DeGroot et al v. Kuipers
Filing
27
ORDER granting 17 Motion to Compel. Discovery due 12/22/2014; motions due 1/22/2015. Signed by U.S. District Judge Karen E. Schreier on 8/22/2014. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
STEVEN DEGROOT,
CIV. 13-4089-KES
Plaintiff,
ORDER
vs.
WENDELL JOHN KUIPERS,
Defendant.
Defendant, Wendell John Kuipers, moves to compel an independent
medical examination under Rule 35 and to extend the expert disclosure
deadline. Plaintiff, Steven DeGroot, agrees to submit to an independent
medical examination, but refuses to travel to Cedar Rapids, Iowa, for the
examination. The motion to compel is granted.
FACTS
DeGroot alleges that Kuipers was negligent in the operation of his motor
vehicle while driving on Interstate 90 in rural Aurora County, South Dakota.
DeGroot claims he suffered severe personal injuries as a result of Kuipers’
negligence. DeGroot is seeking past, present, and future damages for physical
impairment; pain and suffering; loss of enjoyment of the capacity of life;
emotional distress; loss of earning capacity; and other general and special
damages. Kuipers admits he was negligent, but denies his negligence was the
cause of DeGroot’s injuries. DeGroot lives in Orange City, Iowa, and filed his
case in South Dakota. Kuipers resides in Platte, South Dakota.
DeGroot was treated by Dr. John Pracyk, a neurosurgeon with The
Center for Neurosciences, Orthopaedics & Spine, located in Dakota Dunes,
South Dakota. DeGroot underwent an anterior cervical discectomy and fusion
at C5-6. Dr. Prayck has not provided any expert opinions attributing the
accident to the need for neck surgery.
DeGroot designated Dr. Gonzalo M. Sanchez, a retired neurosurgeon, as
an expert witness. Dr. Sanchez retired from private practice in Pierre, South
Dakota and is now residing in Tucson, Arizona. Dr. Sanchez reviewed
DeGroot’s medical records and opines that DeGroot’s neck surgery was related
to the automobile accident. Additionally, Dr. Sanchez opines that future neck
surgery is potentially required and that DeGroot suffered a 10 percent whole
person impairment as a result of the accident.
Kuipers requested that DeGroot attend an IME to be conducted by
Dr. Chad D. Abernathy, a neurosurgeon in Cedar Rapids, Iowa, at a date
convenient for DeGroot. Kuipers has offered to compensate DeGroot for his
travel expenses. Cedar Rapids, Iowa, is 279 miles from Orange City, Iowa, and
both cities are in the same district—the Northern District of Iowa. DeGroot
objected to the request because he would have to take two days out of his
schedule to drive back and forth to Cedar Rapids including the time for the
IME. DeGroot also stated that his physical condition did not allow him to travel
that far. DeGroot asks that Dr. Abernathy be required to travel to Sioux Falls
at Kuiper’s expense.
-2-
DISCUSSION
1.
Standard Applicable to Rule 35 Motions
Rule 35 of the Federal Rules of Civil Procedure provides in pertinent part
as follows:
(a)
Order for an Examination.
(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 custody or under
its legal control.
(2) Motion and Notice; Contest 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.
See Fed. R. Civ. P. 35(a). Once the examination has been performed, the
examiner must produce a written report that details his examination findings
including diagnoses, conclusions, and the results of any tests. See Fed. R. Civ.
P. 35(b). This report must be made available to the party who submitted to the
examination. Id. No patient-physician privilege applies to the report of the
independent examination. Id.
A party seeking an order for a Rule 35 IME must show two things: (1)
that the plaintiff has put his physical or mental condition “in controversy” and
(2) that there is “good cause” for the IME. Schlagenhauf v. Holder, 379 U.S.
104, 117-118 (1964). The movant must show that “the condition as to which
the examination is sought is really and genuinely in controversy and that good
cause exists for ordering each particular examination.” Id. at 118. A mere
-3-
showing of relevancy is insufficient to establish “good cause.” Id. In addition,
the court should consider whether the desired information can be obtained by
other means than an IME. Id.
Even if a physical examination is warranted under Rule 35, the moving
party has no absolute right to compel that examination by a particular
physician of its own choosing. McKitis v. Defazio, 187 F.R.D. 225, 227 (D. Md.
1999); Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa. 1990); 8B
Charles A. Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and
Procedure, § 2234.2 at 276 (2010) (hereinafter “Wright & Miller”). But generally,
the movant is permitted to select the physician to conduct the examination,
absent a finding of bias or prejudice. 8B Wright & Miller § 2234.2 at 276
(2010); Holland v. United States, 182 F.R.D. 493, 494-495 (D.S.C. 1998)
(refusing plaintiff’s request that the court appoint someone other than
defendant’s chosen physician to conduct the exam where there was no showing
of personal bias on the part of defendant’s physician nor any allegation that the
physician would use discredited or harmful techniques to examine the
plaintiff); Defazio, 187 F.R.D. at 227 (ordering IME with defendant’s chosen
physician where plaintiff raised no issues as to that physician’s qualifications
to conduct the IME).
