BLAKENEY v. NORFOLK SOUTHERN RAILWAY COMPANY

Filing 37

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 2/26/2019; that Defendant's Motion to Compel Physical Examination of Plaintiff (Docket Entry 30 ) is DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANTWON J. BLAKENEY,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.

1:17CV563

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendant’s Motion to
Compel

Physical

Examination

of

Plaintiff

(Docket

Entry

30).

Because the Court does not find the requisite “good cause,” Fed. R.
Civ. P. 35(a)(2), it will deny the instant Motion.
INTRODUCTION
Plaintiff commenced this action by filing a Complaint against
Defendant under the Federal Employer’s Liability Act, 45 U.S.C.
§§ 51 et seq.

(See Docket Entry 1.)

According to the Complaint,

“on May 10, 2016 while employed as a Truck Driver/Track Laborer for
Defendant . . ., Plaintiff fell to the ground with great force
while removing a Fifty (50) pound heavy steel hydraulic spike
hammer from the rear tool bed and compartment of [his] assigned
gang truck.”

(Id. at 2.)

The Complaint attributes Plaintiff’s

fall to the negligence of Defendant (see id. at 2-3) and alleges
that the fall caused “serious, painful and permanent injuries to
[Plaintiff’s] head, neck, back, shoulder and related body parts,

[as well as] psychological injuries” (id. at 4).
allegedly

“caused

[Plaintiff]

to

undergo

These injuries

medical

treatment,

psychological treatment, diagnostic tests, physical therapy, use of
necessary medications, MRI’s[,] FCE’s, and x-rays, [as well as]
surgery to try and limit the pain and discomfort and limitations[,]
and will require future medical treatment.”

(Id.; see also id.

(“Plaintiff . . . will in the future be caused to expend further
great sums for medical treatment.

Plaintiff . . . will in the

future have pain, suffering and mental anguish as a result of
Defendant’s negligence.

Plaintiff’s ability to work, labor, and

enjoy the normal pursuits of life has been impaired and lessened
. . . .” (paragraph number omitted)).)

Defendant answered and

admitted that Plaintiff fell while in its employ, but denied his
allegations of negligence and injury.

(See Docket Entry 10 at 2.)

Discovery began on or about October 18, 2017 (see Text Order
dated Oct. 18, 2017 (adopting Certification and Report of Joint
Rule 26(f) Conference and Discovery Plan (“Discovery Plan”) (Docket
Entry 12)); see also Docket Entry 12 at 1 (“[Federal] Rule [of
Civil Procedure] 26(a)(1)(A) Initial Disclosures shall be exchanged
on October 31, 2017.”)), and closed on August 30, 2018 (see Text
Order dated July 2, 2018).

Since January 22, 2018, the parties

have known that any trial would occur during the April 2019 Civil
Master Calendar term.

(See Docket Entry 14.)

-2-

The Discovery Plan proposed by the parties and adopted by the
Court mandates “[s]upplementations under [Federal] Rule [of Civil
Procedure] 26(e) . . . within a reasonable time upon learning that
a disclosure or response to a discovery request is incorrect or
incomplete in some material respect.”

(Docket Entry 12 at 2.)

It

also authorizes, “if necessary, depositions of expert witnesses,
including treating doctors, [to] be taken outside the discovery
period by stipulation of the parties or by order of the Court on
good cause shown no later than 21 days prior to trial.”

(Id.)1

In addition, pursuant to the Discovery Plan, Plaintiff and
Defendant had to serve any expert disclosures under Federal Rule of
Civil Procedure 26(a)(2)(B) and (C) by March 30 and April 30, 2018,
respectively. (See id.; see also id. (allowing Plaintiff until May
30, 2018, to serve rebuttal expert disclosures).)

On June 25,

2018, Defendant confirmed that it did “not anticipate introducing
expert testimony from any retained expert. . . .

[H]owever, [it]

reserve[d] the right to introduce expert testimony from any of the
treating

physicians

identified

.

.

