaintiff McConnell would attend any
rescheduled examination or that plaintiff Freddie Little would
appear for an initial examination.

This motion followed.

Neither plaintiff has filed any opposition or other response
to

this

motion.

complaints

It

that

is

both

conditions in issue.

apparent
plaintiffs

from
have

the

allegations

placed

their

in

the

physical

Therefore, both are subject to examinations

pursuant to Rule 35.
As to the $500 fee charged by the Dr. Messina, this fee is
apparently matter of contract between the defendants and Dr.
Messina. Defendants have not shown that plaintiff McConnell agreed
to pay this fee or any part of it, whether or not the plaintiff
appeared for the evaluation.
shown

that

the

fee

is

Moreover, the defendants have not

reasonable.

See

Rule

26(b)(4)(E),

Fed.R.Civ.P.
Accordingly, the defendants’s

Motion to Compel Independent

Medical Examinations and Vocational Rehabilitation Evaluations is
granted, in part.

Upon reasonable notice of not less than 14

calendar days, provided through counsel for the plaintiffs, the
plaintiffs shall appear for medical examinations by Dr. Larry
Messina and/or Dr. Kyle C. Girod, and for vocational rehabilitation
examinations by Michael S. Frenzel and/or Thomas J. Meunier, at
their respective offices in Baton Rouge, Louisiana.
denied

insofar

as

the

defendants

2

sought

The motion is

reimbursement

from

plaintiff McConnell of the “no-show” fee charged by Dr. Messina.
Failure to appear for these examinations may result in the
imposition of sanctions, including dismissal of the complaint,
striking the claim for recovery of medical expenses and other
medical-related

damages,

barring

the

introduction

of

medical

evidence, or other appropriate sanctions.
Baton Rouge, Louisiana, January 9, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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