Fitch v. BNSF Railway Company

Filing 107

ORDER by Magistrate Judge Clare R. Hochhalter granting 88 Motion to Compel Like Reports. (GW)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Morgan Fitch,
Plaintiff,
v.
BNSF Railway Company,
A Delaware Corporation
Defendant.

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ORDER GRANTING MOTION TO
COMPEL LIKE REPORTS
Case No.: 1:21-cv-00181

On September 7, 2023, Plaintiff Morgan Fitch (Fitch) filed a Motion to Compel Like
Reports. (Doc. No. 88). Fitch seeks an order requiring Defendant BNSF Railway Company
(BNSF) to produce reports of all earlier examinations of the same condition (“like reports”), from
each of its three Rule 35 examiners, Dr. Frederick T. Strobl, Dr. Melissa Castro, and Dr. Steven
Moen. (Id.). BNSF opposes Plaintiff’s motion. (Doc. No. 92).
I.

BACKGROUND
Fitch filed a complaint on September 22, 2021, alleging injury in the course and scope of

employment with BNSF. (Doc. No. 1). Fitch provides she was working as a member of a threeperson crew on a train traveling from Minot, North Dakota, to Rugby, North Dakota. (Id.). Fitch
claims the train went into an emergency stop unexpectedly and without warning. Fitch says she
was “thrown forward into the nose of the locomotive, and she suffered injuries to her right arm
and shoulder.” (Id.). Fitch claims the emergency stop was caused by the train’s airbrake system.
(Id.). Fitch alleges she,
suffered in the past and will suffer pain in the future; has incurred expenses for
medical treatment, and will incur further like expenses in the future; has suffered
loss of earnings and loss of future earning capacity; has suffered loss of [her]
enjoyment of life; and has suffered permanent injury and disability, all to her injury
and damage.

(Id.). The Court ordered Fitch to be examined by an orthopedic surgeon, neurologist, and
neuropsychologist following BNSF’s Rule 35 motion for examination. (Doc. No. 30). Thereafter,
Fitch requested copies of the examiners’ reports together with like reports. (Doc. No. 90-5).
II.

LEGAL STANDARD
Rule 35 of Federal Rules of Civil Procedure governs physical and mental examinations. FED.

R. CIV. P. 35(b)(1) provides that a party who moves for examination (BNSF) must, on request,
deliver to the requester (Fitch) a copy of the examiners’ reports, together with like reports of all
earlier examinations of the same condition. Rule 35(b) provides:
(b) Examiner’s Report.
(1) Request by the Party or Person Examined. The party who moved for the
examination must, on request, deliver to the requester a copy of the examiner’s
report, together with like reports of all earlier examinations of the same condition.
The request may be made by the party against whom the examination order was
issued or by the person examined.
(2) Contents. The examiner’s report must be in writing and must set out in detail
the examiner’s findings, including diagnoses, conclusions, and the results of any
tests.
(3) Request by the Moving Party. After delivering the reports, the party who moved
for the examination may request- and is entitled to receive- from the party against
whom the examination order was issued like reports of all earlier or later
examinations of the same condition. But those reports need not be delivered by the
party with custody or control of the person examined if the party shows that it could
not obtain them.
(4) Waiver of Privilege. By requesting and obtaining the examiner’s report, or by
deposing the examiner, the party examined waives any privilege it may have- in
that action or any other action involving the same controversy- concerning
testimony about all examinations of the same condition.
(5) Failure to Deliver a Report. The court on motion may order- on just terms- that
a party deliver the report of an examination. If the report is not provided, the court
may exclude the examiner’s testimony at trial.
(6) Scope. This subdivision (b) applies also to an examination made by the parties’
agreement, unless the agreement states otherwise. This subdivision does not
preclude obtaining an examiner’s report or deposing an examiner under other rules.
FED. R. CIV. P. 35(b)(1)-(6).

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Fitch, in turn is required to provide BNSF with available like reports of all earlier or later
examinations of the same condition, upon BNSF’s request, after BNSF delivers like reports to
Fitch. See FED. R. CIV. P. 35(b)(3).
III.

