Hellman v. Greystone Nevada, LLC et al

Filing 57

ORDER granting 37 Motion to Compel. See Order for detail. Signed by Magistrate Judge Brenda Weksler on 12/25/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:20-cv-00559-JCM-BNW Document 57 Filed 12/27/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Peter J. Hellman,

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Case No. 2:20-cv-00559-JCM-BNW
Plaintiff,
ORDER re ECF No. 37

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v.

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Greystone Nevada, LLC, et al.,

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Defendants.

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Before the Court is Defendants’ Greystone Nevada, LLC and Lennar Sales Corp. motion

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to compel a second independent medical examination (“IME”) of Plaintiff. ECF No. 37. The

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opposition is at ECF No. 43, and the reply is at ECF No. 47.
The Court heard argument on this matter on October 12, 2021.1 See ECF No. 54. The

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parties are familiar with the arguments, so the Court does not repeat them here.
As mentioned during the hearing, there appear to be two issues before the Court: (1)

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whether Plaintiff should be subject to a second IME, and 2) whether the report of the first IME

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(by Dr. Manning) should have been turned over “upon request,” or whether it is subject to the

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expert discovery deadlines set for in the discovery plan and scheduling order.

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I.

Second IME

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There is no rule prohibiting having a Plaintiff undergo more than one IME. In fact, if

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multiple conditions are at issue, the court can order multiple examinations. Ornelas v. S. Tire

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Mart, LLC, 292 F.R.D. 388, 392 (S.D. Tex. 2013). Here, there are several conditions of Plaintiff

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“in controversy.”2 And while, as Plaintiff argues, there may well be several “one-stop-shops” that

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could have examined all conditions at issue, the rules do not restrict Defendants to such a

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requirement.

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The Court intended to have an Order for the parties sooner. Unfortunately, other matters have prevented the Court
from doing so.
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The Court relies on Plaintiff’s answers to interrogatories and those provided during his deposition.

Case 2:20-cv-00559-JCM-BNW Document 57 Filed 12/27/21 Page 2 of 2

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The fact that Defendants’ notice could have been clearer in terms of what Dr. Manning would be

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examining, his declaration makes clear that he examined Plaintiff’s knee and that another surgeon

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would be examining the back or spine. See ECF Nos. 43-1 and 38-1. Given this declaration,

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Plaintiff’s argument that it should satisfy itself that Dr. Manning’s examination did not include

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the back and spine before ordering a second IME lacks traction.
Accordingly, based on the above, the Court finds good cause for Plaintiff to submit to a

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second IME with Dr. Forage.

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II.

Timing for Disclosure of IME with Dr. Manning

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In addition to conducting an IME, Dr. Manning has been hired by Defendants as one of

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their experts. The main issue in dispute is whether Defendants needed to turn over the Rule 35

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report “upon request” or whether the deadlines for expert disclosures applied. Expert disclosures

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were due in this case on November 7, 2021. ECF No. 32. As a result, it appears that this issue is

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now moot as Defendants should already have turned over the report in question.

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III.

Fees
The Court will award fees. Fed. R. Civ. P. 37(a)(5). There is no question that Plaintiff is

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subject to a second IME. The issue of whether Dr. Manning’s report should have been turned

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over sooner is a separate issue, and for which a motion was ultimately filed (ECF No. 53), and

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does not dictate whether a second IME is to take place. The parties are ordered to meet and confer

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on the issue of fees within 10 days of this Order.

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IV.

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Conclusion
Based on the above, it is ordered that ECF No. 37 is GRANTED.

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DATED: December 25, 2021.

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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