Bieser v. J.E. Phillips & Sons Incorporated

Filing 30

MEMORANDUM AND ORDER re: 17 MOTION to Compel Rule 35 IME filed by Defendant J.E. Phillips & Sons Incorporated motion is DENIED. Signed by District Judge John A. Ross on 4/15/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JERRY BIESER,
Plaintiff,
v.
J.E. PHILLIPS & SONS, INC.,
Defendant.

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No. 4:12-CV-386-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Rule 35 Motion to Compel Plaintiff to
Submit to an Independent Psychological/Psychiatric Examination. [ECF No. 17] Defendant
requests that Plaintiff undergo a psychiatric examination by John W. Thompson, Jr., M.D., with
psychological testing by Gina Manguno-Mire, PhD, on May 1, 2013 at their offices in New
Orleans, Louisiana. Plaintiff objects on the basis of undue hardship. (Doc. Nos. 20, 21) The
motion is fully briefed and ready for disposition. For the following reasons, the motion will be
denied.
Background
In this personal injury action, Plaintiff seeks compensation for injuries he suffered in a
collision between Defendant’s tractor-trailer and the Missouri Department of Transportation
(MODOT) vehicle he was operating. Plaintiff claims physical injuries and post-traumatic stress
disorder (PTSD) as a result of the accident, which render him permanently and totally disabled.
Discussion
Under Federal Rule of Civil Procedure 35, 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). Rule 35 gives the court broad discretion
regarding the terms and conditions of the examination. Blount v. Wake Elec. Membership Corp.,
162 F.R.D. 102, 107 (E.D. N.C. 1993) (citing 8C. Wright & A. Miller, Federal Practice and
Procedure, § 2234 (1970)). Nevertheless, most courts require the plaintiff to submit to an
examination by a physician chosen by the defendant if it is held in the venue where the case will
be tried. See e.g., Blount, 162 F.R.D. at 107 (“most courts require the plaintiff to submit to an
examination by a physician chosen by the defendant if it is held in the venue where the plaintiff
chose to file the action”); Rainey v. Wal-Mart Stores, Inc., 139 F.R.D. 94, 5, (N.D. Tex. 1991)
(no basis shown for requiring plaintiff to travel 270 miles one way to be examined by physician
of defendant’s choosing in another district); Landry v. Green Bay & Western R.R. Co., 121
F.R.D. 400, 401 (E.D. Wis. 1988) (plaintiff compelled to undergo orthopedic evaluation in city
where case would be tried).
If the examining party moves for an examination outside of the forum district, the party
to be examined may oppose the motion on the basis of undue hardship. In evaluating hardship,
the Court may consider the availability of qualified examiners in close proximity to Plaintiff’s
residence or the forum district, distance of the examination from Plaintiff’s residence, and
Plaintiff’s physical condition. Blount, 162 F.R.D. at 107; 7 Moore’s Federal Practice, § 35.09
(Matthew Bender 3d).
In support of its motion, Defendant contends that Plaintiff’s allegations go far beyond
ordinary mental distress and require broader medical discovery than in typical injury cases.
Defendant states it will pay for Plaintiff’s reasonable travel, meal and lodging expenses, and
accommodate him by flying him in the night before the examination and/or permitting him to fly
back the day after the examination. Defendant states it has even discussed permitting a friend of

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Plaintiff’s to travel with him and paying for the related travel expenses. (Doc. No. 17, p. 3) In
addition, Defendant’s expert Dr. Thompson has agreed to accommodate Plaintiff by providing
reasonable breaks and/or flexible scheduling. Dr. Thompson has reviewed Plaintiff’s medical records
from 24 different sources and states there is no physical or psychological reason why Plaintiff cannot
travel to New Orleans for examination. (Doc. No. 17-5)
Defendant further argues the examination will not unduly burden Plaintiff because he is not
currently working and does not have scheduling conflicts which would complicate travel and/or
scheduling. The majority of the travel will be accomplished by plane on a non-stop flight which will
only last 1 hour 45 minutes. Moreover, Defendant argues Plaintiff is accustomed to routine travel as
he has been continuously treated since the October 14, 2011 accident and regularly travels back and
forth to his doctor’s visits, many of which require an hour and a half of travel time.
Plaintiff responds that he has no objection to appearing for a Rule 35 examination in St.
Louis or elsewhere within the boundaries of the Eastern District of Missouri. (Doc. No. 20, p. 2) He
notes there are qualified physicians in the communities of Washington University and Saint Louis
University as well as the BJC, Mercy and SSM networks. (Id., p. 1) In addition, Plaintiff states that
while he has seen medical personnel in St. Louis, he has not otherwise traveled, and requiring him to
drive from his residence in Farmington, Missouri to St. Louis to board an airplane and fly to New
Orleans, Louisiana would be an undue burden, particularly in light of his physical condition.
In reply, Defendant states that Dr. Thompson is uniquely qualified to evaluate Plaintiff’s
allegations of PTSD and functional limitations given his twenty-plus years of experience working
with the United States military and in private practice evaluating claims of post-traumatic stress
disorder. He has also served as an expert medical witness on “several hundred occasions” and is
familiar with the requirements of civil litigation. (Doc. No. 26, p. 5) Defendant contends Dr.
Thompson cannot simply be replaced by any psychiatrist in the St. Louis area. (Id.)
The Court is mindful that Rule 35(a) is liberally construed in favor of granting discovery.

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Blount, 162 F.R.D. at 107 (citing Schlagenhauf v. Holder, 379 U.S. 104, 114 (1964)). However, after
consideration, the Court will not compel Plaintiff to submit to an examination in New Orleans,
Louisiana, which is not in the forum chosen by Plaintiff. In addition, New Orleans is a substantial

distance from Plaintiff’s home in Farmington, Missouri. The Court also considers Plaintiff’s
physical condition. Blount, 162 F.R.D. at 107 (citing Steele v. True Temper Corporation, 174
N.E.2d 298, 301 (Ohio 1961)). Defendant argues that Plaintiff does not claim the travel would
result in any increased anxiety, fear or pain (Doc. No. 26, p. 6); however, the lengthy trip from
his home to New Orleans, Louisiana will certainly be difficult for Plaintiff to manage. As the
district court observed in Blount, this is too much to ask Plaintiff to do under these
circumstances. Id.
The Court presumes there are a number of qualified psychologists in the Eastern District
of Missouri, where Plaintiff resides and his action was brought; however, Defendant could
certainly arrange to fly Dr. Thompson and his staff to St. Louis to evaluate Plaintiff and perform
the necessary testing.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Rule 35 Motion to Compel Plaintiff to
Submit to an Independent Psychological/Psychiatric Examination [17] is DENIED.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

Dated this 15th day of April, 2013.

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