DISCUSSION

a. Like reports of all examinations of the same condition
Fitch seeks “reports from the Rule 35 examiners for all Rule 35 examinations they have
performed for the same condition the Doctor examined Plaintiff.” (Doc. No. 89). FED. R. CIV. P.
35(b)(1) provides that “[t]he party who moved for the examination must, on request, deliver to the
requester a copy of the examiner’s report, together with like reports of all earlier examinations
of the same condition.” (emphasis added). Fitch relies on Bryant v. Dillion Real Est. Co., Inc.,
No. 18-CV-00479-PAB-MEH, 2019 WL 3935174, (D. Colo. Aug. 20, 2019) for support. Bryant
held “the plain language of Rule 35(b)(1), together with the committee’s notes, demonstrate that
an examined party is entitled to production by the examiner of ‘all’ reports, to which the examiner
has access, regarding examinations of the same condition(s) suffered by the examined party (‘like
reports’).” Bryant, 2019 WL 3935174, at *4. Bryant referenced legislative history including the
1970 Advisory Committee Notes, instructing that “Rule 35(b) was amended to correct an
imbalance in Rule 35(b)(1) as heretofore written.” Id.; see FED. R. CIV. P. 35 advisory committee’s
note to 1970 amendment (internal quotation marks omitted). The advisory committee explained
that “the rule has not in terms entitled the examined party to receive from the party causing the
Rule 35(a) examination any reports of earlier examinations of the same condition to which the
latter many have access. The amendment cures this defect.” FED. R. CIV. P. 35 advisory
committee’s note to 1970 amendment.
Bryant found no cases interpreting whether Rule 35 refers to like reports of individuals
other than the examined party. Bryant, 2019 WL 3935174, at *4. However, the court noted the
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committee specifically stated the amendment allowing examined parties to obtain like reports from
examiners “embodies changes required by the broadening of Rule 35(a) to take in persons who
are not parties.” Id. (quoting FED. R. CIV. P. 35 advisory committee’s note to 1970 amendment)
(emphasis added). Those same committee notes are referenced by an oft-cited secondary source,
providing “[t]he party causing the examination to be made must also give to the person examined
similar reports of all earlier examinations of the same condition to which that party has access.”
8B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2237 (3d ed. 2010)
(emphasis added). This court agrees with Bryant and the affirmation provided by the Advisory
Committee Notes, finding Fitch is entitled to all “like reports” to which the examiners have access.
b. Overly broad and unduly burdensome request
Fitch requests the court compel BNSF to provide the following:
a. All reports created by Dr. Frederick T. Strobl in conjunction with Rule 35 testing
or examinations performed on other individuals prior to April 17, 2023, for the
same condition(s) Dr. Strobl examined Plaintiff. Including, but not limited to
testing or examinations for neurological injuries, head injury, or traumatic brain
injury;
b. all reports created by Dr. Melissa Castro in conjunction with Rule 35 testing or
examinations performed on other individuals prior to April 21, 2023, for the same
condition(s) Dr. Castro examined Plaintiff. Including, but not limited to testing or
examinations for psychological or neurological functioning; head injury, PTSD,
neuropsychological injuries, or traumatic brain injury; and
c. All reports created by Dr. Steven Moen in conjunction with Rule 35 examinations
performed on other individuals prior to April 17, 2023, for the same condition (s)
Dr. Moen examined Plaintiff. Including, but not limited to orthopedic testing and
examinations regarding head, neck, shoulders, biceps and back; and the brachial
plexus.
(Doc. No. 88). BNSF argues the requested production is overbroad and unduly burdensome (Doc.
No. 90-6), claiming each examiner would have to review all their reports to find like reports of the
same condition. (Doc. No. 93-95). BNSF does not substantiate its claims of overbreadth and undue
burden. For example, BNSF does not say whether or how many Rule 35 reports of any kind may
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exist, whether any Rule 35 reports are within the custody or control of BNSF, whether such reports
are stored and organized electronically, or whether any reports are searchable electronically or
manually. In Bryant, the court was not convinced production ‘‘is overly broad and unduly
burdensome’ since it ‘would require significant time on the part of [the doctor] and his staff’”
absent an explanation or more information. Bryant v. Dillion Real Est. Co., Inc., No. 18-CV00479-PAB-MEH, 2019 WL 3935174, at *5 (D. Colo. Aug. 20, 2019). Here too, the court is
unpersuaded production of like reports would be overly broad and unduly burdensome.
BNSF claims no reports were located after “a reasonable inquiry.” (Doc. No. 92, pg., 2,
n.1). BNSF does not say whether its inquiry included the examiners’ review of their records for
Rule 35 reports generally or like reports; whether BNSF reviewed its own communications and
records of all Rule 35 requests; or, whether BNSF inquired of its outside counsel whether any Rule
35 reports are available. BNSF admits outside counsel throughout the country maintain BNSF’s
litigation files, but BNSF provides no description of any relevant inquiry by phone, email or
otherwise. (Id.). The court is not persuaded a reasonable inquiry has been made.
BNSF should make inquiry of the three examiners and outside counsel. Likewise, BNSF
should search its own records, e.g., search for evidence of communications, agreements, or
payment of experts in connection with Rule 35 examinations that may have resulted in like reports
and that may be in the custody or control of BNSF, or others. An appropriate investigation may
uncover reports within BNSF’s custody or control that are available to BNSF, and it may identify
third parties having custody or control of like reports. Like reports identified as being held by third
parties outside BNSF custody or control may be available to Fitch using other rules as provided
in Rule 35(b)(6).
c. Discovery under FED. R. CIV. P. 26
Rule 26 provides the following with respect to the scope of discovery:
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Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposes discovery outweighs its likely benefit.
FED. R. CIV. P. 26(b)(1).
Fitch argues she is entitled to like reports as evidence that BNSF’s chosen doctors have a
history of bias against plaintiffs. (Doc. No. 96). BNSF claims the reports are not relevant to
whether Fitch sustained injuries and their only use is to uncover potential bias of the examiners,
something Fitch could uncover through other methods. (Doc. No. 92).
The court believes the credibility of any witness, including any bias, is always at issue and
always subject to attack. FED. R. EVID. 607. There may be any number of non-exclusive discovery
methods Fitch can reasonably employ to discover, investigate, expose, and support such bias,
including review of like reports.
d. Privilege
Rule 35(a)(1) limits the application of Rule 35 to those whose mental health or physical
condition are in controversy, or those in the custody or under the legal control of a party. FED. R.
CIV. P. 35(a)(1). Under Rule 35(b)(4), when a party examined requests and obtains the examiner’s
report, presumably from a party opponent who requested and likely paid for the examination “the
party examined waives any privilege it may have - in that action or any other action involving the
same controversy – concerning testimony about all examinations of the same condition.” FED. R.
CIV. P. 35(b)(4). Fitch asserts under the context of a Rule 35 examination she is not seeking
confidential or privileged information. (Doc. No. 89). BNSF claims non-party examinees’ waiver
of privilege should not extend to unrelated cases involving the same condition. See Cheff v. Am.
States Preferred Ins. Co, No. CV 22-18-M-KLD, 2023 WL 2330252, at *4 (D. Mont. March 2,

