Davis et al v. Bamford, Inc. et al

Filing 62

MEMORANDUM AND ORDER - IT IS ORDERED that Defendants' motion to compel plaintiff Bobby Davis to appear (Filing No. 49 ) is granted as to examinations by Dr. Kroeger and Dr. Davis, as consistent with this memorandum and order. Defendants' motion to compel plaintiff Bobby Davis to appear (Filing No. 49 ) is denied as to an examination by Mr. Schmidt. The Court's protective order (Filing No. 48 ) is rescinded as to plaintiff Bobby Davis, and the stay on the protective order is lifted as to plaintiffs Brenda Davis and Geoffrey Davis. Defendants' motion to extend scheduling deadlines by two months (Filing No. 53 ) is granted, and the final progression order (Filing No. 37) will be amended, including extensions of time for disclosure of expert witnesses, completion of discovery, pretrial motions, final pretrial conference, and trial date. Defendants' request for oral argument with regard to these motions is denied. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
BOBBY DAVIS, BRENDA DAVIS,
and GEOFFREY DAVIS,

)
)
)
Plaintiffs,
)
)
v.
)
)
BAMFORD, INC. and NANCY MARET )
PACKER, Personal
)
Representative of the ESTATE )
OF MICHAEL PACKER,
)
)
Defendants.
)
______________________________)

8:11CV69

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ motion
to compel plaintiff Bobby Ray Davis to appear, filed pursuant to
Federal Rule of Civil Procedure 35(a) (Filing No. 49), with
supporting brief and index of evidence (Filing Nos. 50 and 51).
Plaintiffs filed a brief in opposition to the motion (Filing No.
58), to which defendants replied (Filing No. 60).
Also before the Court is defendants’ motion to extend
scheduling deadlines (Filing No. 53).

Plaintiffs have not filed

a brief in opposition to this motion.
After considering the parties’ submissions and the
applicable law, the Court finds that defendants’ motion to compel
should be granted in part and denied in part and that defendants’
motion to extend should be granted.

In addition, this Court’s

previous protective order (Filing No. 48), which had been stayed,
is rescinded as to plaintiff Bobby Davis, and the stay on the

protective order is lifted as to plaintiffs Brenda Davis and
Geoffrey Davis.
I.

Motion to Compel.
A.

Factual and Procedural Background.

Plaintiffs, who live in the Dallas, Texas, area,
brought this case against defendants because of a traffic
accident that occurred in the District of Nebraska on May 11,
2009.

Plaintiff Bobby Davis claims that he was severely injured

in the accident, “including injuries associated with being
impaled by a pipe through his left leg, pelvis, and right back,
causing bladder rupture, pelvis fracture, vascular injury, and
leg and back injuries” (Complaint, Filing No. 1, at 7).

Bobby

Davis claims that he “suffered mental anguish and physical pain
in the past” and “will, in all likelihood suffer mental anguish
and physical pain in the future” (Id.).

In addition, Bobby Davis

claims that he “has suffered lost wages in the past, and will in
all likelihood suffer loss of earning capacity in the future”
(Id.).
Defendants seek to have Bobby Davis examined by two
medical doctors and one vocational rehabilitation counselor in
Omaha, Nebraska, the forum for this action.

In addition,

defendants seek to depose all three plaintiffs in Omaha,
Nebraska, during the same time period as the proposed
examinations of Bobby Davis.

Defendants have offered to pay

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Bobby Davis’ air fare for the flight from Dallas to Omaha up to
four hundred dollars and have offered to pay his lodging expenses
up to one hundred dollars per night for four nights.
Plaintiffs are not in agreement with defendants’
proposal.

Plaintiffs would prefer to be deposed in Dallas,

Texas, where they reside.

In addition, Bobby Davis is only

willing to be examined by one physician, also in the Dallas,
Texas, area.
B.

Federal Rule of Civil Procedure 35(a).

Rule 35(a) provides,
(a) Order for an Examination.
(1) In General. The court where
the action is pending 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. . . .
(2) Motion and Notice; Contents of
the Order. The order:
(A) may be made only on motion for
good cause 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.
The party requesting a Rule 35 exam must adequately
demonstrate that Rule 35’s “in controversy” and “good cause”
requirements are satisfied.
104, 118-19 (1964).