.

in

Plaintiff’s

expert

disclosures . . . relate[d] to their treatment and care of [him]
and their knowledge and opinion of his medical condition.” (Docket
Entry 35-1 at 2; see also id. (“[T]his letter constitutes notice

1

Defendant’s Reply overlooks the above-quoted authorization
of depositions beyond the discovery deadline in arguing that “no
depositions can be taken following the close of the discovery
period” (Docket Entry 36 at 8 (emphasis omitted)).
-3-

that [Defendant] may also call any of the non-retained experts
identified by Plaintiff on topics identified by Plaintiff.”).)
On October 24, 2018, Defendant notified Plaintiff that it
“intend[ed] to move under [Federal] Rule [of Civil Procedure] 35
and Local Rule 26.1(e) for an order requiring [him] to submit to a
physical examination by one or more physicians sometime in the
early part of [2019].”

(Docket Entry 32-4 at 1; see also id.

(seeking Plaintiff’s consent).)

After several follow-up inquiries

by Defendant about whether Plaintiff would agree to a physical
examination (see Docket Entry 36-1 at 2-6), on December 4, 2018,
Plaintiff requested information about how Defendant “plan[ned] to
use th[e physical examination] report” (id. at 2).

Defendant

promptly responded that it “would expect to use the [physical
examination] report at trial as provided and allowed under the
[Federal]

Rules of

Civil

Procedure

Plaintiff immediately asked:
[physical

examination

it

“would

expect

report]

to

Local Rules.”

(Id.)

“[W]ould [Defendant] present the

subject to cross?” (Id. at 1.)
that

and

be

through

the

medical

[examiner]

Two days later, Defendant answered
able

to

present

the

[physical

examination] report through testimony of the examining doctor (who
would of course be subject to cross) and/or [to] use the report to
cross-examine any medical witnesses called by [ P]laintiff.” (Id.)
On January 13, 2019, Plaintiff declined to consent to a physical
examination.

(See Docket Entry 36-2 at 1.)

-4-

Defendant filed the instant Motion on January 29, 2019.

(See

Docket Entry 30; see also Docket Entry 31 (Brief in Support).)
Plaintiff has responded in opposition (see Docket Entry 35) and
Defendant has replied (see Docket Entry 36).
DISCUSSION
The instant Motion asks “this Court to order the physical
examination of Plaintiff [] prior to trial.”

(Docket Entry 30 at

1; see also id. at 2 (describing proposed examiner as “boardcertified

in

occupational

medicine”

with

experience in occupational medicine”).)

“over

25

years

of

“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,” Fed. R.
Civ. P. 35(a)(1); however, “[t]he order . . . may be made only on
motion for good cause,” Fed. R. Civ. P. 35(a)(2) (emphasis added);
see also M.D.N.C. LR 26.1(e) (“For good cause appearing therefor,
the physical or mental examination of a party may be ordered at any
time prior to trial.”).

Although generally “[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,” Schlagenhauf v.
Holder, 379 U.S. 104, 119 (1964) (internal citation omitted),
“[t]he ability of the movant to obtain the desired information by

-5-

other means is also relevant,” id. at 118; see also Equal Empl’t
Opportunity Comm’n v. Maha Prabhu, Inc., No. 3:07CV111, 2008 WL
2559417, at *2 (W.D.N.C. June 23, 2008) (unpublished) (“[[T]he
part[y moving for a physical or mental examination] must show
necessity . . . .

[G]ood cause does not exist where the desired

information could have been obtained through less invasive tools of
discovery.
obtaining

Thus, necessity arises where . . . other means of
information

[about

a

party’s

alleged

injuries]

are

exhausted.” (internal citation omitted)).
The instant Motion argues that good cause supports Defendant’s
request for a physical examination of Plaintiff because:
The testimony of Plaintiff and his treating physicians,
given at discovery depositions between May and July 2018
(at least nine months before the scheduled trial date),
indicates that Plaintiff may still be undergoing
additional medical treatment and his medical condition
may still be changing. Therefore, by the time of trial,
his medical condition likely will not be accurately
reflected in the medical records and testimony previously
provided during discovery.
(Docket Entry 30 at 2 (emphasis added); see also Docket Entry 31 at
4-5

(“Plaintiff

and

his

treating

physicians

have

testified

regarding his physical condition and treatment, but that testimony
will be at least nine months out-of-date by the time of trial.
Furthermore, . . . Plaintiff was still seeking and receiving
additional treatment for his alleged injuries at the close of
discovery, and at least one of his treating physicians acknowledged
that his physical condition could change prior to trial.

-6-

As a

result, the medical records and testimony obtained during discovery
will not be sufficient to show [his] physical condition at the time
of trial.”).) As support for the foregoing assertions, Defendant’s
Brief in Support of the instant Motion discusses (and attaches
excerpts from the transcripts of) the depositions of Plaintiff and
two of his doctors (Durwin Brooks and Eliot Lewit).

