NEWILL v. CAMPBELL TRANSPORTATION COMPANY, INC.

Filing 58

MEMORANDUM ORDER re: the scheduled Rule 35 examination of Plaintiff. The parties must go forward with the Rule 35 examination on Monday, July 28, 2014 as originally agreed upon. Full compliance with all of the requirements of Rule 35 is expected, inc luding the requirement that a detailed report of the Ms. Costantinis findings be made available to Plaintiff upon his request and on or before July 31, 2014 the cut-off date for the disclosure of CTCs expert reports. Furthermore, the telephonic conference scheduled for 10:30 a.m. on 7/25/2014 is cancelled, unless counsel for the parties determine that the conference is still necessary, even in light of this Memorandum Order. Signed by Judge Terrence F. McVerry on 7/25/2014. (rjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 2:12-cv-1344
v.
)
CAMPBELL TRANSPORTATION COMPANY, )
INC.,
)
Defendant.
)
)
)
MEMORANDUM ORDER
July 25th, 2014
THOMAS JAMES NEWILL,
Plaintiff,

This discovery dispute centers on CTC’s desire to have Plaintiff examined by a
vocational expert, Patricia Costantini, under Fed. R. Civ. P. 35. Plaintiff does not object the
examination per se. Rather, he has conditioned his attendance on the receipt of certain assurances
from Defense counsel, namely that counsel agree “to produce Costantini’s report, one which
includes her opinions as Rule 35(b)(2) requires, and to do so at the time CTC’s expert reports are
due on July 31, 2014 (not two years later), to do so at CTC’s cost, and to produce the report
regardless of whether CTC intends to call Ms. Costantini as an expert.” Counsel for CTC has
refused to provide the requested assurances, on the basis that Rule 35 “does not provide for
preemptive action such as that demanded by counsel for Plaintiff.”
The Court agrees with CTC. Nothing in the language of Rule 35 or the case law and
commentary interpreting the rule suggests that one party can condition attendance at an
examination on the other party’s assurance that it will comply with the Rules exchange-ofreports requirement. Simply put, it is assumed that the parties will comply with their discovery
obligations, and the specter of sanctions is intended to ensure compliance. Thus, the Court is not
going to require CTC’s counsel to make the assurances requested by Plaintiff’s counsel. If
Plaintiff’s counsel continues to refuse to make his client available for the examination, then the
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Court, upon motion by CTC, will order that Plaintiff be made available for the scheduled exam.1
On the other hand, if Plaintiff requests a copy of the report regarding Ms. Costantini’s
“findings, including diagnoses, conclusions, and the results of any tests” and CTC does not
comply with such request, the Court, upon timely motion by Plaintiff, will order CTC to furnish
the report, regardless whether Ms. Costantini will be called to testify as a witness at trial. See
Fed. R. Civ. P. 35(b)(1) and (5). Furthermore, the Court recognizes the concerns of Plaintiff’s
counsel regarding the potentiality of gamesmanship – for example, requiring Plaintiff to submit
to an interview that turns out to be unfavorable for CTC and then prevailing upon Ms. Costantini
to not prepare a report of the examination. The Court will not condone that sort of behavior.
While the Court cannot order Ms. Costantini, a non-party, to prepare a report, CTC certainly has
an implied duty to ensure that she does if requested by Plaintiff – and it is clear that a request
will be forthcoming. “Should [she] fail to prepare a report, [Plaintiff] may file a motion in this
Court for such other relief as the Court may find is then warranted.” Salvatore v. Am. Cyanamid
Co., 94 F.R.D. 156, 159 (D.R.I. 1982). Not only could Ms. Costantini be precluded from
testifying at trial (assuming that CTC intends to designate her as an expert who will testify at
trial), but also “[s]erious sanctions” may result if the Court finds that CTC “collusively obtained”
Ms. Costantini’s failure to prepare a report in order to keep her findings from Plaintiff. Id. at 158
n.3; Fed. R. Civ. P. 35(b)(5).
To reiterate, the parties must go forward with the Rule 35 examination on Monday, July
28, 2014 as originally agreed upon. Full compliance with all of the requirements of Rule 35 is
expected, including the requirement that a detailed report of the Ms. Costantini’s findings be
made available to Plaintiff upon his request and on or before July 31, 2014 – the cut-off date for
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The Court recognizes that if it comes to this, CTC may need an extension of time within
which to serve its expert reports, which are currently due by July 31, 2014.
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the disclosure of CTC’s expert reports. Failure to comply with that requirement may result in the
imposition of appropriate sanctions.
SO ORDERED, this 25th day of July, 2014.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge

cc:

Frederick B. Goldsmith, Esquire
Email: [e-mail]
Dennis A. Watson, Esquire
Email: [e-mail]
Ruth M. Gunnell, Esquire
Email: [e-mail]

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