Schlagenhauf v. Holder, 379 U.S.

This showing can be made “by affidavits or

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other usual methods,” but, in some circumstances, the pleadings
alone will be sufficient to establish that the requirements are
met.

Id. at 119.

“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.”

Id. (internal citation

omitted).
“The manner and conditions of a court-ordered medical
examination, as well as the designation of the person or persons
to conduct such an examination, are vested in the sound
discretion of the trial court.”
221, 225 (8th Cir. 1974).

Sanden v. Mayo Clinic, 495 F.2d

“Although there is some division of

authority, most judges have, in the usual case, ordered the
plaintiff to appear for examination at the place where the trial
would be held —- that is, at the venue selected initially by the
plaintiff.”

Baird v. Quality Foods, Inc., 47 F.R.D. 212, 212-13

(E.D. La. 1969).

“This allows the examining physician to be

available conveniently for testimony.”

Id. at 213.

“Rule 35 does not limit the number of examinations.
Nor would such a limitation be a judicious one.”

Peters v.

Nelson, 153 F.R.D. 635, 637 (N.D. Iowa 1994) (internal citations
omitted).

“Each request for an independent medical examination

must turn on its own facts, and the number of examinations to
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which a party may be subjected depends solely upon the
circumstances underlying the request.”
C.

Legal Analysis.

Id.

Defendants seek to compel Bobby

Davis to submit to two medical examinations and one vocational
assessment.
1.

Medical Examination by R. Michael Kroeger, M.D.

Defendants move the Court to compel Bobby Davis to be
examined by Dr. R. Michael Kroeger.

Dr. Kroeger is a medical

doctor in Omaha, Nebraska, with a specialty in urology.
Bobby Davis alleges that as a result of the accident,
he was impaled by a pipe through his left leg, pelvis, and right
back, causing bladder rupture, bladder dysfunction, pelvis
fracture, vascular injury, and impairment with sexual
intercourse.

The Court finds that defendants have sufficiently

shown that the requirements of Rule 35 are satisfied with regard
to an examination of Bobby Davis’ torso and legs by urologist Dr.
Kroeger.

The pleadings establish the “in controversy” and “good

cause” requirements for such an exam, and plaintiffs have not
disputed that Dr. Kroeger is a qualified physician.
Plaintiffs have not submitted to the Court any evidence
from Bobby Davis’ treating physicians to support plaintiffs’
claim of the difficulty of travel for Bobby Davis, or of his need
for a traveling companion.

Defendants have offered to reimburse

Bobby Davis for a substantial portion of his travel expenses.
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The parties may determine the date and time of the examination
without the Court’s involvement, but the Court finds that the
examination should take place in Omaha, Nebraska, where Dr.
Kroeger practices and where he will testify at trial.
2.

Medical Examination by Terry A. Davis, M.D.

Defendants also move the Court to compel Bobby Davis to
be examined by Dr. Terry A. Davis.

Dr. Davis is a medical doctor

in Omaha, Nebraska, with a specialty in psychiatry and forensic
psychiatry.
Bobby Davis alleges that as a result of the accident,
he has suffered mental anguish in the past and will likely suffer
mental anguish in the future.

The Court finds that defendants

have sufficiently shown that the requirements of Rule 35 are
satisfied with regard to a psychiatric examination of Bobby Davis
by psychiatrist Dr. Davis.

The pleadings establish the “in

controversy” and “good cause” requirements for such an exam, and
plaintiffs have not disputed that Dr. Davis is a qualified
physician.
Accordingly, defendants’ request for a Rule 35
psychiatric exam by Dr. Davis in Omaha, Nebraska, will be
granted.

The examination will be limited to two hours.

The

parties will determine the date and time of the examination
without the Court’s involvement, but the Court finds that the

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examination should take place in Omaha, Nebraska, where Dr. Davis
practices and where he will testify at trial.
3.

Vocational Assessment by Ronald R. Schmidt.

