Price et al v. U.S. Gear Tools, Inc. et al

Filing 93

ORDER granting 66 Motion to Compel. The Court DIRECTS Plaintiff Teresa Price to appear for a physical examination pursuant to Rule 35 at a time and location in Asheville that the parties mutually agree upon. See Order for further instruction. Signed by Magistrate Judge Dennis Howell on 5/5/2016. (kby)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:15cv35
TERESA S. PRICE and THOMAS
H. PRICE,

)
)
)
Plaintiffs,
)
)
v.
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U.S. GEAR TOOLS, INC., et al.
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)
Defendants.
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___________________________________ )

ORDER

Pending before the Court is the Motion to Compel Rule 35 Examination of
Plaintiff [# 66]. Defendants move for the entry of an order pursuant to Rule 35 of
the Federal Rules of Civil Procedure authorizing a physical examination of
Plaintiff Teresa Price. On April 21, 2016, the Court held a hearing and orally
granted the motion. The Court now enters this Order to memorialize its April 21,
2016, oral Order.
I.

Analysis

Rule 35 of the Federal Rules of Civil Procedure provides that the Court may
order a party whose physical or mental condition is in controversy to submit to an
examination by a suitably licensed or certified examiner. Fed. R. Civ. P. 35(a)(1).
The Court may order such an examination upon a motion demonstrating good
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cause for the examination and after providing notice to all parties and the person
subject to the examination. Fed. R. Civ. P. 35(a)(2)(A). Upon a review of the
record, the parties’ pleadings, and after the benefit of oral argument at the hearing,
the Court finds that Defendants have set forth good cause for a physical
examination of Plaintiff Teresa Price. The Second Amended Complaint contains a
number of allegations concerning Plaintiff Price’s cancer. (Sec. Am. Compl. ¶¶
44-48, ECF No. 85.) Moreover, the Amended Complaint alleges damages, which
suggest that Plaintiff Price’s physical condition will be at issue in this dispute;
Plaintiff has not limited her claim of damages to a decrease in property value and
the loss of use and enjoyment of the property. (Id. at ¶¶ 68-70, 75, 81. 103-04,
107.) By placing Plaintiff Price’s physical condition at issue, the Court finds that
a Rule 35 physical examination is appropriate in this case, and Defendants have
demonstrated good cause for the entry of an Order directing a physical
examination of Plaintiff Price. The Court also finds that Dr. Brian Forrester is a
board certified specialist in Occupational Medicine and is well-qualified to
perform the examination.
The Court DIRECTS Plaintiff Teresa Price to appear for a physical
examination pursuant to Rule 35 at a time and location in Asheville that the parties
mutually agree upon. If the parties are unable to agree upon a time and place to
conduct the examination, the Court will set the time, date, and location of the
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examination. Dr. Forrester shall perform the physical examination, which is
limited to three hours. Dr. Forrester may obtain a full medical history of Plaintiff
Price as set forth in Defendants’ motion. In addition, the examination will be
observed by a female not affiliated with any law firm who will be physically
present in the examining room during the entirety of the exam.
II.

Conclusion

Consistent with the terms as set forth in this Order, the Court GRANTS the
motion [# 66].

Signed: May 5, 2016

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