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2023). Cheff found “[u]nrelated non-parties plainly do not fall within the scope of this rule because
they have not placed their condition at controversy in this litigation.” Id. The court is unpersuaded
by Cheff, given the clear language and history of Rule 35. Once examinees use Rule 35 to request
and obtain a report from the party whose request for examination resulted in a report, the examinee
“waives any privilege it may have ─ in that action or any other action involving the same
controversy ─ concerning testimony about all examinations of the same condition.” FED. R. CIV.
P. 35(b)(4). Here, Fitch is only interested in Rule 35 reports involving the same controversy.
e. Confidentiality concerns
Fitch is not attempting to discover like reports for the purpose of identifying private
particulars. (Doc. No. 96). The court recognizes examinees’ privacy and confidentiality concerns
can survive notwithstanding a waiver of privilege. Rule 26(c) provides a pathway for parties or
persons to preserve confidentiality by agreement or by order of a court. Like reports may contain
private and personally identifiable information such as the examinees’ name, address, birthdate,
etc. Fitch is not attempting to discover such information. (Doc. No. 96). Accordingly, the parties
can explore whether any personal identifying information may be redacted from like reports and
whether good cause supports a protective order under Rule 26(c).
IV.

CONCLUSION
For reasons above, the Court GRANTS Fitch’s Motion to Compel Like Reports. (Doc. No.

88). BNSF should immediately work to obtain and disclose all relevant reports within its custody
or control.
IT IS SO ORDERED.
Dated this 5th day of February, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court

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