Finally, defendants request that Bobby Davis be
assessed by Mr. Ronald R. Schmidt.

Mr. Schmidt is a certified

rehabilitation counselor in Omaha, Nebraska, who provides
“vocational evaluation, counseling, guidance and placement work
in the rehabilitation of physically and mentally impaired
individuals” (Ex. 5, Filing No. 51, at 1).

Bobby Davis alleges

that as a result of the accident, he has suffered lost wages in
the past and will likely suffer loss of earning capacity in the
future.

Defendants state that Mr. Schmidt should be allowed to

directly examine Bobby Davis, just as the experts retained by
plaintiffs have done.
The Court finds that defendants have not shown that
“good cause” exists for the assessment.

Defendants have not

sufficiently demonstrated what the examination would entail or
why the information sought cannot be obtained through other modes
of discovery.

As noted by the District Court of Minnesota in a

similar case:
. . . defendant has been provided
with all of plaintiff’s medical
records, has deposed plaintiff, and
has been provided with information
concerning plaintiff’s education,
experiences and medical disability.
The undersigned therefore finds
that defendant has been provided
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with ample material which
[defendant’s vocational expert] may
review to form a conclusion as to
plaintiff’s employment
capabilities. The fact that
[defendant’s vocational expert] is
precluded from personally examining
plaintiff does not preclude
defendant from having [defendant’s
vocational expert] testify at trial
as to the conclusions he forms
pursuant to his review.
Stanislawski v. Upper River Services, Inc., 134 F.R.D. 260, 262
(D. Minn. 1991).

Defendants’ request for a Rule 35 vocational

examination by Mr. Schmidt will be denied.
II.

Protective Order.
Previously, defendants had sought to compel plaintiffs’

attendance at depositions in Omaha, Nebraska, scheduled for
November 28-29, 2011.

Plaintiffs filed a motion for protective

order requesting that the depositions take place in Dallas,
Texas, rather than in Omaha.

The Court granted the motion for

protective order, stating that the depositions would take place
in Dallas, Texas.
Subsequently, the Court stayed the protective order
after granting defendants leave to file a surreply brief in
response to evidence submitted in plaintiffs’ reply brief.

Thus,

the stayed protective order is at issue.
A.

Bobby Davis.

Because the Court is partly granting

defendants’ motion to compel Bobby Davis to submit to medical
examinations in Omaha, Nebraska, the motion for protective order
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is rescinded as to Bobby Davis, and the deposition of Bobby Davis
will take place in Omaha, Nebraska, during the same time period
as his medical examinations.
B.

Brenda Davis and Geoffrey Davis.

The stay on the

protective order is lifted as to the depositions of Brenda Davis
and Geoffrey Davis.

Their depositions will take place in Dallas,

Texas, as previously ordered, unless they consent to being
deposed in Omaha.
III.

Motion to Extend Scheduling Deadlines.
Defendants move to extend the scheduling deadlines as

given in the final progression order (Filing No. 37) by two
months.

Plaintiffs have not filed a response in opposition to

the motion to extend.
should be granted.

The Court finds that the motion to extend

Accordingly,

IT IS ORDERED that
1)

Defendants’ motion to compel plaintiff Bobby Davis

to appear (Filing No. 49) is granted as to examinations by Dr.
Kroeger and Dr. Davis, as consistent with this memorandum and
order;
2)

Defendants’ motion to compel plaintiff Bobby Davis

to appear (Filing No. 49) is denied as to an examination by Mr.
Schmidt;
3)

The Court’s protective order (Filing No. 48) is

rescinded as to plaintiff Bobby Davis, and the stay on the

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protective order is lifted as to plaintiffs Brenda Davis and
Geoffrey Davis;
4)

Defendants’ motion to extend scheduling deadlines

by two months (Filing No. 53) is granted, and the final
progression order (Filing No. 37) will be amended, including
extensions of time for disclosure of expert witnesses, completion
of discovery, pretrial motions, final pretrial conference, and
trial date; and
5)

Defendants’ request for oral argument with regard

to these motions is denied.
DATED this 9th day of January, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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