Greathouse v. Bath & Body Works, LLC
Filing
22
MEMORANDUM OPINION AND ORDER COMPELLING MEDICAL EXAMINATION OF PLAINTIFF; granting 18 Motion to Compel. On or before June 3, 2015, counsel for Defendant will submit to counsel for Plaintiff a written explanation of the manner of the examination, including but not limited to the diagnostic tests to be conducted. Plaintiff will file with thecourt any objections to the manner of the examination on or before June 5,2015. If the parties reach an agreement on the manner of the examination,Defendant shall file the agreed explanation of the manner of the examination with the Court on or before June 8, 2015.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(lcayce, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
LUCY GREATHOUSE,
Plaintiff,
VS.
BATH & BODY WORKS, LLC,
Defendant.
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CIVIL ACTION NO. 2:14-CV-337
MEMORANDUM OPINION AND ORDER
COMPELLING MEDICAL EXAMINATION OF PLAINTIFF
Pending is Defendant Bath & Body Works, LLC’s Motion to Compel Medical
Examination of Plaintiff Lucy Greathouse. (D.E. 18). The pending motion was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636. Having considered the
motion, response, arguments of counsel, the applicable authorities, and for the reasons
and with the stipulations set forth below, the motion is GRANTED.
I.
BACKGROUND
This is a personal injury, premises liability cause of action removed to this Court
based on diversity jurisdiction.
(D.E. 1).
Plaintiff alleges she slipped and fell on
Defendant’s retail premises on May 23, 2013, and sustained serious bodily injuries.
(D.E. 1-1). In the pending motion, Defendant seeks to compel Plaintiff to submit to a
medical examination by Defendant’s medical expert. Plaintiff alleges her injuries may
require surgery and that her future medical expenses will exceed $200,000. Defendant
disputes the extent of Plaintiff’s injuries and questions the necessity of surgical
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intervention. Plaintiff disputes the necessity of the medical examination, arguing that
Defendant has not established good cause and that Defendant’s expert has a sufficient
documented medical history of Plaintiff to formulate his opinions. Plaintiff alternatively
argues for certain limitations and guidelines for the medical examination if ordered by the
Court.
II.
DISCUSSION
Rule 35(a) of the Federal Rules of Civil Procedure 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).
Rule 35 empowers a court to order an independent medical examination of a party
when (1) the party’s physical or mental condition is in controversy; (2) the expert is
either a physician or psychologist; and (3) good cause is shown. See Acosta v. Tenneco
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Oil Co., 913 F.2d 205, 208 (5th Cir. 1990). Plaintiff disputes that her physical and
mental condition are in controversy. However, Plaintiff’s treating medical provider, Dr.
Dennis Gutzman has recommended plaintiff undergo three surgeries. Defendant
maintains it cannot evaluate these recommendations adequately without Plaintiff
submitting to a medical examination by Defendant’s expert.
Defendant’s proposed
independent medical examiner Dr. William E. Swan, Jr., is a qualified medical expert in
the field of orthopedic surgery. The examination would take place in Corpus Christi,
which would be convenient to Plaintiff as she is a resident of Nueces County.
Plaintiff’s medical condition and the necessity of future surgeries is in dispute.
Defendant’s expert is qualified and good cause exists to order an independent medical
examination of Plaintiff by Defendant’s expert. The undersigned finds that no harm or
prejudice will result by granting Defendant’s motion. However, as addressed during the
hearing on the pending motion, the medical examination should comply with the
requirements of Rule 35 and be limited in scope with the manner of the examination and
other matters clearly defined. Therefore, Defendant’s Motion to Compel the Independent
Medical Examination of Plaintiff is GRANTED.
It is further ORDERED that:
1. The medical examination of Plaintiff Lucy Greathouse shall take place on or
before June 2, 2015 at a date and time agreed to by the parties. If the parties
cannot agree on a date, counsel for defendant will file a motion for the court to
set the date and time.
2. The examination shall occur at the offices of Dr. William E. Swan, Jr. at 1521
South Staples Street, Suite 201, Corpus Christi, Texas, 78404.
3. Dr. Swan is the person who will perform the examination.
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4. On or before June 3, 2015, counsel for Defendant will submit to counsel for
Plaintiff a written explanation of the manner of the examination, including but
not limited to the diagnostic tests to be conducted. Plaintiff will file with the
court any objections to the manner of the examination on or before June 5,
2015. If the parties reach an agreement on the manner of the examination,
Defendant shall file the agreed explanation of the manner of the examination
with the Court on or before June 8, 2015.
5. Dr. Swan will conduct his examination in accordance with the parties’ agreed
explanation of the manner of the examination. The examination will be
performed in a manner consistent with medical and ethical standards for such
examinations. Dr. Swan’s report and findings will be turned over to both
Plaintiff’s counsel and Defendant’s counsel no later than thirty days from the
date of the examination. Other than disclosing the report and findings to
counsel, the medical examination, findings and report shall be confidential.
Dr. Swan may testify about his findings and opinions in proceedings before
this court.
6. Provided Plaintiff Lucy Greathouse consents, one representative of Plaintiff
may be present with Plaintiff during the examination.
7. Unless agreed to by the parties, the examination is limited to two hours in
length.
8. Plaintiff is not required to complete an extensive medical history questionnaire
as part of this examination, however, Dr. Swan may ask Plaintiff relevant
questions pertinent to the examination of the injuries or medical conditions at
issue in this case.
9. Defendant shall be responsible for the costs associated with the medical
examination, including but not limited to diagnostic testing and Dr. Swan’s fee.
10. Prior to the medical examination, Plaintiff’s counsel will deliver a copy of this
order to Plaintiff and Defendant’s counsel will deliver a copy of this order to
Dr. Swan.
ORDERED this 27th day of May, 2015.
___________________________________
Jason B. Libby
United States Magistrate Judge
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