(See Docket

Entry 31 at 2-3 (referencing Docket Entries 32-1, 32-2, 32-3).)
In the attached transcript excerpts from his deposition on May
1, 2018, Plaintiff testified that:
1) Dr. Brooks “recommended surgery but [said] that [Plaintiff]
didn’t have to have it right [then]” (Docket Entry 32-1 at 2);
2) Plaintiff “just had a MRI . . . and [needed] to go back to
talk to Dr. Brooks about it” (id. at 3); and
3) “to address [Plaintiff’s] headaches,” Dr. Lewit prescribed
“medication” and, “every two . . . [or] three months,” Plaintiff
had been and was “currently seeing [Dr. Lewit]” (id. at 4).
The attached transcript excerpts from Dr. Brooks’s deposition
(on June 12, 2018), in turn, reflect that:
1) on April 4, 2018, Dr. Brooks saw Plaintiff for the first
time in “a little over a year,” to “follow[] up with neck and right
arm pain 23 months out from his injuries” and to “follow[] up about
his back pain as well” (Docket Entry 32-2 at 2-3);

-7-

2) Plaintiff’s “clinical exam still did not show signs of
myelopathy”

(id.

4;2

at

see

also

id.

(recounting

Plaintiff’s

“normal gait pattern,” as well as “unequivocal Babinski, negative
Hoffman sign, no clonus, [and] five out of five strength”));
3) nonetheless, Dr. Brooks “ordered [an MRI of Plaintiff’s]
cervical [spine] to reevaluate . . . cord signal change” (id. at
5);
4) Dr. Brooks also “ordered . . . [an MRI of Plaintiff’s]
lumbar [spine] because he was having increasing radicular right leg
pain” (id.; see also id. (“[Plaintiff] has a pars defect and nerve
compression, so [Dr. Brooks] wanted to evaluate that as well.”));3
5) upon review, Dr. Brooks did not “note in these new lumbar
and

cervical

MRIs

.

.

.

any

significant

differences

from

[Plaintiff’s] previous MRIs” (id. at 6); and

2

“Myelopathy is a ‘disorder of the spinal cord.’” Laberge v.
Berryhill, No. 18CV257, 2018 WL 6819328, at *2 n.1 (D.N.H. Dec. 28,
2018) (unpublished) (internal brackets omitted) (quoting Stedman’s
Medical Dictionary 1270 (28th ed. 2006)).
3

“A pars defect of the lumbar spine involves a part of a
vertebra called the pars interarticularis (meaning the part between
two joints) and refers to a break in that portion of bone that
leads to a separation of the upper, front portion of the vertebra
from
its
lower,
back
portion.
It
is
a
precursor
to
spondylolisthesis.”
Velasquez v. Wexford Health Sources, Inc.,
Civ. No. 16-1807, 2017 WL 4151278, at *4 n.7 (D. Md. Sept. 19,
2017) (unpublished); see also Batista v. Commissioner of Soc. Sec.,
No. 16CV3629, 2018 WL 4964102, at *7 n.18 (E.D.N.Y. Oct. 15, 2018)
(unpublished) (“Spondylolisthesis is a slipping of vertebra that
occurs, in most cases, at the base of the spine.”).
-8-

6) when Dr. Brooks saw Plaintiff on May 9, 2018, Plaintiff
again “express[ed] sort of the same fears about . . . having fusion
surgery at his age” (id.), so Dr. Brooks “recommended [Plaintiff]
go see Dr. Dumonski” (id. at 7; see also id. at 7-8 (“[Dr.
Brooks’s] current plan was [for Plaintiff to get a] second opinion,
and then he was going to come back and see [Dr. Brooks]. . . .
[However, Dr. Brooks] d[id]n’t even know if [Plaintiff had] gotten
approval for the second opinion yet.”)).
Lastly, the attached transcript excerpt from Dr. Lewit’s
deposition on June 27, 2018, features this testimony:
1) at an office visit, Plaintiff reported that “he felt his
milder headaches were more frequent” (Docket Entry 32-3 at 2); and
2) “[h]eadaches, by their very nature, are variable” (id.; see
also id. (“That’s always the case. . . .
isn’t entirely clear.

