Davis et al v. Bamford, Inc. et al

Filing 71

MEMORANDUM AND ORDER - IT IS ORDERED: Defendants' motion to compel plaintiff Bobby Davis to appear (Filing No. 64 ) is granted as to the examination by Dr. Callahan, as consistent with this memorandum and order. Defendants' requests for oral argument and expedited hearing with regard to this motion are denied as moot. 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 Davis to appear for an independent
neuropsychological examination, filed pursuant to Federal Rule of
Civil Procedure 35(a) (Filing No. 64), with supporting brief and
index of evidence (Filing Nos. 65 and 66).

Plaintiffs have not

filed an opposition to this motion.
Defendants want Bobby Ray Davis to submit to one
independent neuropsychological examination in Omaha, Nebraska,
during the same time period in which Bobby Davis will already
appear for other examinations and a deposition (Filing No. 62).
The examination would be given by Ty Callahan, Ph.D., a
neuropsychologist.

Plaintiffs have already engaged an expert,

Richard Fulbright, Ph.D., who examined Bobby Davis on July 21,
2010, and August 4, 2010.

Dr. Fulbright prepared a

neuropsychological evaluation report that summarizes his findings

as to Bobby Davis’ neuropsychological deficits (Ex. 10, Filing
No. 44).

Defendants state that Bobby Davis’ mental injury, as

described by Dr. Fulbright, is “‘clearly in controversy and
provides [defendants] with good cause for an examination to
determine the existence and extent of such asserted injury’”
(Filing No. 65, at 3, quoting Schlagenhauf v. Holder, 379 U.S.
104, 119 (1964)).
After considering defendants’ submissions and the
applicable law, and considering the fact that plaintiffs have not
opposed the motion, the Court finds that defendants’ motion to
compel a Rule 35 examination by Dr. Callahan should be granted.
The examination will be limited to one day and a maximum of eight
hours, including two fifteen-minute breaks and a one-hour break
for lunch.

The parties will 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. Callahan practices and where he will testify at trial.
Accordingly,
IT IS ORDERED:
1)

Defendants’ motion to compel plaintiff Bobby Davis

to appear (Filing No. 64) is granted as to the examination by Dr.
Callahan, as consistent with this memorandum and order; and

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2)

Defendants’ requests for oral argument and

expedited hearing with regard to this motion are denied as moot.
DATED this 16th day of February, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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