Marmelshtein et al v. Southfield, City of et al

Filing 146

ORDER granting in part and denying in part 119 Motion to Compel- Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Leonid Marmelshtein and
Arlene Marmelshtein,
Plaintiffs,
vs.
City of Southfield, Sgt.
Lask, Police Officer Jeffrey
Jagielski, and Sgt. Morris,

Civil Action No. 07-15063
District Judge Julian Abele Cook, Jr.
Magistrate Judge Mona K. Majzoub

Defendants.
_____________________________/
ORDER
Plaintiffs have filed this 42 U.S.C. § 1983 case alleging that the individual defendants
violated their Fourth Amendment rights when the individual defendants allegedly entered their home
without announcing their presence and when they allegedly used excessive force in subduing
Plaintiffs. Plaintiffs claim that the City of Southfield is liable for its officers’ actions. After an
initial round of summary judgment motions and an appeal to the Sixth Circuit, three claims remain:
excessive force claims against Defendants Jagielski and Lask; a knock-and-announce claim against
Defendant Jagielski; and a municipal liability claim against the City of Southfield.
Now before the Court is Defendants’ motion to compel independent medical examinations
(“IMEs”) of Plaintiffs. (Dkt. 119.) The Court has been referred this motion pursuant to 28 U.S.C.
§ 636(b)(1)(A). (Dkt. 120.) The Court has reviewed the pleadings, dispenses with a hearing, and

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issues this order.1
Defendants have moved to compel the IME of Plaintiffs. Plaintiffs do not argue that
Defendants are entitled to an IME, but they do seek to impose conditions upon the IME.
On October 21, 2011 Plaintiffs and Defendants corresponded about the IMEs. (Defs.’ Mot.,
Ex. F.) In that correspondence, Plaintiffs’ counsel expressed a willingness to “consider” the IME,
but wanted to know certain information about the examinations: when they would take place, who
would conduct the examinations, the terms of the examinations, and whether a Russian translator
would be permitted. (Id.)
On October 31, 2011 Defendants noticed IMEs for both Mr. and Mrs. Marmelshtein to take
place on November 28, 2011, in Troy, Michigan. (Defs.’ Mot., Ex. G.) Dr. Calmeze H. Dudley,
M.D., was scheduled to conduct the IMEs. (Id.)
On November 3, 2011 Plaintiffs sent Defendants an email. (Defs.’ Mot, Ex. H.) Plaintiffs
informed Defendants that an order was required for an IME, but that they would be willing to agree
to Defendants’ request if Defendants agreed to certain conditions. (Id.) Plaintiffs requested the use
of a previous translator, that the parties share the costs of that translator, that Plaintiffs’ counsel be
present for both Mr. and Mrs. Marmelshstein’s interviews, and that the interviews be recorded, with
the parties again sharing the costs of a videographer. (Id.) Defendants responded that they would
agree to the translator, but that they had to review the other requests with Dr. Dudley. (Pls.’ Resp.,
Ex. 4.)
On November 16, 2011 Plaintiffs emailed Defendants. (Defs. Mot., Ex. I.) Plaintiffs

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The Court dispenses with a hearing pursuant to Eastern District of Michigan Local Rule
7.1(f)(2).
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confirmed that the parties had agreed upon a translator. (Id.) Plaintiffs also stated, for the first time,
that Mr. Marmelshtein’s condition “has deteriorated and [he] is unlikely to be willing and/or able
to leave his house.” (Id.) Plaintiffs then suggested that Defendants arrange for the IME at Mr.
Marmelshtein’s home. (Id.)
On November 22, 2011 Plaintiffs sent Defendants a message stating that Mrs. Marmelshtein
would be at Dr. Dudley’s office at the agreed upon date, but that one of her attorneys would
accompany her. (Defs.’ Mot., Ex. J.) Defendants state that they then withdrew their consent for the
examination because they did not agree to have Plaintiffs’ counsel present. (Defs.’ Mot. at 2.)
Defendants state that they incurred a late cancellation fee. (Defs.’ Mot., Ex. K.)
Rule 35 provides that a court “may order a party whose mental or physical condition . . . 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). “The order: (A) may be made only on motion for good cause
shown 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.” Fed.R.Civ.P. 35(a)(2)(A) and (B).
“Rule 35(a) is silent on the question of whether a recording of the examination or observers
should be allowed.” Zantello v. Shelby Township, 06-10745, 2007 WL 737723, at *2 (E.D.Mich.
Mar. 7, 2007) (Majzoub, Mag. J.) Despite that silence, “the majority of federal courts decline to
allow either recording or an observer, absent a showing of a special need or good reason.” Lahar
v. Oakland County, 05-72920, 2006 WL 2269340, at *8 (E.D.Mich. Aug. 8, 2006)(Roberts, J.) “The
party seeking to record or videotape an examination bears the burden of showing good cause for the
request.” Paris v. Murray, 10-108472011 WL 806588, at *1 (E.D.Mich. Mar. 2, 2011) (Majzoub,

