Landry et al v. Farmland Mutual Ins. Company et al

Filing 62

ORDER granting 40 Motion to Compel Independent Medical Examination. The Court finds good cause to extend the deadline for Defendants to provide expert reports to 4/3/2019. All other deadlines remain unchanged. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 3/7/2019. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
NATALIE LANDRY, ET AL.

CIVIL ACTION

VERSUS
NO. 18-470-JWD-RLB
FARMLAND MUTUAL INSURANCE
COMPANY, ET AL.
ORDER
Before the Court is Defendants’ Motion to Compel Independent Medical Examination (R.
Doc. 40) filed on January 11, 2019. The motion is opposed. (R. Doc. 49). Defendants have filed
a Reply. (R. Doc. 56).
This action involves alleged injuries resulting from an automobile crash. (R. Doc. 1-2).
Non-expert discovery closed on November 13, 2018. (R. Doc. 15 at 1). The deadline for
defendants to provide expert reports is March 18, 2019, and the deadline to complete expert
discovery is April 19, 2019. (R. Doc. 35). Trial is set to commence on October 7, 2019. (R. Doc.
15 at 2).
On December 19, 2018, defense counsel scheduled independent medical examinations
(“IME”) for Natalie Landry and Christopher Deville (“Plaintiffs”), respectively, on January 22,
2019 and January 29, 2019. (R. Doc. 40-2). The IMEs were scheduled to take place with Dr.
Paul van Deventer at his office in Covington, Louisiana. Defendants assert that they requested
the IMEs after receiving Ms. Landry’s life care plan on December 11, 2018. (R. Doc. 40-1 at 2).1
Plaintiffs’ counsel objected to the IMEs because they were unilaterally scheduled, the
location of the IMEs would require each of the plaintiffs to drive over one hour, there are

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Defendants represent that they had not received the life care plan for Mr. Deville at the time the motion was filed.
(R. Doc. 40-1 at 4). Plaintiff’s expert report deadline expired after the filing of this motion on February 4, 2019. (R.
Doc. 35).

numerous appropriate doctors in Baton Rouge, Louisiana, and the request was not made before
the non-expert discovery deadline of November 13, 2018. (R. Doc. 40-3 at 1). Defense counsel
asked Plaintiff’s counsel to reconsider the objections, noting, among other things, that the travel
distance for Ms. Landry would be the same as to her own treating physician, that he would
recommend that Defendants reimburse mileage expenses for both plaintiffs, that reasonable
notice of the IMEs of over 30 days was provided, and that the expert discovery deadline had not
yet expired. (R. Doc. 40-4 at 1).
On January 11, 2019, Defendants filed the instant motion to obtain an order under Rule
35 requiring both plaintiffs to appear for a medical examination before Dr. van Deventer at his
office in Covington. (R. Doc. 40). Defendants seek an order requiring the examination to occur
prior to Defendants’ expert report deadline. (R. Doc. 40-1 at 6).
Federal Rule of Civil Procedure 35 provides that 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.” Fed. R. Civ. P. 35(a)(1). Such an order may be issued “only on motion for good
cause and on notice to all parties and the person to be examined” and “must specify the time,
place, manner, conditions, and scope of the examination, as well as the person or persons who
will perform it.” Fed. R. Civ. P. 35(a)(2). A plaintiff places his or her physical or mental
condition “in controversy” by pleading he or she has sustained a physical injury through the
negligence of the defendant. See Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964). “The
decision as to whether or not to order an independent medical examination under Rule 35(a) rests
in the court’s sound discretion.” Glaze v Bud's Boat Rental, Inc., No. 93-1334, 1993 WL 441890,
*1 (E.D. La. Oct. 21, 1993). Furthermore, “[a]lthough Rule 35 examinations may be ordered

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‘only on motion for good cause shown,’ and use of the rule to compel such examinations is not
unfettered, Rule 35(a) generally has been construed liberally in favor of granting discovery.”
Grossie v. Fla. Marine Transporters, Inc., No. 04-0699, 2006 WL 2547047, at *2 (W.D. La.
Aug. 31, 2006).
There is no dispute that there is good cause for Rule 35 examinations of both Plaintiffs
with an orthopedic surgeon, that Dr. van Deventer is qualified to conduct the examinations, and
that it would be a more economical use of the parties’ resources for both Plaintiffs to be
examined by the same physician. Plaintiffs also do not argue in their opposition that the motion
is untimely or that the timing of the notice was unreasonable. The sole dispute is whether
Plaintiffs should be required to travel to Covington (which falls outside of the geographic scope
of this district) for the examinations.
Generally, courts will only mandate that a plaintiff “appear for examination at the place
where the trial would be held—that is, at the venue selected initially by the plaintiff. This allows
the examining physician to be available conveniently for testimony.” Thomas v. W&T Offshore,
Inc., No. 16-14694, 2018 WL 501508, at *2 (E.D. La. Jan. 22, 2018) (quoting Baird v. Quality
Foods, Inc., 47 F.R.D. 212, 213 (E.D. La. 1969)). For an exception to be made to this general
rule, courts have held that “the burden is not on the defendant to demonstrate that a satisfactory
examination cannot be had a nearer locale to the plaintiff, but rather on the plaintiff to show that
traveling to the examination poses undue burden or hardship.” Thomas, 2018 WL 510508, at *2
(quoting Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 400 (S.D. Tex. 2013)).
Having considered the arguments and representations of the parties, the Court concludes
that Plaintiffs have not demonstrated that travelling to Covington for their examinations would
pose any undue burden or hardship. Foremost, Plaintiffs concede that Ms. Landry, who lives in