Now, why the variability

That may go to exacerbating factors to some

extent, [like] . . . weather changes.

Stress is the number one

thing that tends to exacerbate headaches of any kind . . . .
Sometimes patients will deny anything different going on in their
lives and the headache just fluctuates and worsens.

It’s . . .

just the nature of the disorder.”)).
This showing does not establish good cause for the requested
physical examination.

As an initial matter, the record material

cited by Defendant does not support its core thesis, i.e., that,
“by the time of trial, [Plaintiff’s] medical condition likely will

-9-

not be accurately reflected in the medical records and testimony
previously
(emphasis

provided

during

added)).

In

discovery”

that

regard,

(Docket
Dr.

Entry

30

Brooks’s

at

2

testimony

(detailed above) indicates that (1) clinical testing of Plaintiff
performed more than a year after his last prior appointment “still
did not show signs of [a spinal cord disorder]” (Docket Entry 32-2
at 4 (emphasis added)), (2) subsequent MRIs of Plaintiff’s cervical
and lumbar spine revealed no “significant differences from his
previous MRIs” (id. at 6), and (3) further discussion between
Plaintiff and Dr. Brooks did not alter Plaintiff’s long-standing
“fears about . . . having fusion surgery at his age” (id.).

In

other words, two years after Plaintiff’s fall on the job, Dr.
Brooks

found

(through

both

physical

examination

and

advanced

diagnostic technology) that Plaintiff’s spine-related conditions
had remained stable for at least a year and that his ambivalence
about surgical options likewise had not changed. Given that static
history, the mere fact that Dr. Brooks referred Plaintiff for a
second opinion (which he may or may not have pursued) (see id. at
7-8)4 simply does not warrant the conclusion that, “by the time of
trial,

his

medical

condition

likely

will

not

be

accurately

reflected in the medical records and testimony previously provided
during discovery” (Docket Entry 30 at 2 (emphasis added)).

4

According to Plaintiff’s Response, he “has not seen or
treated with [Dr. Dumonski].” (Docket Entry 35 at 6.)
-10-

Similarly,

no

such

conclusion

reasonably

could

rest

on

Defendant’s (above-discussed) evidence of Plaintiff seeing Dr.
Lewit on a roughly quarterly basis for treatment of headaches (see
Docket Entry 32-1 at 4) and of Plaintiff (in one such visit)
reporting that “his milder headaches were more frequent” (Docket
Entry 32-3 at 2 (emphasis added)), particularly given Dr. Lewit’s
explanation that “[h]eadaches, by their very nature, are variable”
(id.), that variability “always” accompanies headaches (id.), that
conditions

as

ephemeral

as

“weather

changes”

and

“[s]tress”

regularly “exacerbate headaches” (id.), and that, even absent any
apparent trigger, “headache[s] just fluctuate[]” (id.).

To the

contrary, this record material shows a consistent pattern of
Plaintiff seeking routine care for a condition that, by its “very
nature” (id.), often (and inexplicably) varies, but as to which (as
far as the evidence indicates) he only once reported any change
(and then solely as to the frequency of “milder headaches”) (id.).
If the Court found good cause for a physical examination based on
that sort of showing, no plaintiff who complains of headaches
possibly could escape a physical examination on the eve of trial.
Adopting a standard with such sweeping implications would conflict
with

the

Supreme

Court’s

construction

of

the

“good-cause

requirement [as] not a mere formality, but [as] a plainly expressed
limitation,” Schlagenhauf, 379 U.S. at 118, and of “Rule 35[ as]
requir[ing] discriminating application by the trial judge,” id.

-11-

Accordingly, the Court sustains “Plaintiff[’s] object[ion] to
the [requested physical] exam as . . . no foundation as to the
necessity of the exam has been specifically shown in this case”
(Docket Entry 35 at 3; see also id. at 6 (“Defendant has not shown
any evidence that the [existing] discovery, testimony and [medical]
records are insufficient to show [ P]laintiff’s condition at trial
. . . .”)).

See Schlagenhauf, 379 U.S. at 118 (holding that “good

cause” standard of Fed. R. Civ. P. 35(a) requires “affirmative
showing by the movant”); Maha Prabhu, 2008 WL 2559417, at *2
(“[[T]he part[y moving for a physical or mental examination] must
show necessity . . . .”).
harbored

concerns

about

Moreover, to the extent Defendant

material

changes

in

Plaintiff’s

back

condition, headaches, or other claimed injuries, mechanisms exist
for Defendant to “obtain the desired information by other means
[than a compelled physical examination],” Schlagenhauf, 379 U.S. at
118.

