Boatner v. Excel Group, Inc. et al

Filing 51

RULING granting 46 Motion for Discovery. Signed by Magistrate Judge Stephen C. Riedlinger on 08/02/2012. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CHADWICK BOATNER
CIVIL ACTION
VERSUS
NUMBER 11-409-BAJ-SCR
ABC INSURANCE COMPANY, ET AL

consolidated with
CHADWICK BOATNER
CIVIL ACTION
VERSUS
NUMBER 11-592-BAJ-SCR
ABC INSURANCE COMPANY, ET AL
RULING ON MOTION FOR RULE 35 EXAMINATIONS
Before the court is defendant Shintech Louisiana, L.L.C.’s
Motion for Rule 35 Examinations.

Record document number 46.

The

motion is opposed.1
Defendant filed this motion to compel the plaintiff to attend
independent medical examinations by a neurologist, Dr. Donald
Adams, and a clinical psychologist with a specialty designation in
neuropsychology, Dr. Kevin Greve.

Defendant argued that it is

entitled to an order for the Rule 35, Fed.R.Civ.P., examinations
because: (1) the plaintiff claims he sustained a brain injury as a
result of the

1

alleged incident on May 19, 2010, which places his

Record document number 47.
Defendant
memorandum. Record document number 50.

filed

a

reply

mental condition at issue; and, (2) the plaintiff has retained
experts in these same fields and has provided the report of Dr.
Roberta A. Bell, Ph.D., a neuropsychologist, which incorporates an
examination and report by a neurologist, Dr. Ralph B. Lilly.2
Rule 35, provides in relevant part, as follows:
(a) Order for an Examination.
(1) In General. The court where the action is
pending may order a party whose mental or physical
condition--including blood group--is in controversy
to submit to a physical or mental examination by a
suitably licensed or certified examiner. The court
has the same authority to order a party to produce
for examination a person who is in its custody or
under its legal control.
(2) Motion and Notice; Contents of the Order. The
order:
(A)

may be made only on motion for good cause
and on notice to all parties and the
person to be examined; and

(B)

must specify the time, place, manner,
conditions, and scope of the examination,
as well as the person or persons who will
perform it.

Plaintiff did not dispute that his mental condition is at
issue, or that he intends to rely on expert testimony from the same
types

of

experts.

Plaintiff’s

only

objection

is

that

the

defendant’s motion is untimely because it conflicts with the April
30, 2012 fact discovery deadline set in the Amended Scheduling

2

Record document number 47-2, exhibit 2. Defendant stated
that only a copy of Bell’s report was provided in accordance with
the scheduling order.
2

Order.3

According to the plaintiff, the Rule 35 examinations the

defendant seeks to compel are discovery tools used to gather
factual information and therefore are subject to the April 30
deadline.
Plaintiff’s argument is unpersuasive.

The examinations the

defendant is attempting to schedule are within the scope of expert
discovery and fall within the deadline set in the scheduling order
for this purpose.

Defendant’s designated experts, Drs. Adams and

Greve, have obviously been retained and specially employed to
present evidence at trial under Rule 702.4

Defendant’s request for

the plaintiff to undergo examination by these experts is obviously
for the purpose of them

- the experts - to obtain information

needed for them to form their expert opinions.

These examinations

are expert “discovery,” i.e. discovery conducted by the experts
themselves.

Therefore, the defendant’s Rule 35 request is not

untimely.
Upon the defendant’s issuance of a notice which complies with
Rule 35(a)(2)(B), Fed.R.Civ.P., the plaintiff shall appear for the
neurological

evaluation

by

Dr.

Donald

Adams,

and

the

neuropsychological evaluation by Dr. Kevin Greve.
Accordingly, the Motion for Rule 35 Examinations filed by

3

Record document number 36, item A.

4

Record document number 46-2, exhibit B.
3

defendant Shintech Louisiana, L.L.C. is granted.

Defendant may

request an extension of time to produce the reports from Dr. Donald
Adams and Dr. Kevin Greve if the Rule 35 examinations cannot
reasonably be conducted in time for them to meet the August 13,
2012 deadline to produce their expert reports.
Baton Rouge, Louisiana, August 2, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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