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Livingston, Louisiana, would not face any undue burden or hardship travelling to Covington. (R.
Doc. 50 at 5). Defendants represent that Ms. Landry must travel 26-40 miles (and 45 minutes) to
reach her treating physician’s office in Baton Rouge; whereas Ms. Landry must travel 49 miles
(and 48 minutes) to reach of the Dr. van Deventer’s office in Covington. (R. Doc. 40-1 at 5).
Plaintiffs do not dispute these distances or travel times.
Instead, Plaintiffs focus on the potential undue burden or hardship on Mr. Deville.
Plaintiffs assert that Mr. Deville resides in Oscar, Louisiana, and that he must travel 25 miles
(and 30 minutes) to Baton Rouge, compared with 91 miles (and 93 minutes) to Covington. (R.
Doc. 50 at 3). Plaintiffs assert that the 182 miles roundtrip to Covington, which would take over
three hours, is unduly burdensome, particularly given that Mr. Deville would have to pass
through Baton Rouge, where his treating physicians are located, and where more than 50
orthopedic surgeons are located. (R. Doc. 50 at 3-4). Defendants do not dispute these travel
distances and times. Instead, Defendants assert that Plaintiffs fail to establish that Mr. Deville
will face any undue burden or hardship by the single trip to Covington, considering he has made
25 trips to treating physicians in Baton Rouge and 25 trips to undergo physical therapy in
Zachary, for a total of approximately 76 hours and 3,600 miles in travel for treatment for his
alleged injuries. (R. Doc. 56 at 2-3).
While the Court acknowledges that the distance of 91 miles might cause some
inconvenience to Mr. Deville, the record does not indicate that he will face any undue burden or
hardship by travelling to Covington. On the contrary, the record indicates that both plaintiffs are
physically able to travel considerable distances by car, and have done so on multiple occasions to
treat with their own physicians. Furthermore, any financial hardship caused by the travel is moot

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in light of Defendants’ offer to reimburse travel expenses (which the Court will require
Defendants to do).
The Court is also satisfied that the purpose for the general rule—that the examining
physician be located in the district where the trial is to be held to allow the physician to be
conveniently available for testimony—is satisfied even though Covington falls outside of the
geographic scope of this district. Because his office is within 100 miles of Baton Rouge, Dr.
Van Deventer will be subject to subpoenas for trials, hearings, depositions, and the production of
documents in Baton Rouge. See Fed. R. Civ. P. 45(c).
Plaintiffs overstate the need for the IME to take place within the geographic scope of the
district, particularly considering the relatively small size of the Middle District of Louisiana.
Covington is approximately 30 miles outside of the Middle District of Louisiana with almost the
entirety of the trip on Interstate 12. The relevant point is that Plaintiffs have not demonstrated
any undue burden or hardship will be caused by their respective 49 mile and 91 miles trips to Dr.
van Deventer’s office for a Rule 35 examination. Given the distances involved, Defendants’
agreement to reimburse travel costs, and the lack of any demonstrated undue burden or hardship,
the Court finds it appropriate to order the examinations to take place at Dr. van Deventer’s office
in Covington, even though that location is outside of the geographic scope of this district. This
decision is consistent with other decisions within this circuit. See Thomas, 2018 WL 501508, at
*2 (ordering examination to occur at a location 85 miles from plaintiff’s home and within
district); Ornelas, 292 F.R.D. at 400 (ordering examination to occur at a location 100 miles from
plaintiff’s home and within district); Gant v. Helix Energy Sols. Grp., No. 07-0618, 2007 WL
2316526, at *2 (W.D. La. Aug. 9, 2007) (ordering examination to occur at a location 45 miles
from plaintiff’s home even though location was outside of district); In re Bordelon Marine, Inc.,

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No. 11-1473, 2012 WL 1902576 (E.D. La. May 25, 2012) (denying motion to compel
examination at a location 214 miles from claimant’s home even though location was within
district); Rainey v. Wal-Mart Stores, Inc., 139 F.R.D. 94 (W.D. La. 1991) (denying motion to
compel examination at a location 270 miles from the plaintiff’s home and outside of district).
Based on the foregoing,
IT IS ORDERED that Defendants’ Motion for Examination of Plaintiff (R. Doc. 40) is
GRANTED. Plaintiffs’ examinations shall take place in Dr. Paul van Deventer’s office in
Covington, Louisiana within 14 days of the date of this Order, or as otherwise agreed upon by
the parties. The parties are to meet-and-confer regarding appropriate dates and times of the
examinations. Defendants shall reimburse the applicable mileage rates for witnesses in this
district. The examination shall be in a manner consistent with generally accepted orthopedic
methods of evaluation and testing. Given the delays caused by the instant motion, the Court
finds good cause to extend the deadline for Defendants to provide expert reports to April 3,
2019. All other deadlines remain unchanged.
Signed in Baton Rouge, Louisiana, on March 7, 2019.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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