To begin, as documented in the Introduction, the parties

exchanged initial disclosures, including:
1) “the name and, if known, the address and telephone number
of each individual likely to have discoverable information – along
with the subjects of that information – that the disclosing party
may use to support its claims or defenses, unless the use would be
solely for impeachment,” Fed. R. Civ. P. 26(a)(1)(A)(i);
2) “a copy – or a description by category and location – of
all documents[ or] electronically stored information . . . that the

-12-

disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be
solely for impeachment,” Fed. R. Civ. P. 26(a)(1)(A)(ii); and
3) “a computation of each category of damages claimed by the
disclosing party – who must also make available for inspection and
copying as

under

[Federal] Rule

[of

Civil

Procedure]

34

the

documents or other evidentiary material, unless privileged or
protected from disclosure, on which each computation is based,
including materials bearing on the nature and extent of injuries
suffered,” Fed. R. Civ. P. 26(a)(1)(A)(iii) (emphasis added).5
“In addition to the disclosures required by [Federal] Rule [of
Civil

Procedure]

26(a)(1)[(A)(i)-(iii)],

[Plaintiff

had

to]

disclose to [Defendant] the identity of any [expert] witness

5

Defendant also undoubtedly served interrogatories and
requests for production under Federal Rules of Civil Procedure 33
and 34, to discover not only medical evidence on which Plaintiff
might rely to support his claim(s) against Defendant (the
disclosure of which Federal Rule of Civil Procedure 26(a)(1)(A)
already mandated), but also medical evidence that might undercut
Plaintiff’s claim(s) against Defendant. See generally Sherlock v.
Fontainebleau, 229 F. Supp. 3d 1277, 1282 (S.D. Fla. Jan. 18, 2017)
(“To be sure, a defendant is entitled to the production of medical
records that have a logical connection to the [p]laintiff’s claim
of injuries.” (internal brackets and quotation marks omitted)).
Consistent with that supposition, the excerpts from Dr. Brooks’s
deposition
transcript
reveal
that
(during
questioning
by
Defendant’s counsel) Dr. Brooks asked Defendant’s counsel if he
“ha[d certain] notes” from Plaintiff’s appointments on April 4 and
May 9, 2018, and that (when Defendant’s counsel answered in the
negative) Dr. Brooks offered to “print those out” and then did so.
(Docket Entry 32-2 at 2; see also id. at 2-4 (discussing notes in
question, including contents that appeared to bolster defense as to
severity of Plaintiff’s alleged back injury).)
-13-

[Plaintiff] may use at trial,” Fed. R. Civ. P. 26(a)(2)(A), as well
as “a written report – prepared and signed by . . . [any witness]
retained or specially employed to provide expert testimony,” Fed.
R. Civ. P. 26(a)(2)(B); see also id. (“The report must contain:
(i) a complete statement of all opinions the witness will express
and the basis and reasons for them; [and] (ii) the facts or data
considered by the witness in forming them[] . . . .”), and, for any
other expert witness (such as a treating physician), a description
of “the subject matter on which the witness is expected to present
evidence . . . and a summary of the facts and opinions to which the
witness is expected to testify,” Fed. R. Civ. P. 26(a)(2)(C)
(internal subpart number omitted).6

Further:

ha[ving] made [his] disclosure[s] under [Federal] Rule
[of Civil Procedure] 26(a) . . . [and] ha[ving] responded
to an[y] interrogatory[ and/or] request for production
[served by Defendant], . . . [Plaintiff had to]
supplement or correct [his] disclosure or response . . .
in a timely manner if [he] learn[ed] that in some
material respect the disclosure or response [wa]s
incomplete or incorrect, and if the additional or
corrective information ha[d] not otherwise been made
known to [Defendant] during the discovery process or in
writing . . . .

6

Notably (as detailed in the Introduction), after Plaintiff
made the above disclosures (and Defendant deposed Plaintiff and Dr.
Brooks), Defendant stated that it would not “introduc[e] expert
testimony from any retained expert. . . . [Instead, Defendant]
reserve[d] the right to introduce expert testimony from any of the
treating physicians [Plaintiff] identified . . . relate[d] to their
treatment and care of [him] and their knowledge and opinion of his
medical condition.” (Docket Entry 35-1 at 2.)
-14-

Fed. R. Civ. P. 26(e)(1).7
to

provide

information

Finally, “[i]f [Plaintiff has] fail[ed]
or

identify

a

witness

as

required

by

[Federal] Rule [of Civil Procedure] 26(a) or (e), [he] is not
allowed to use that information or witness to supply evidence
.

