Murphy et al v. Svoboda et al

Filing 39

ORDER denying the Defendants' 34 Motion to Compel an Independent Medical Examination and Deposition in the District of Nebraska. Ordered by Magistrate Judge F.A. Gossett. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN M. MIKE MURPHY, and
MARTHA MURPHY,
Plaintiffs,
V.
EMILY R. SVOBODA, SAUL
SOLTERO, and SHARON
SOLTERO,
Defendants.

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8:13CV155

ORDER

This matter is before the Court on Defendants’ Motion to Compel an Independent
Medical Examination and Deposition in the District of Nebraska (filing 34). Defendants’
motion will be denied.
BACKGROUND
This case arises from a motor vehicle accident which occurred on or about October
4, 2010. Plaintiff John Murphy (“Mr. Murphy”) alleges that Defendant Emily Svoboda
caused the accident at issue, which resulted in injuries to Mr. Murphy, including a brain
injury and dementia due to head trauma. (Filing 1.)
Defendants have requested that Mr. Murphy submit to an independent medical
examination pursuant to Fed. R. Civ. P. 35 in the District of Nebraska. Defendants have also
requested that Mr. Murphy be made available in the District of Nebraska for a deposition.
Plaintiffs do not dispute that Defendants have the right to request a medical examination and
depose Mr. Murphy. Rather, Plaintiffs contend that Mr. Murphy should not be compelled
to travel to Nebraska because his treating physician has advised him not to travel. Plaintiffs
have offered to make Mr. Murphy available for a physical examination and deposition within
a reasonable distance of Mr. Murphy’s residence in Auburn, Alabama. Defendants maintain,
however, that the medical exam and deposition should take place in Nebraska because

Plaintiffs decided to file suit in this jurisdiction.
DISCUSSION
The Court finds that requiring Mr. Murphy to travel to Omaha, Nebraska would
impose an unduly heavy burden upon Plaintiffs, given Mr. Murphy’s health condition. Mr.
Murphy suffers from chronic lymphocytic leukemia and dementia. Mr. Murphy’s treating
oncologist, Dr. Brandon Johnson, has opined that Mr. Murphy “certainly is not safe to travel”
and “traveling out of state would be physically taxing if not dangerous to [Mr. Murphy’s]
health and essentially impossible.” (Filing 38-2.) Defendants may request a medical
examination and depose Mr. Murphy. However, Mr. Murphy will not be compelled to come
to Nebraska. If necessary, Mr. Murphy has offered to travel to Atlanta, Georgia,
approximately 108 miles from Auburn, for the medical exam. Surely, a physician can be
retained in that area for such an examination.
IT IS ORDERED that Defendants’ Motion to Compel an Independent Medical
Examination and Deposition in the District of Nebraska (filing 34) is denied.
DATED September 22, 2014.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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