Clark et al v. Wal-Mart Transportation L L C et al

Filing 30

MEMORANDUM RULING granting 17 Motion to Compel; granting 19 Motion to Compel; granting 19 Motion for Extension ( Defendants Expert Info/Reports due by 10/30/2014.) For the reasons stated above the defendants 17 Motion to Compel FCE is GRAN TED. Defendants 19 Motion to Compel INE is also GRANTED. These examinations are limited to one eight-hour day each. The parties are left to arrange all further details and to contact chambers should any difficulty arise. Defendants 19 Motion for Extension of Defendants Expert Reports Deadline is GRANTED. Expert reports are now due October 30, 2014. Signed by Magistrate Judge Kathleen Kay on 9/22/14. (crt,Kennedy, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
MISTY CLARK, ET AL

:

DOCKET NO. 2:13-cv-02417

VS.

:

JUDGE WALTER

WAL-MART TRANSPORTATION
LLC ET AL.

:

MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the Court are two motions to compel discovery filed by the defendants. The first
(Doc. 17) requests that the plaintiff Misty Clark be ordered to undergo a Functional Capacity
Examination (“FCE). The second (Doc. 19) asks that Mrs. Clark be ordered to undergo an
Independent Neuropsychological Examination (“INE”) and asks that the deadline for the
furnishing of expert reports be extended from September 29, 2014 to October 30, 2014. After
due consideration the motions are hereby GRANTED.
I. FACTS & PROCEDURAL HISTORY
On August 16, 2012, the plaintiffs claim Misty Clark was involved in a traffic accident
with a Freightliner Tractor driven by Donald Howard, an employee of Wal-Mart Transportation,
LLC. Mrs. Clark claims to have suffered numerous injuries from this accident. 1 Plaintiffs, Mrs.
Clark and her husband, seek damages for past and future medical expenses, lost wages, mental
anguish, loss of consortium, and loss of earning capacity.

1

Mrs. Clark claims to have sustained injuries to her back, neck, spine, shoulder, head, and left leg and complains of
continuing problems with lower back pain, neck pain, and frequently recurring headaches which, on at least one
occasion, caused nausea, vomiting, blurred vision, and dizziness. Doc. 17, att. 2, p. 9.
-1-

II. LAW & ANALYSIS
Defendants filed their motions pursuant to Federal Rule of Civil Procedure 35 which
allows a court to order a party to submit to a physical or mental examination when the party has
placed his or her physical or mental condition in controversy. This court has previously noted
that there are three requirements necessary to enable a court to order a Rule 35 exam: “(1) the
party's physical...condition must be in controversy; (2) the expert must be...[‘a suitably licensed
or certified examiner’]...; and (3) good cause must be shown.” Guillory v. Pellerin, 2:07-CV1683, 2009 WL 2231633 (W.D. La. July 23, 2009) (citing Acosta v. Tenneco Oil Company, 913
F.2d 205, 208 (5th Cir.1990)) (quoting FED.R.CIV.P. 35(a)(1)).
A. Guillory Considerations
1. Physical Condition Must Be in Controversy
Defendants suggest Mrs. Clark’s physical condition is clearly in controversy with respect
to both evaluations sought.

Plaintiffs concede that Mrs. Clark’s physical condition is in

controversy for purposes of the FCE but argue that the defendants’ motion to compel an INE
should be denied because the defendants have failed to show that the plaintiff’s mental condition
is at issue.
Responding to plaintiffs’ contention that an INE is unwarranted because Mrs. Clark is not
claiming to have a mental defect, defendants point out that they are not seeking to evaluate Mrs.
Clark’s mental condition but rather the test is necessary to evaluate whether the plaintiff’s
physical ability to return to work is significantly hindered by her persistent headaches. Plaintiffs
have alleged that Mrs. Clark has suffered severe injuries that render her incapable of performing
her duties at work. Doc. 1, p. 5. Plaintiffs further maintain that Mrs. Clark continues to suffer
from debilitating headaches for which she continues to be treated. Response to Interrogatory No.
6, Doc. 19, att. 2, p. 5.
-2-

We do not agree that Mrs. Clark’s mental condition must be in controversy before we can
order an INE given the complaints she has made. From the record it evident that plaintiffs relate
Mrs. Clark’s inability to return to work to her persistent headaches and they claim these
headaches are a direct consequence of her physical injuries.
We conclude that Mrs. Clark’s medical condition is in controversy for purposes of both
requests.
2. Expert Must be Licensed
From the record it is clear that both experts proposed to perform the examinations, Dr.
Kevin Greve (neuropsychologist) and Dr. Paul Fontana (occupational therapist), are duly
licensed medical professionals.

