Gibson et al v. Jensen et al

Filing 56

ORDER granting in part and denying in part 47 Defendants' Motion to Compel as set forth in the attached order. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GARY GIBSON JR., and SHAWNA
GIBSON, husband and wife;
8:16CV296
Plaintiffs,
MEMORANDUM AND ORDER

vs.
BRIESON JENSEN, and FARMERS
CO-OPERATIVE,
Defendants.

This matter is before the court on Defendants’ (Brieson Jensen and
Farmers Co-Operative) motion to compel a mental evaluation of Plaintiff Gary
Gibson, Jr. (Filing No. 47). For the reason set forth below the motion is granted,
subject to the restrictions in this order.

BACKGROUND
This suit arises out of injuries Plaintiff Gary Gibson, Jr. (“Gibson”)
sustained in a June 26, 2013 motor vehicle accident.

Gibson is seeking

damages for the injuries he sustained from the accident. He has been diagnosed
with a “mild traumatic brain injury, . . . major depressive disorder, and related
difficulties in the areas of memory, attention, concentration, organization, and
problem solving.” (Filing No. 49 at CM/ECF p. 3).

In compliance with the Final Progression Order (Filing No. 15), Plaintiffs
disclosed their expert witnesses and reports on February 1, 2017. Included in
the disclosures was the expert report of Dr. Thomas Haley. Dr. Haley opined
Gibson is suffering from the above-mentioned mental and emotional conditions.

The deadline for disclosing Defendants’ expert witness reports was originally
April 3, 2017. Defendants sought, and received, an extension until May 3, 2017.
By agreement, the parties further extended Defendants’ disclosure deadline until
May 10, 2017. On that date, Defendants provided Plaintiffs with their expert
reports and disclosures, including those of neurophychiatrist Dr. Terry Davis and
neuropsychologist Dr. Deborah Hoffnung.

Dr. Hoffnung’s recommended that

Gibson undergo a more thorough psychiatric evaluation “as well as a
comprehensive evaluation of cognitive functions, mood, and behavior with a
neuropsychological evaluation that includes measures of performance validity,
conducted by a board-certified neuropsychologist.” (Filing No. 48-1 at CM/ECF
p. 29).

The parties communicated during the month of May and participated in an
unsuccessful mediation on May 15, 2017.

On May 23, 2017, the parties

participated in a telephonic status conference with the undersigned Magistrate
Judge. Defendants requested that Plaintiff Gibson be made available in Omaha
for mental examinations by Drs. Davis and Hoffnung, pursuant to Fed. R. Civ. P.
35. Defendants filed the pending motion to compel under Rule 35 on June 1,
2017.

ANALYSIS

Under Rule 35, a court may order a mental or physical examination of a
party if that party’s mental or physical condition is placed at issue. Fed. R. Civ.
P. 35(a)(1). Once a party makes specific allegations of a specific mental or
psychiatric injury or disorder, or offers expert testimony to support a claim of
mental illness, the plaintiff’s mental condition has been placed “at issue” for the
purposes of Rule 35 and the moving party has shown good cause for the

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examination. See Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964); Auer v.
City of Minot, 178 F. Supp. 3d 835, 842 (D. Minn. 2016)(collecting cases). The
decision to allow a Rule 35 examination, together with the proper scope and
procedures applicable to the examination, are within the sound discretion of the
court. Sanden v. Mayo Clinic, 495 F.2d 221, 225 (8th Cir.1974).

Rule 35 and the Final Progression Order

Plaintiffs argue Defendants have filed their motion out of time because the
deadline set for filing motions to compel was February 15, 2017 and Defendants
full expert disclosures and reports were due May 10, 2017.

Thus, Plaintiffs

assert any attempt to supplement the expert disclosures with the results of a
Rule 35 examination is untimely.

Plaintiff asserts Defendants were required to file their motion to compel the
Rule 35 mental examination by the motion to compel deadline set forth in
paragraph 6 of the Final Progression Order.

(Filing No. 15).

Paragraph 6

provides:

The deadline for completing written discovery under Rules 33
through 36 of the Federal Rules of Civil Procedure is February 1,
2017. Motions to compel Rule 33 through 36 discovery must be filed
by February 15, 2017 Note: Motions to compel shall not be filed
without first contacting the chambers of the undersigned magistrate
judge to set a conference for discussing the parties’ dispute.
(Filing No. 15, ¶6). Plaintiffs argue the deadline for filing a motion for a Rule 35
examination was February. The question is whether paragraph 6 applies to Rule
35 examinations and, quite frankly, the issue has never been raised before. The
court intended paragraph 6 to apply solely to written discovery:

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It does not

consider a Rule 35 examination a part of “written discovery” for the purposes of
paragraph 6. And the parties have not presented any evidence that prior to their
dispute arising, they formed any agreement on whether a motion for a Rule 35
examination should be included in the deadline established in paragraph 6.
Because the language in the court’s Final Progression Order is not the model of
clarity, the court finds even if it can be interpreted as creating a deadline for
motions for Rule 35 examinations, Defendants should not be bound by the
February 15, 2017 motion to compel deadline in paragraph 6 of the Final
Progression Order.1

