Landrum v. United States of America

Filing 65

ORDER granting in part and denying in part 56 Motion for an independent psychological examination. Signed by Chief Judge Jeffrey L. Viken on 5/21/18. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
BURNS LANDRUM,
Plaintiff,
vs.

CIV. 14-5088-JLV
ORDER

UNITED STATES OF AMERICA,
Defendant.
Plaintiff Burns Landrum initiated this action against defendant United
States seeking recovery under the Federal Tort Claims Act (“FTCA”). (Docket
51). On May 7, 2013, plaintiff was a passenger in a Disabled American
Veterans van that collided with another vehicle. Id. at p. 1. The collision
caused the van to roll. Id. Plaintiff alleges he suffered injuries and has been
diagnosed with post-traumatic stress disorder, a traumatic brain injury and
adjustment disorder. Id. at pp. 1-2. The parties are in the discovery phase of
the case.
The government filed a motion for an order requiring plaintiff to submit
to an independent psychological examination. (Docket 56). The government
wants Jennifer Geiger, a clinical psychologist and board-certified
neuropsychologist, to conduct the examination at her office in Louisville,
Colorado. (Dockets 57 & 58). Plaintiff, who lives in Rapid City, South Dakota,
opposes the motion because his own psychologist, Dewey Ertz, determined
traveling outside of Rapid City would “place [plaintiff] at severe emotional risk
and negatively impact his current symptom patterns.” (Docket 61-2 at p. 1);

(Docket 60). Dr. Ertz explains, “[p]lacing increased stress on [plaintiff] by
requiring that he travel out of Rapid City is also expected to result in reliability
and validity concerns for further assessment purposes.” (Docket 61-2 at p. 1).
The government argues that without a finding of bias or prejudice, the court
should permit its own neuropsychologist, Dr. Geiger, to conduct the
examination at her office. (Docket 62). Based on Dr. Geiger’s clinical schedule,
daily business management and supervision of a practicum student, Dr. Geiger
asserts she “cannot travel to Rapid City, South Dakota, to conduct an
independent psychological examination of Mr. Landrum.” (Docket 58 at p. 1).
Rule 35(a) is the applicable Federal Rule of Civil Procedure and it
provides:
(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 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.
Fed. R. Civ. P. 35(a). “A party seeking an order for a Rule 35 [examination]
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 [exam].”

2

Degroot v. Kuipers, No. CIV. 13-4089, 2014 WL 4198376, at *2 (D.S.D. Aug.
22, 2014) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 117-18 (1964)).
Plaintiff agrees with the government that his physical or mental condition
is in controversy. (Docket 60 at p. 1). Plaintiff is willing to undergo an
independent psychological examination with the government’s choice of
psychologist; he objects only to the process occurring anywhere beyond Rapid
City. Id. The court finds plaintiff’s physical or mental condition are in
controversy and good cause exists for the examination. Fed. R. Civ. P. 35(a)(1)
& (2)(A).
As the government highlights, “generally, the movant is permitted to
select the [person] to conduct the examination, absent a finding of bias or
prejudice.” Degroot, 2014 WL 4198376, at *2. But the issue here is more the
exam’s location than the examiner’s identity. The core of this dispute is
plaintiff will not travel to Colorado and Dr. Geiger claims she cannot come to
South Dakota. The government’s reply brief and Dr. Geiger’s declaration set
forth several points of disagreement with Dr. Ertz’s opinion. (Dockets 58 at
pp. 2-3 & 62 at pp 5-9). If this case proceeds to a court trial, the court will be
required to analyze all expert opinions entered into evidence. But at this stage
of the case, in the context of a discovery dispute, the court will not harshly
scrutinize and discredit an expert opinion. The court appreciates Dr. Ertz and
Dr. Geiger’s opinions on this matter and they factor into the balance of
equities.

3

The court finds the proper and equitable decision is to grant in part and
deny in part the government’s motion. Plaintiff shall undergo an independent
psychological examination conducted by Dr. Geiger or a different qualified
person of the government’s choosing. The examination shall take place in
Rapid City, South Dakota. As a party to this lawsuit whose physical and
mental wellbeing are critical to a just outcome, plaintiff’s interests in this
discovery dispute outweigh the schedule and business management interests
of Dr. Geiger.
Based on the above analysis, it is
ORDERED that the government’s motion for an independent
psychological examination (Docket 56) is granted in part and denied in part.
IT IS FURTHER ORDERED that on or before June 5, 2018, the
government shall submit a filing—consistent with this order—detailing its
proposed “time, place, manner, conditions, and scope of the examination, as
well as the person or persons who will perform it.” Fed. R. Civ. P. 35 (a)(2)(B).
The government shall submit this filing after conferring with plaintiff about the
filing’s contents and indicate whether plaintiff objects.
Dated May 21, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

4