The reason for such an approach is that the plaintiff is allowed to select
his or her own doctor to testify as to the plaintiff’s physical condition, so
fairness dictates that the defendant has a similar right. 8B Wright & Miller
-4-
§ 2234.2 at 274. Rule 35 is “to be accorded a broad and liberal treatment, to
effectuate the purpose [of the rules of civil procedure] that civil trials in the
federal courts no longer need be carried on in the dark.” Schlagenhauf, 379
U.S. at 114-115; Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 690 (10th Cir.
2007).
DeGroot’s objections to Dr. Sanchez’s examination of him have nothing
to do with Dr. Sanchez’s qualifications nor does DeGroot make any allegations
of bias or prejudice. Rather, DeGroot objects to the examination on the basis
that Dr. Sanchez is too far away from DeGroot’s home, and the examination
would require DeGroot to travel approximately 560 miles round trip, which
would place a physical and financial hardship on him. He argues that his neck
injury is aggravated when he drives for long periods. As a result, he limits his
driving time to approximately one hour so he can stop and stretch his neck and
shoulders. Given his health conditions, DeGroot argues that he could not drive
to and from Cedar Rapids in one day. As a result, he would lose two days of
income.
A similar issue was discussed by the Arkansas Supreme Court in Reed
v. Marley, 321 S.W.2d 193 (Ark. 1959). In that case, the defendant requested
an order requiring plaintiff to attend an IME in Tulsa, Oklahoma, even though
the case was venued in Arkansas. Id. at 194. The court held that the mere
fact that the IME requested was out of state did not, by itself, render the
request unreasonable. Id. at 195. Indeed, as in this case, the court noted that
the plaintiff could be required to attend an IME on the other side of the
-5-
district in Arkansas (where the case was venued) that would require travel of
much greater distances than the IME requested in Tulsa. Id. at 195.
Courts have required plaintiffs to travel great distances in order to attend
IMEs in the district where they had elected to venue their case, and to do so at
their own expense. See McCloskey v. United Parcel Serv. Gen. Serv. Co., 171
F.R.D. 268 (D. Or. 1997). See also Blount v. Wake Elec. Membership Corp., 162
F.R.D. 102, 106-107 (E.D.N.C. 1993) (holding that defendants could compel
plaintiff to undergo an IME in the judicial district where the case was venued,
or in the judicial district where the plaintiff resided). Under the same-districtas-the-forum analysis in the McCloskey and Blount cases, DeGroot could
clearly be required to attend an IME in Rapid City, South Dakota, as that
would be in the same district as the forum where he elected to venue his case.
This would, of course, require DeGroot to travel a much greater distance–
approximately 415 miles one way–in order to attend such an IME. Instead,
Kuipers is requesting DeGroot to submit to an IME in Kuipers’ own district at a
distance of 279 miles away. This is not an unreasonable request.
DeGroot alleges he will suffer an “undue hardship” because his physical
condition makes it difficult for him to travel and he will incur two days of lost
wages because of the travel distance combined with his need for frequent
stops. While DeGroot’s physical condition may make it difficult for him to
travel, the same physical condition existed when he chose to travel to Mexico
for an eight-day trip after the accident. DeGroot argues that this trip occurred
after the accident but before his cervical discectomy and fusion and as a result
-6-
his condition is different now. DeGroot has failed to convince the court,
however, that the surgery made his condition worse for traveling than before.
DeGroot’s physical condition does not appear to the court to preclude a 279
mile trip for an IME.
With regard to the alleged financial hardship arising from the fact that
DeGroot will lose income from two days of work instead of only one if the IME
took place at a closer location, the court agrees that the cost to DeGroot will in
fact be increased. But DeGroot has not articulated the amount of the
additional lost income nor has he made a showing that the one additional day
of lost income would rise to the level of an undue financial hardship. See
McCloskey, 171 F.R.D. at 270 (plaintiffs failed to show $15,000 travel cost
constituted undue financial hardship). Without a showing of undue hardship,
the court concludes that it is not unreasonable to require DeGroot to travel to
Cedar Rapids for the IME as requested by Kuipers.
2.
Form of the Motion
Rule 35 specifies that, in making a motion for an IME pursuant to the
rule, the movant “must specify the time, place, manner, conditions, and scope
of the examination, as well as the person or persons who will perform it.”
Kuipers’ motion specifies the place of the examination and the identity and
specialty of the person who will perform the IME, but fails to fill in the other
details required by the rule.
Rather than supplying those details by fiat, the court prefers to allow the
parties an opportunity to arrange the time, place, manner, and conditions of
-7-
the IME with Dr. Sanchez in a fashion that is mutually agreeable to everyone
with the caveat that the IME must be completed within 60 days. Accordingly,
the court leaves the remainder of the details to the parties to work out between
themselves. If the parties are unable to reach agreement as to these details,
they may contact the court and the court will supply the details by further
order.
3.
Extension of Deadlines
For good cause shown, Kuipers’ expert witness disclosure deadline is
extended to November 24, 2014. All discovery, including expert discovery, will
be completed by December 22, 2014. All motions, other than motions in
limine, will be filed and served by January 22, 2015.
CONCLUSION
Kuipers’ motion to compel a Rule 35 IME with Dr. Sanchez (Docket 17) is
granted as discussed more fully above. Upon presentation of appropriate
documentation for the same, Kuiper shall pay the costs of DeGroot’s travel to
attend this deposition, including mileage, lodging, and meals. Kuipers’ motion
to extend deadlines (Docket 17) is also granted.
Dated August 22, 2014.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?