Gilley et al v. Lowes Home Centers L L C

Filing 43

MEMORANDUM ORDER granting 36 Motion to Compel Physical Examination. Plaintiff, Jimmy Gilley, shall appear before Dr. Douglas Brown on 4/3/15 for an examination. IT IS FURTHER ORDERED that Defendant's deadline for delivering expert reports to Plaintiff is extended to 4/10/15 and the deadline for taking Dr. Brown's deposition is extended to 4/20/15. Signed by Magistrate Judge Karen L Hayes on 3/23/15. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JIMMY GILLEY, ET AL

CIVIL ACTION NO. 3:14CV667

VERSUS

JUDGE ROBERT G. JAMES

LOWE’S HOME CENTERS, LLC

MAGISTRATE JUDGE HAYES

MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, is a
“Motion to Compel Physical Examination,” [doc. # 36-1], filed by Defendant Lowe’s Home
Centers, LLC. Plaintiff Jimmy Gilley opposes the Motion. [doc. # 39]. For reasons assigned
below, the Motion is GRANTED.
Background
Plaintiffs Jimmy and Patricia Gilley, husband and wife, filed suit against Defendant
Lowe’s Home Centers, LLC on February 21, 2014. [doc. # 1-1]. Plaintiff Jimmy Gilley alleges
that Defendant, through its negligence, caused him to fall from a patio stool and suffer severe
injuries to his right shoulder and left knee. Id. Plaintiff claims that he is entitled to
reimbursement for prior medical expenses and recovery for the following damages: “Past,
present and future pain, suffering, disability, mental anguish, inconvenience, embarrassment and
loss of enjoyment of life.” Id. at 2-3.
Defendant “contends that Mr. Gilley’s injuries and treatment were not caused or
necessitated by the subject accident . . . .” [doc. # 36-2, p. 2]. To support its contention, it asked
Plaintiff to submit to an independent medical examination (“IME”) and allow Dr. Douglas
Brown to evaluate him and opine on the cause and extent of Plaintiff’s injuries, the necessity of
both past and future medical treatment, and whether Plaintiff is disabled due to the incident in

question. [doc. #s 36-2, p. 2; 41, p. 2]. However, Plaintiff’s counsel emailed Defendant’s
counsel on March 2, 2015, and informed Defendant that Plaintiff would not submit to an IME
unless the Court ordered him to. [doc. #36-3, p. 8]. As a result, Defendants filed the instant
Motion to Compel on March 12, 2015, and asked the Court, pursuant to Federal Rule of Civil
Procedure 35, to compel Plaintiff to submit to the requested IME. [doc. # 36-1].
Law and Analysis
Federal Rule of Civil Procedure 35(a) provides, “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
order “may be made only on motion for good cause and on notice to all parties and the person to
be examined . . . .” FED . R. CIV . P. 35(a)(2)(A). Generally, courts liberally construe the Rule in
favor of granting discovery. See McClanahan v. Transocean Offshore Intern. Ventures Ltd.,
2006 WL 2989243, at *2 (W.D. La. Oct. 19, 2006) (citing Grossie v. Florida Marine
Transporters, Inc., 2006 WL 2547047, at *2 (W.D. La. Aug. 31, 2006)).
Here, Plaintiff does not argue that his medical condition is not in controversy or that
Defendant lacks good cause for requesting the IME; rather, Plaintiff argues that Defendant
waived its right to request an IME when it failed to identify Dr. Brown as an expert by the
December 26, 2014 deadline set forth in the Court’s scheduling order. [doc. # 39, p. 1].
Plaintiff also contends, ostensibly, that Defendant’s request was untimely because “Defendant
waited until March, 2015, to attempt to schedule [the IME].” Id.
Plaintiff’s arguments are unfounded. As to the former, Plaintiff is correct that the
deadline for identifying experts was December 26, 2014. [doc. # 9, p. 4]. However, Defendant

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timely notified Plaintiff that it intended to hire a physician to conduct an IME on December 16,
2014. [doc. # 41-1, p. 3]. Although Defendant did not identify the expert by name, it did put
Plaintiff on notice of its intention. Moreover, Plaintiff does not claim that Defendant’s failure to
specify the particular expert prejudiced him in any way. Accordingly, Defendant did not waive
its right to obtain an IME.
Turning to the latter argument, on December 15, 2014, the undersigned extended the
February 5, 2015 deadline for completing discovery and filing motions to compel to March 31,
2015. [doc. # 18]. In that respect, Plaintiff’s counsel’s email to Defendant’s counsel
demonstrates that Defendant attempted to schedule an IME at least as early as March 2, 2015,
well before the deadline for completing discovery. [doc. # 36-3, p. 8]. In addition, Defendant
filed the instant Motion to Compel on March 12, 2015, well before the same deadline for filing
motions to compel. [doc. # 36-1]. Clearly, Defendant’s initial IME request and the instant
Motion to Compel were timely.
Conclusion
For these reasons, IT IS ORDERED that Defendant’s “Motion to Compel Physical
Examination,” [doc. # 36-1], is GRANTED and that Plaintiff Jimmy Gilley shall appear before
Dr. Douglas Brown at 312 Grammont St., Suite 302, Monroe, Louisiana, at 9:00 a.m. on April 3,
2015 (unless counsel mutually agree on an alternative date and/or time). The examination shall
include only questioning, testing, and examining necessary to reach an opinion on the cause and
extent of Plaintiff’s alleged injuries, the necessity of past and future medical treatment, and
whether Plaintiff is disabled as a result of the incident in question.
IT IS FURTHER ORDERED that Defendant’s deadline for delivering expert reports to

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Plaintiff is extended to April 10, 2015, and the deadline for taking Dr. Brown’s deposition is
extended to April 20, 2015.
In Chambers, Monroe, Louisiana, this 23rd day of March, 2015.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

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