Heirsch v. Dias et al
Filing
26
Ruling denying 18 Motion to Compel without prejudice to the defendants re-urging the motion, supported with additional information describing the manner, conditions and scope of the examinations, if the parties are unable to reach an agreement. Signed by Magistrate Judge Stephen C. Riedlinger on 5/21/2013. (LLH) Modified on 5/22/2013 (LLH).
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SALLY HEIRSCH
CIVIL ACTION
VERSUS
NUMBER 12-419-BAJ-SCR
JOE DIAS, ET AL.
RULING ON MOTION TO COMPEL RULE 35 EXAMINATIONS
Before the court is the Defendants’ Motion to Compel Plaintiff
to Attend Rule 35 Independent Medical Examination [].
document number 18.
Record
The motion is opposed.1
Defendants seek an order requiring the plaintiff to appear for
an examinations by Dr. Rennie Culver, a psychiatrist, and Dr.
Richard Corales, a neurosurgeon, both of whom are located in
Metairie, Louisiana.
Only one aspect of the plaintiff’s opposition warrants any
discussion - the vagueness of the description of the examinations.2
Rule 35 provides that the court may order a party to appear
for an examination, and that the order “must specify the time,
place, manner, conditions, and scope of the examination, as well as
the person or persons who will perform it.”
Rule 35(a)(2)(B),
Fed.R.Civ.P.
Plaintiff complains that the proposed examinations do not
1
Record document number 19.
Record document number 22.
2
Defendants filed a reply.
Plaintiff’s other objections have been considered and none
have any merit.
indicate whether a physical examination will take place, and if so
what areas of the body will be examined, whether radiographs (Xrays)
will
be
taken,
whether
psychological
testing
will
be
performed and if so what testing, nor the anticipated length of the
examinations.
Defendants respond that they “are simply requesting that the
plaintiff
undergo
[the]
same
types
of
testing
employed
by
plaintiff’s treating physicians.”3
Defendants’ response is unpersuasive. The court does not know
what types of tests were performed by the plaintiff’s treating
physicians.
No medical records or deposition testimony have been
provided which would inform the court as to the manner, conditions
and scope of the examinations and testing done by the plaintiff’s
treating physicians.
The court cannot craft an order which
complies with Rule 35 based on the defendants’ vague description of
the manner, conditions, and scope of the proposed examinations.
Defendants have established good cause under Rule 35(a)(2)(A)
for an order requiring the plaintiff to submit to examinations by
Drs. Culver and Corales.
However, the defendants’ proposed order
fails to comply with Rule 35(a)(2)(B) because it is too vague. The
manner, conditions and scope of the examinations are not described
in any detail.
Nor does the order describe the specific tests to
be administered and the length of the examinations.
3
There is
Record document number 22, Defendants’ Reply Memorandum in
Support of Motion to Compel Rule 35 Independent Medical
Examination, p. 2.
2
little doubt, however, that with assistance from Drs. Culver and
Corales the defendants can comply with Rule 35.
Therefore, the
court encourages the parties to resolve this dispute amicably.
Accordingly, the Defendants’ Motion to Compel Plaintiff to
Attend Rule 35 Independent Medical Examination [] is denied,
without prejudice to the defendants re-urging the motion, supported
with additional information describing the manner, conditions and
scope of the examinations, if the parties are unable to reach an
agreement.
The parties shall each bear their respective costs incurred in
connection with this motion.
Baton Rouge, Louisiana, May 21, 2013.
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
3
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