McCormick et al v. Payne et al
Filing
56
MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Defendants Warren Transport Inc. and Brett C. Brayton's Motion for Independent Medical Examination of Cross-Plaintiff Richard C. Payne (Dkt. #43) ishereby GRANTED IN PART AND DENIED I N PART. It is further ORDERED that Cross-Plaintiff Richard C. Payne will submit to a medical examination by Benzel C. MacMaster, M.D., P.A. at Glen Lakes Orthopaedic Clinic, 8220 Walnut Hill Lane, Suite 310, Dallas, Texas 75231, within thirty days of the entry of this order. Signed by Judge Amos L. Mazzant, III on 6/3/2016. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MATTHEW R. MCCORMICK, DENVEN
BENTLEY, MARTIN R. STEWART,
SPENCER L. POLLARD, LEE R.
SPIELMAN, AND GARRETT
STEVENSON
v.
RICHARD C. PAYNE, WARREN
TRANSPORT, INC., AND BRETT C.
BRAYTON
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CASE NO. 4:15-CV-809
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants Warren Transport Inc. and Brett C. Brayton’s
Motion for Independent Medical Examination of Cross-Plaintiff Richard C. Payne (Dkt. #43).
After reviewing the relevant pleadings, the Court finds that the motion should be granted in part
and denied in part.
BACKGROUND
The above-referenced case is a diversity case arising from a motor vehicle collision that
occurred on or about December 13, 2013, in McKinney, Texas (Dkt. #43 at p. 1). Cross-Plaintiff
Richard C. Payne (“Payne”) brings a personal injury action against Defendants Warren
Transport, Inc. (“Warren Transport”) and Brett C. Brayton (“Brayton,” or collectively with
Warren Transport, “Cross-Defendants”) for injuries that he alleges to have sustained as a result
of the collision (Dkt. #43). Payne seeks damages from Cross-Defendants for the “severe bodily
injuries to his pelvis, knee, and body generally,” and alleges that he incurred expenses for
medical care and attention (Dkt. #43 at p. 2). Payne also asserts that he sustained the following
damages: (1) past medical expenses; (2) future medical expenses; (3) past and future pain and
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suffering; (4) past pain and anguish; (5) past and future physical impairment; (6) disfigurement;
(7) lost wages and future loss of wage earning capacity; and (8) exemplary damages (Dkt. #43 at
p. 2).
On May 5, 2016, Defendants filed their Motion for Independent Medical Examination of
Cross-Plaintiff Richard C. Payne (Dkt. #43). On May 20, 2016, Payne filed his response (Dkt.
#50).
LEGAL STANDARD
Federal Rule of Civil Procedure 35(a) provides for physical and mental examinations of
persons:
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 its
custody or under its legal control.
FED. R. CIV. P. 35(a). “The party seeking an examination has the burden to show that the
examinee’s condition is in controversy and that good cause exists for the examination.” Fischer
v. Coastal Towing, Inc., 168 F.R.D. 199, 201 (E.D. Tex. 1996) (citing Schlagenhauf v. Holder,
379 U.S. 104, 118-19 (1964); In re Certain Asbestos Cases, 112 F.R.D. 427, 434-35 (N.D. Tex.
1986)). “The moving party can make these showings through affidavits or other evidence.” Id.;
see Schlagenhauf, 379 U.S. at 119. “The Supreme Court has made explicit that ‘there must be a
greater showing of need under Rule[]…35 than under the other discovery rules;’ to require
otherwise, and to accept a showing of mere relevance would render the ‘good cause’ requirement
meaningless.” Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 391 (S.D. Tex. 2013); see
Schlagenhauf, 379 U.S. at 118. “A plaintiff in a negligence action who asserts mental or
physical injury places that mental or physical injury clearly in controversy and provides the
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defendants with good cause for an examination to determine the existence and extent of such
asserted injury.” Fischer, 168 F.R.D. at 200 (citing Schlagenhauf v. Holder, 379 U.S. at 119).