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Mag. J.) (citation omitted).
In this district, courts have recognized that “special need” or “good reason” can be shown
when bias exists or when a party is incompetent. See Zantello v. Shelby Township, 06-10745, 2007
WL 737723, at *2 (E.D.Mich. Mar. 7, 2007) (Majzoub, Mag. J.) (rejecting the plaintiff’s request for
a recording or an observer and noting that the plaintiff had made no allegations “that the physician
may be biased or that for some other reason his report of the examination would be suspect.”). See
also Ardt ex rel. Parker v. Allstate Ins. Co., 09-14247, 2011 WL 768294, at *2 (E.D.Mich. Feb. 28,
2011)(Battani, J.) (finding a special need for a third-party observer of a mental examination when
the plaintiff was “adjudged legally incompetent” and was “under the care of a court-appointed
[g]uardian ever since[.]”) The Ardt court further noted that the plaintiff there suffered from “frequent
behavioral outbursts, [had] limited speech capabilities[,] and [had] lived in a rehabilitation center
for over a decade.” Id. The court permitted an observer because that observer calmed the plaintiff.
Id.
Here, Plaintiffs do not dispute that their mental condition is in controversy or that Defendants
have good cause to have Plaintiffs submit to mental examinations. (Pls.’ Resp. at 5.) But Plaintiffs
request conditions on the examination. (Id.) They request (1) that Mr. Marmelshtein’s examination
occur in his own home, with the assistance of a translator and the unobtrusive presence of his
counsel; (2) that Mrs. Marmelshtein’s examination occur with the presence of her counsel; and (or
in the alternative to counsel being present), (3) a discrete and unobtrusive video recording of the
examinations be allowed. (Id. at 5-6.)
Plaintiffs state that Mr. Marmelshtein suffers from extreme emotional and mental trauma as
a direct result of Defendants’ unlawful acts. (Pls.’ Resp. at 8.) Plaintiffs further state that Mr.

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Marmelshtein’s PTSD, depression, and fear of leaving his home has “recently taken a turn for the
worse.” (Id.) They represent that Mr. Marmelshtein was hospitalized from December 12, 2011
through December 27, 2011, “during which time his treating doctors sought probate court
intervention, due to his extreme paranoia and ‘major depression with psychosis,’ which made
treatment impossible without a court order.” (Id.) Plaintiffs also state that “Mr. Marmelshtein’s
health has deteriorated so greatly that [] Mrs. Marmelshtein[] is in the process of gaining legal
guardianship of [him.]” (Id. at 10.) They argue that, “because both Plaintiffs are in fragile positions,
and because a [defense medical examination] is adversarial in nature, the will of both Plaintiffs
could easily be overtaken during an evaluation.” (Pls.’ Resp. at 10.) Plaintiffs therefore request that
their counsel be present during the examinations. (Id.)
Although Plaintiffs have attached records showing that Mrs. Marmelshtein has petitioned
to have the court declare Mr. Marmelshtein legally incapacitated, Plaintiffs have not submitted
documentation that he has actually be deemed legally incapacitated. That absence, coupled with the
fact that Plaintiffs first mentioned that Mr. Marmelshtein could not leave his home on November
16, 2011, supports a finding that IMEs must be carried out in the normal fashion.
Plaintiffs also assert that Dr. Dudley has a “history of ignoring crucial facts when reaching
expert conclusions.” (Pls.’ Resp. at 10.) Plaintiffs cite Aldahe v. Matson Navigation Co., Inc., 0611125, 2008 WL 659797, at *4 (E.D.Mich. Mar. 11, 2008) (Cleland, J.), in support of that
proposition. But the Court disagrees with Plaintiffs about the Aldahe court’s characterization of Dr.
Dudley’s expert testimony. The Aldahe court noted that Dr. Dudley may have had a “lack of factual
underpinning” in his conclusion, but the court specifically stated that that lack would not justify
striking Dr. Dudley’s testimony. Id. Having reviewed the opinion, the Court finds that it does not

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support Plaintiffs’ argument that Dr. Dudley is so biased. The Court certainly is not persuaded by
Plaintiffs’ statement that “Dr. Dudley has a known history of ignoring crucial facts that could change
his conclusions[.]” (Id. at 11.)
The Court further finds that Plaintiffs’ reliance upon Aldahe is misplaced–leading their
attempt to discredit Dr. Dudley to fail. For these reasons, the Court finds that the IMEs must take
place as laid out below.
Within fifteen days of this order, the parties are to file a stipulated order for the day and time
of the IMEs to take place within thirty days of this order. The IMEs will take place at Dr. Dudley’s
office. Plaintiffs’ counsel will not be allowed in the room while Dr. Dudley is examining Plaintiffs.
And neither party will record the IMEs. The parties have already resolved the translator issue.
Defendants will pay the cancellation fee for Mrs. Marshelstein’s cancelled examination because
Defendants did not file a motion and did unilaterally notice the IMEs. Plaintiffs shall bear the cost
of the translator. No others award of fees to either party is warranted.
SO ORDERED.
NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days
from the date of this Order within which to file any written appeal to the District Judge as may be
permissible under 28 U.S.C. § 636(b)(1).

Dated: 3/5/12

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

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PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Counsel of Record on this date.
Dated: March 5, 2012

s/ Lisa C. Bartlett
Case Manager

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