.

.

at

[his]

trial,

unless

justified or is harmless.”

the

failure

was

substantially

Fed. R. Civ. P. 37(c)(1).

To summarize:
1) Plaintiff has disclosed any witnesses and/or records that
support his claims, see Fed. R. Civ. P. 26(a)(1)(A)(i) & (ii);
2) Plaintiff has disclosed his damages computation, along with
“materials bearing on the nature and extent of injuries suffered,”
Fed. R. Civ. P. 26(a)(1)(A)(iii);
3) Plaintiff has disclosed reports explaining the testimony of
any

medical

experts

he

has

retained,

see

Fed.

R.

Civ.

P.

26(a)(2)(B), as well as a summary of any testimony his treating
physicians

will

give,

see

Fed.

R.

Civ.

P.

26(a)(2)(C),

and

Defendant has declined to contest that testimony with any expert
evidence of its own (see Docket Entry 35-1 at 2);
4) since making the foregoing disclosures (and responding to
any discovery demands from Defendant), Plaintiff has borne an

7

The Discovery Plan similarly requires “[s]upplementations
. . . within a reasonable time upon learning that a disclosure or
response to a discovery request is incorrect or incomplete in some
material respect.” (Docket Entry 12 at 2.)
-15-

obligation

to

supplement

them

if/when

they

became

materially

incomplete or incorrect, see Fed. R. Civ. P. 26(e)(1);8 and
5) Plaintiff may not use at trial any witness, document,
damages computation (or evidence bearing thereon), and/or retained
expert/treating

physician

testimony

that

he

did

not

properly

disclose (or include in a response to a discovery demand), absent
substantial justification or lack of prejudice to Defendant, see
Fed. R. Civ. P. 37(c)(1).
In

light

of

those

considerations,

if

Defendant

believed

Plaintiff had “receiv[ed] additional treatment for his alleged
injuries [after] the close of discovery, and . . . his physical
condition [had] change[d]” (Docket Entry 31 at 4), before seeking
to compel a physical examination, Defendant (at a minimum) should
have asked Plaintiff to supplement his disclosures and discovery
responses with any new medical information (particularly given
that, during the discovery period, Defendant expressed an intent to
rely on testimony from Plaintiff’s treating physicians in lieu of
disclosing its own medical expert).
have

sought

“depositions

of

Additionally, Defendant could

[Plaintiff’s]

expert

witnesses,

including treating doctors, . . . outside the discovery period by
stipulation of the parties or by order of the Court on good cause
shown no later than 21 days prior to trial.”

8

(Docket Entry 12 at

Plaintiff’s Response acknowledges his “continual duty to
supplement if there is a significant or material change in his
physical or mental condition.” (Docket Entry 35 at 7.)
-16-

2.)9

Simply put, “good cause does not exist [for the requested

physical examination because] the desired information could have
been obtained through less invasive tools of discovery,” Maha
Prabhu, 2008 WL 2559417, at *2.
As a final matter, in finding good cause lacking here, the
Court has carefully considered Defendant’s contention that “courts
and commentators agree that, in circumstances where the plaintiff’s
physical condition is at issue and may change between discovery and
trial, a physical examination prior to trial is warranted” (Docket
Entry 31 at 4 (emphasis added)).

To support that contention,

Defendant cited Perez v. Viens, No. 4:09CV3206, 2011 WL 855673 (D.
Neb. Mar. 8, 2011) (unpublished), and 8B Charles Alan Wright et
al., Federal Practice and Procedure § 2234 (3d ed. 1998 & Nov. 2018
supp.). (Docket Entry 31 at 4.)

Upon review, those authorities do

not entitle Defendant to a physical examination of Plaintiff.
Regarding

Perez,

Defendant

relied

on

language

therein

“‘find[ing] “good cause” exist[ed] for [a medical] exam since,
based on the deposition testimony of [the plaintiff] and [his
disclosed expert/physician] and the length of time since his last
examination

the

nature

of

[the

plaintiff’s]

current

physical

limitations are at issue and worthy of an update.’” (Id. (emphasis
added) (parenthetically quoting Perez, 2011 WL 855673, at *2).)