“Good cause” requires a showing of specific facts that demonstrate the need for the
information sought and lack of means for obtaining it elsewhere. Id. (citing Schlagenhauf, 379
U.S. at 118). For example, “a plaintiff may not avoid a Rule 35 examination simply on the
grounds that other sources of information, such as medical reports and depositions of plaintiff’s
treating physicians, are available.” Ornelas, 292 F.R.D. at 391-92 (citing Jackson v. Entergy
Op., Inc., Nos. Civ. A. 96-411, Civ. A. 97-0943, 1998 WL 28272, at *2 (E.D. La. Jan. 26, 1998);
Ferrell v. Shell Oil Co., Civ. A. No. 95-0568, 1995 WL 688795, at *1 (E.D. La. Nov. 20, 1995)).
Therefore, “courts have continually looked to whether the plaintiff has retained his own experts,
and whether he intends to prove his claims through their testimony at trial, as relevant to a
finding of ‘good cause.’” Id.; see, Lahr, 164 F.R.D. at 200 (citing Duncan v. Upjohn, 155 F.R.D.
23, 25 (D. Conn. 1994)). Additionally, the Schlagenhauf court also made clear that “a plaintiff
in a negligence action who asserts mental or physical injury…provides the defendant with good
cause for an examination to determine the existence and extent of such asserted injury.” 379
U.S. at 119.
ANALYSIS
The Court determines that Cross-Defendants have shown good cause for an order
requiring Payne to submit to a medical examination by Cross-Defendants’ retained expert,
Benzel C. MacMaster, M.D., P.A. (“Dr. MacMaster”), as to the physical medical conditions that
Payne has placed in controversy. Cross-Plaintiff has placed his physical condition in controversy
by alleging damages for the following: (1) past reasonable and necessary medical expenses; (2)
reasonable and necessary medical expenses which in all probability will be incurred in the future;
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(3) past physical pain and suffering; (4) future physical pain and suffering; (5) past physical
impairment; (6) future physical impairment; (8) disfigurement; (9) lost wages and future loss of
wage earning capacity (Dkt. #24 at pp. 8-9). Specifically, Payne alleges that “[a]s a result of the
negligence of Cross-Defendants, Cross-Plaintiff suffered severe bodily injuries to his pelvis,
knee, and body generally.” (Dkt. #24 at p. 8). Additionally, Payne has submitted himself for
examination by several non-retained experts (See Dkt. #43, Exhibit 2). To avoid prejudice,
Cross-Defendants must have its expert conduct an examination of Cross-Plaintiff to rebut the
findings of Plaintiff’s non-retained experts. Otherwise, Cross-Defendants’ expert would have no
way to adequately scrutinize their conclusions.
Cross-Defendants also request that Dr. MacMaster examine Payne as to any mental
conditions that Payne has placed in controversy, and well as his future loss of wage earning
capacity (See Dkt. #43 at p. 8). However, the Court finds that Cross-Defendants have not
demonstrated good cause for Payne to submit himself for an examination conducted by Dr.
MacMaster. Although Payne does request damages for both (1) past mental pain and anguish,
and (2) lost wages and future loss of wage earning capacity, the Court finds that CrossDefendants have failed to demonstrate that Dr. MacMaster is qualified to conduct an
examination as to those issues. After reviewing his curriculum vitae (“CV”), it appears to the
Court that Dr. MacMaster is a specialist in orthopedic surgery (See Dkt. #43, Exhibit 3). It does
not appear that Dr. MacMaster is qualified to conduct an examination into any or all mental
conditions that Payne has alleged within his cross-claim.
Based on the foregoing, the Court finds that Defendants’ retained expert should be
allowed to conduct an independent medical examination, but only as to Payne’s physical
conditions that have been placed in controversy.
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CONCLUSION
It is therefore ORDERED that Defendants Warren Transport Inc. and Brett C. Brayton's
Motion for Independent Medical Examination of Cross-Plaintiff Richard C. Payne (Dkt. #43) is
.
hereby GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that Cross-Plaintiff Richard C. Payne will submit to a medical
examination by Benzel C. MacMaster, M.D., P.A. at Glen Lakes Orthopaedic Clinic, 8220
Walnut Hill Lane, Suite 310, Dallas, Texas 75231, within thirty days of the entry of this order.
SIGNED this 3rd day of June, 2016.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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