Bowen et al v. Allied Property and Casualty Insurance Company

Filing 35

MEMORANDUM AND ORDER - The defendant's motion for continuance, interpreted as also requesting an order for a Rule 35 examination, (filing no. 30 ), is granted. Plaintiff Jacqueline Bowen shall attend and submit to an independent medical examin ation at Defendant's expense, on Monday, May 14, 2012, at 2:45 p.m. On or before May 7, 2012, the defendant shall provide to the plaintiffs' counsel a general statement outlining the anticipated manner, conditions, and scope of the independ ent medical examination to be performed. Non-Jury Trial set for 7/23/2012 at 09:00 AM in Courtroom 2, Robert V. Denney Federal Building, 100 Centennial Mall North, Lincoln, NE before Senior Judge Richard G. Kopf. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JACQUELINE E. BOWEN, Individuals,
and STEPHEN T. BOWEN, Individuals,
Plaintiffs,
v.
ALLIED PROPERTY AND CASUALTY
INSURANCE COMPANY, an Iowa
Corporation; d/b/a Allied Insurance, a
Nationwide Company,
Defendant.

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4:11CV3163

MEMORANDUM AND ORDER

A telephonic hearing was convened on the defendant’s motion to extend the deadline for
obtaining an independent medical examination of the plaintiff. The plaintiff argues that
“[d]efendant’s failure to seek a Rule 35 exam or file a motion to extend the Progression Order
between the date of Ms. Bowen’s deposition and the expiration of the Rule 35 discovery deadline
is fatal to Defendant’s current motion.” Filing No. 34, p. 6.

Having considered the parties’ submissions and the arguments of counsel, the court finds
as follows:

The plaintiffs’ complaint alleges Jacqueline Bowen sustained personal injuries during a
motor vehicle accident that occurred on September 28, 2007. The lawsuit seeks recovery of
damages arising due to those injuries under the uninsured and underinsured provisions of the
plaintiffs’ automobile insurance policy. The policy was issued by the defendant.

Due to scheduling difficulties, the plaintiffs were not deposed until March 20, 2012.
During the course of those depositions, the defendant discovered the Jacqueline Bowen may have
previously injured her neck during a surfing accident, for which she may have received prior
care, including chiropractic treatment. Within three days after the plaintiffs’ depositions, the

defendant filed notices of its intent to serve subpoenas duces tecum to collect additional medical
records, including chiropractic records, not previously obtained from the plaintiffs. See filing
nos. 27 and 28. Under this court’s local rules, the plaintiff was afforded 7 days (until April 2,
2012) to object to those subpoenas. NECivR 45.1(b).

On March 28, 2012, the defendant timely identified Dr. John Goldner as a defense expert.
See filing no. 13, ¶ g. On or about April 9, 2012, Defendant sent correspondence to plaintiffs’
counsel requesting that Ms. Bowen attend an independent medical examination by Dr. Goldner
on May 14, 2012. The proposed Rule 35 examination is to determine the nature, extent and
effect of Ms. Bowen’s alleged injuries. Barring any unforeseen circumstances, the IME report
will be available and could be timely disclosed as a defense expert witness report by May 28,
2012. See filing no. 13, ¶ g.

The plaintiffs object to the examination because it was not performed before the Rule 35
discovery deadline, (see filing no. 13, ¶ e), and because the defendant did not file a properly
supported motion for an order requiring an independent medical examination.

As to the issue of timeliness, the court finds the defendant exercised due diligence in
preparing the medical damages aspect of this case, including the assessment of whether an
independent medical examination was warranted. The plaintiffs’ depositions were held only
eight days prior to the discovery deadline due to the partes’ schedules. The information disclosed
during the deposition prompted the defendant to issue notices to serve subpoenas for the
collection of additional medical records,1 and to request an independent medical examination.

The plaintiff can show no prejudice resulting from the delay in obtaining an independent
medical examination. The IME report will be available in accordance with the deadline for
1

As of the hearing, the defendant had received responses to some of the subpoenas, but had

not received a response to the subpoena served on Jacqueline Bowen’s chiropractor.

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serving expert reports under the court’s progression order, and the trial and pretrial conference
will not be affected by the proposed timing of the IME.

Regarding the issue of whether the defendant complied with Rule 35 in requesting an
order for an IME, an order is not required if the parties agree, as they typically do, to the IME
examination. See Fed. R. Civ. P. 35 (6). When the parties do not agree, the requesting party
must file a motion. The motion must include a showing of good cause with 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.”

Although entitled a “Motion for Continuance” and not a “Motion for Rule 35
Examination,” in nearly all respects, the defendant’s pending motion and supporting affidavit
meet the criteria of Rule 35.2 As to the showing of good cause, an evidentiary showing (by
hearing or affidavit) is not always necessary. The pleadings alone may provide a sufficient
showing of good cause; for example, a “plaintiff . . . 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, 119 (1964). The defendant’s pending motion states
when, where, and by whom the IME will be conducted. The only information not included in
the pending motion relates to the scope, manner and conditions of performing the examination.
In that regard, the defendant states the proposed examination is not invasive, but rather a
neurological examination. Having seen prior reports from Dr. Golder, counsel for both parties
are aware of the type of examination that will be performed by this doctor. That said, the
defendant will be required to provide a basic outline of the examination to be performed by Dr.
Goldner so Jacqueline Bowen is herself aware of the examination parameters.

2

Litigation in federal court should not be a “trap for the unwary;” the title of a motion does

not govern the relief obtained.

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Finally, plaintiff’s counsel notified the court that this case was erroneously set as a jury
trial. Neither party has requested a trial by jury. The error by the court will be corrected in the
following order.
Accordingly,
IT IS ORDERED:
1)

The defendant’s motion for continuance, interpreted as also requesting an order
for a Rule 35 examination, (filing no. 30), is granted.

2)

Plaintiff Jacqueline Bowen shall attend and submit to an independent medical
examination at Defendant’s expense, on Monday, May 14, 2012, at 2:45 p.m. with
Dr. John Goldner of Neurology LLP at Indian Hills Medical Plaza, 8901 W.
Dodge Road, Suite 210, Omaha, NE 68114-3442.

3)

On or before May 7, 2012, the defendant shall provide to the plaintiffs’ counsel
a general statement outlining the anticipated manner, conditions, and scope of the
independent medical examination to be performed. To be clear, the doctor need
not provide a listing of every neurological test he will perform, and need not
perform every test he lists. That decision is left to the exercise of his medical
judgment at the time of the examination. The statement contemplated by this
paragraph is intended to provide Jacqueline Bowen with a general idea of what
she should expect, and how much time she should set aside, for the independent
medical examination.

4)

The clerk shall re-set this trial on the court’s calendar as a five-day non-jury trial,
to commence on July 23, 2012 before Senior District Judge Richard G. Kopf.
April 19, 2012.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility for
the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.

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