Magnuson v. Jackson et al
Filing
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OPINION AND ORDER by Magistrate Judge Paul J Cleary (Re: 51 MOTION Motion for an Order Requiring Plaintiff to submit to a physical examination by Dr. John Hastings ) (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
VICKI MAGNUSON,
Plaintiff,
v.
MICHELLE JACKSON and
ALLSTATE FIRE & CASUALTY
INSURANCE COMPANY,
Defendants.
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Case No. 11-CV-561-CVE-PJC
OPINION AND ORDER
Before the Court is Defendant Jackson’s Motion for Physical Examination
(“Jackson’s Motion”). [Dkt. No. 51]. Jackson seeks a physical examination of
Plaintiff Vicki Magnuson. Jackson requests that this examination take place at 10
a.m. on June 7, 2012, at the office of Dr. John Hastings, 6802 South Olympia
Avenue, Suite 300, Tulsa. A hearing on Jackson’s Motion was held June 5, 2012.
For the reasons set forth below, the Motion is DENIED.
Discovery under the Federal Rules of Civil Procedure includes oral and
written depositions (Rules 26-32), interrogatories to parties (Rule 33), production
of documents (Rule 34) and physical and mental examinations of parties (Rule
35). Schlagenhauf v. Holder, 379 U.S. 104, 117 (1964). Thus, some courts have held
that Rule 35 exams must be “accomplished within the discovery deadline
established by the court.” Briesacher v. AMG Resources, Inc., 2005 WL 2105908, *1
(N.D.Ind. Aug. 31, 2005). See also, Miksis v. Howard, 106 F.3d 754, 758-59 (7th Cir.
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1997) (motion for examination filed after discovery deadline which had been
extended several times); Balzer v. Am. Family Ins. Co., 2010 WL 1838431, *1
(N.D.ind. May 6, 2010).
However, other courts have exercised discretion to allow a Rule 35
examination after discovery cutoff. E.g., Walton v. North Carolina Dept. of
Agriculture and Consumer Services, 2011 WL 883579 at *1, 4 (E.D.N.C. March 11,
20112) (granting motion to compel Rule 35 exam where motion filed before close
of discovery but examination to occur after discovery deadline); Impey v. Office
Depot, Inc., 2010 WL 2985071 at *19-21 (N. D. Cal. July 27, 2010) (allowing
examination after fact discovery deadline but prior to expert deadline); Allshouse
v. JBL Ltd., 2006 WL 517615 at *2 (S. D. Ill. March 2, 2006) (extending discovery
deadline and allowing Rule 35 exam). Often the court’s analysis is driven by the
specific facts and circumstances presented by the Rule 35 request. Creech v.
Stryker Corp., 2012 WL 33360, at *9-10 (D.Utah Jan. 6, 2012).
In January 2012, Defendants requested an extension of the deadlines in
this case. That request was made, among other reasons, to have an independent
medical examination of Plaintiff performed, if Defendants deemed that
necessary. [Dkt. No. 25, p. 3]. The Motion was granted and deadlines were
extended 90 days. [Dkt. No. 29]. The Amended Scheduling Order established a
deadline of April 26, 2012, for identification of Defendants’ expert witnesses and
production of their expert reports. [Dkt. No. 29, line 8]. The amended general
discovery cutoff was set for May 24, 2012. [Dkt. No. 29, line 3].
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At the June 5 hearing, Defendant Jackson explained that she requested a
physical examination of Plaintiff in May, but did not seek a Court Order as
required by Rule 35.1 Plaintiff informed Jackson she would not appear for that
exam because there was no Court Order in place. On May 23 – one day before
discovery cutoff and one month after the expert report deadline – Jackson filed
her motion for a Rule 35 exam. Counsel stated at the hearing that, if allowed, Dr.
Hastings would perform his exam, prepare an expert report, and be deposed in
anticipation of testifying as an expert witness at trial.
Jackson’s request comes too late. Jackson is well passed the deadline for
expert identification and reports and has offered little to justify reopening expert
discovery 90 days before trial. If Jackson had intended to use Dr. Hastings as an
expert she was required to identify him and produce his expert report by April
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Rule 35 provides:
(1) In General. The court where the action is pending may order a party whose
mental or physical condition--including blood group--is in controversy to submit
to a physical or mental examination by a suitably licensed or certified examiner.
The court has the same authority to order a party to produce for examination a
person who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and
the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it.
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24. That was not done. Furthermore, Jackson neither secured a Court Order as
required by Rule 35 nor conducted the physical exam before the general
discovery deadline. Thus, allowing a Rule 35 exam now would require
extending two deadlines. Finally, Jackson has an alternative method to assess
Plaintiff’s physical condition – Jackson has Plaintiff’s medical records and has
deposed her treating doctors.
Jackson asserts that Magnuson’s physical condition is in controversy, but
that has been true since the lawsuit was filed in August 2011. The Court
amended its Scheduling Order at Defendants’ request, extending the dates for
expert reports and discovery. Jackson failed to comply with those deadlines. To
allow a Rule 35 exam at this date would effectively extend the expert deadline by
six weeks or more. Allowing a belated expert report would prejudice Plaintiff by
forcing Plaintiff’s counsel to spend time on expert discovery and depositions at a
time when both sides should be honing their cases for trial. Jackson’s belated
request could force Plaintiff to secure a rebuttal expert, thereby endangering the
scheduled trial date.
ACCORDINGLY, the Motion for Physical Examination after the expert
and discovery deadlines is DENIED.
IT IS SO ORDERED this 5th day of June 2012.
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