Moreover, submissions to this court indicate that they are

sufficiently familiar with the procedures requested by the defendants. See Doc. 28, att. 1, and
Doc. 27, att. 1.
3. Good Cause Must Exist
The “‘good cause’ element of Rule 35 requires a showing that the examination could
adduce specific facts relevant to the cause of action and necessary to the defendant's case.”
Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 391 (S.D. Tex. 2013) (citing Ragge v.
MCA/Universal Studios, 165 F.R.D. 605, 609 (C.D.Cal.1995)). The Supreme Court has stated
that “[a] plaintiff in a negligence action who asserts mental or physical injury . . . places that
mental or physical injury clearly in controversy and provides the defendant with good cause for
an examination to determine the existence and extent of such asserted injury.” Schlagenhauf v.
Holder, 379 U.S. 104 at 119 (1964) (citation omitted).
In response to the request for an FCE plaintiffs claim that the defendants have not
adequately shown that there is good cause because (1) Mrs. Clark has not has not had a

-3-

functional capacity exam prepared and does not intend to present that type of evidence at trial
and (2) her neurologist, Dr Fayez K. Shameih, has indicated an FCE may be premature. Doc. 17,
att 2, p. 5. Plaintiffs state that “a seminal factor in showing good cause is ‘whether the plaintiff
has retained his own experts, and whether he intends to prove his claims through their testimony
at trial…’” Doc. 21, p. 5 (quoting Ornelas, supra, at 392).
Ornelas, of course, is not binding on this court and neither do we agree that such a rigid
application of the rule is in order. Retention of a similar expert certainly could be a factor in the
court’s consideration but it is not the only one. In fact, at the end of the same paragraph from
which the quote above was taken, the Ornelas court reaffirmed Schlagenhauf when it stated:
“[n]otwithstanding all of the above generalities, the Schlagenhauf Court…made clear that ‘a
plaintiff in a negligence action who asserts mental or physical injury...provides the defendant
with good cause for an examination to determine the existence and extent of such asserted
injury.’” Ornelas at 392 (quoting 379 U.S. at 119) (emphasis added).
Here we are dealing with a negligence action brought by a plaintiff who has alleged
numerous physical injuries. As a consequence of those injuries she seeks damages for lost wages
and both present and future medical expenses. See Doc. 1, p. 5. These allegations make the
examinations requested relevant to the cause of action and thus any facts that might be gained
from allowing them will be necessary and essential to the defendant’s case. Accordingly this
court finds that good cause exists for both a functional capacity and a neuropsychological
examination.
B. Additional Rule 35 Considerations
Having concluded the defendants are entitled to the requested examinations, section
(a)(2)(B) of Rule 35 requires this court to specify the time, place, manner, conditions, and scope

-4-

of the examinations as well as the person or persons who will perform them. Plaintiffs have
asked that the examinations be video recorded, that the examinations be limited in time, and that
the defendants submit a list of proposed tests with an explanation of proposed relevance of the
test to be performed. Doc. 21, p. 6. Defendants have responded identically to these requests.
All object to videotaping, they agree to set a reasonable time limit for examination, namely two
eight-hour days (we are assuming one day for each expert), and they agree to provide a list of
tests to the court for consideration but object to the test information being given to plaintiffs in
advance of the examinations. Doc. 27 pp.4-5, Doc. 28, p. 5.
Plaintiffs have given no reason why these tests should be videotaped and we do not make
that a condition. The examinations will each be limited to one day per examination no more than
eight hours in one day. Plaintiffs have given no reason why the court should suspect any
untoward activity by the opposing counsel or the designated experts so we see no reason to
examine the tests that are proposed. We will reconsider this issue, however, if plaintiffs were to
give additional reasons why such limitations would be in order.
The remainder of the details will be left to the parties to resolve. Either party may
contact chambers for a telephone conference should any additional difficulties arise.
C. Request for Extension of Deadlines
The current deadline for the submission of expert reports is September 29, 2014. Given
this ruling that deadline is extended to October 30, 2014 as requested.
III. CONCLUSION
For the reasons stated above the defendants’ [17] Motion to Compel FCE is GRANTED.
Defendants’ [19] Motion to Compel INE is also GRANTED. These examinations are limited to

-5-

one eight-hour day each. The parties are left to arrange all further details and to contact
chambers should any difficulty arise.
Defendants’ [19] Motion for Extension of Defendants’ Expert Reports Deadline is
GRANTED. Expert reports are now due October 30, 2014.
THUS DONE AND SIGNED in Chambers this 22nd day of September, 2014.

-6-