Timing of the Rule 35 motion

Finding paragraph 6 of the Final Progression Order did not clearly set a
Rule 35 motion deadline, the court must address whether the Rule 35
examination request is untimely as beyond Defendants’ expert witness disclosure
deadline. As this court has previously held, the requirements of the timing of
expert disclosures as governed by Rule 26, and the timing of a request for an
examination under Rule 35 generally operate independent of one another. See
Perez v. Viens, no. 4:09cv3206, 2011 WL 855673 (D. Neb. March 8, 2011) (citing
Waggoner v. Ohio Central Railroad, Inc., 242 F.R.D. 413 (S.D. Ohio 2007)). As
explained in Waggoner:

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If the motion to compel deadline is read as applying to motions for Rule 35
examinations, Defendants argue the time should be extended for “excusable neglect”
under Fed. R. Civ. P. 6(b)(1)(A) due to the ambiguity in the scheduling order. The
request could also be considered a motion to modify the scheduling order for “good
cause” under Fed. R. Civ. P. 16(b)(4). Under either standard, Defendant’s argument is
well taken, based on the unclear language of paragraph 6 of the Final Progression
Order. To the extent Defendants missed the deadline for motions to compel contained
in the Final Progression Order, they are allowed to file a motion for a Rule 35
examination out of time.

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At the time a party requests a Rule 35 examination, it is not
necessarily the case that the examining physician will be called to
testify at trial. Often, the results of the examination simply confirm
what the injured party's doctors have reported, and the Rule 35
examiner therefore serves only as a consultant to the defending
party and not as a trial witness.
Waggoner, 242 F.R.D. at 414. But when the moving party attempts to use the
report from the Rule 35 examination as its expert witness disclosure, “the
distinction evaporates.” Perez, 2011 WL 855673 at *3. That is, when a Rule 35
examination is used to supplement or inform an expert’s opinions for use at trial,
the difference between the reports disappears, or begins to, and the court
becomes more reluctant to allow a Rule 35 examination for the purpose of
bolstering an expert’s opinions out of time.

For instance, in Perez, the defendant sought an Rule 35 examination for
two distinct purposes: 1) to receive a current report on the plaintiff’s physical
limitations and 2) to determine if the accident at issue caused the defendant’s
alleged injuries. The defendant in Perez had not disclosed an expert within the
necessary deadline and waited until discovery was almost closed prior to filing a
motion for a Rule 35 examination. The court allowed the Rule 35 examination,
but the examining physician’s testimony was limited to discussing the plaintiff’s
physical limitations and not his opinion as to the cause of those limitations.

Here, Defendants have disclosed experts and expert reports and moved
for a Rule 35 examination prior to the close of discovery. Defendants are not
asking the Rule 35 examiner to opine on causation. Rather, they apparently
question whether Gibson is actually experiencing the symptoms to the severity
reported by Plaintiffs’ expert. Defendants characterize their Rule 35 examination
request as the basis for “supplementing” their prior expert disclosures, but the

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court will not permit using an in-person examination of Gibson to generate
previously undisclosed opinion testimony. In other words, the court will not afford
Defendant a second chance to generate expert reports based on a Rule 35
examination that was requested after the expiration of the expert report deadline.
However, Plaintiffs have clearly put Gibson’s mental health at issue by
claiming Gibson suffers from specific emotional and psychiatric trauma and by
offering expert testimony to support that claim. Under Rule 35 and supporting
case law, Plaintiff’s allegations provide good cause for an Rule 35 examination.2
The request was made prior to the close of all discovery, although not before the
expert report deadline expired. Thus, the court will allow Defendants to conduct
a mental examination of Gibson, but for only limited purposes. As in the Perez
case, the scope of the exam and its subsequent use in this case will be subject to
motions in limine regarding the use of the exams. That is, any expert report or
expert testimony based on the Rule 35 examination shall be considered
equivalent to the testimony of a non-retained treating physician’s testimony, with
any admissible evidence (in this case, medical diagnosis and testing results)
limited accordingly. But the Rule 35 examination shall not be used as a basis for
new opinions, or as a new basis for opinions on causation of Gibson’s injuries;
future prognosis; whether the medical and mental health treatment Plaintiff
received (and the related expenses incurred) was fair, reasonable, and
necessary; the likely need for future treatment and the projected cost of that
treatment; and the results of the Rule 35 examination will not be permitted as a
“supplement” the defense experts’ previous reports.

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Plaintiffs object to a Rule 35 examination because of the hardship Gibson will
experience traveling to Omaha, Nebraska. But the fact Gibson may be inconvenienced
is not a factor in the “good cause” analysis. While the court is not unsympathetic,
Plaintiffs initiated this lawsuit in Omaha, Nebraska, and they can be expected to travel
to Omaha for business related to the suit.

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Accordingly,

IT IS ORDERED:

1)

Defendants’ motion for a Rule 35 examination of Plaintiff Gary
Gibson, Jr. is granted, as limited by this order.

2)

The parties shall confer to schedule the Rule 35 examination.

3)

Defendants request for an oral argument on the motion is denied.

Dated this 12th day of July, 2017.
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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