9

Defendant may take a second deposition of a previously
deposed treating physician by stipulation of the parties or with
leave of the Court. See Fed. R. Civ. P. 30(a)(2)(A)(ii).
-17-

However, Defendant

failed

to

note

that,

in

Perez,

the

court

determined that the deposition testimony of the plaintiff and his
disclosed expert/physician provided good cause for a physical
examination (when combined with “the length of time that ha[d]
passed since [the plaintiff’s] last examination,” Perez, 2011 WL
855673, at

*4),

because

of

“the

differing

testimony

of

[the

plaintiff] and his [disclosed expert/]physician,” id. (emphasis
added).

Defendant has pointed to no similar conflict between the

testimony of Plaintiff and of his disclosed experts/physicians.
(See Docket Entry 30 at 1-3; Docket Entry 31 at 1-5; Docket Entry
36 at 1-9.)

That material distinction between the record in Perez

and the record in this case renders the good cause ruling in Perez
of no value in making a good cause ruling in this case.
Nor does the Court find persuasive Defendant’s quotation from
Federal Practice and Procedure that, “‘if permanent injuries are
claimed

most

courts

will,

on

request,

allow

an

additional

examination shortly before the trial.’” (Docket Entry 31 at 4
(quoting 8B Wright et al., supra, § 2234) (internal alteration
omitted).)

As authority for that broad proposition, Federal

Practice and Procedure only cites (and quotes) two half-century-old
cases.

See 8B Wright et al., supra, § 2234 n.10 (citing and

quoting Lewis v. Neighbors Constr. Co., 49 F.R.D. 308, 309 (W.D.
Mo. 1969), and Vopelak v. Williams, 42 F.R.D. 387, 389 (N.D. Ohio
1967)).

The Court deems those two decisions unhelpful to the

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resolution of Defendant’s instant Motion, because the discovery
landscape has changed dramatically in the intervening five decades.
For example, at the time of the rulings in Lewis and Vopelak,
the Federal

Rules

of

Civil

Procedure

did

not

“state

whether

interrogatories . . . as well as requests for inspection . . .
impose a ‘continuing burden’ on the responding party to supplement
his answers if he obtains new information.”

Fed. R. Civ. P. 26

advisory comm.’s note, 1970 amend., subdiv. (e).

Similarly, not

until 1970 did the Federal Rules of Civil Procedure make clear
that, during the discovery process, “[a] party can require one who
intends to use [an] expert to state the substance of the testimony
that the expert is expected to give.”

Fed. R. Civ. P. 26 advisory

comm.’s note, 1970 amend., subdiv. (b)(4).

Moreover, after the

decisions in Lewis and Vopelak, roughly a quarter of a century
passed before the (previously discussed) disclosure requirements
came into the Federal Rules of Civil Procedure.

See Fed. R. Civ.

P. 26 advisory comm.’s note, 1993 amend., subdiv. (a).

Those

changes directly impact the analysis of good cause for a physical
examination (particularly Defendant’s request in this case), as
(for reasons outlined above) the disclosure and supplementation
provisions of the Federal Rules of Civil Procedure have markedly
enhanced “[t]he ability of [Defendant] to obtain the desired
information [about Plaintiff’s alleged injuries] by other means,”
Schlagenhauf, 379 U.S. at 118.

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In sum, the instant Motion lacks merit, because the record
material marshaled by Defendant does not establish a reasonable
need

for

a

reappraisal

of

Plaintiff’s

alleged

injuries

and

Defendant possessed tools less intrusive than a compelled physical
examination to secure information about any developments concerning
Plaintiff’s alleged injuries.10
CONCLUSION
Under the circumstances presented, the Court does not find the
requisite “good cause,” Fed. R. Civ. P. 35(a)(2), for the requested
physical examination.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
Physical Examination of Plaintiff (Docket Entry 30) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 26, 2019

10

Having so concluded, the Court will not address Plaintiff’s
alternative “object[ions] to the [requested] exam as untimely as it
is outside time limits of the discovery period, [as] . . .
prejudicial to [ P]laintiff due to medical testimony having been
already secured[,] and finally[ as] . . . lack[ing in] specificity
as to the examinations [sic] details” (Docket Entry 35 at 3).
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