Demarco et al v. Nabors Industries et al

Filing 98

MEMORANDUM DECISION AND ORDER granting 96 Motion for Short Term Discovery. For these reasons, the court GRANTS the DeMarcos' motion and ORDERS ORDERS that Aubrey Corwin's Rule 35 examination of Mr. DeMarco be video recorded. Signed by Magistrate Judge Daphne A. Oberg on 10/26/21. (jwt)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFFS’
SHORT FORM DISCOVERY
MOTION (DOC. NO. 96)

M. BRANDON DEMARCO and LANA
DEMARCO,
Plaintiffs,
v.

Case No. 2:16-cv-01242

MATTHEW L. CLARK and DOES 1
THROUGH 10 INCLUSIVE,

Judge Howard C. Nielson, Jr.

Defendants.

Magistrate Judge Daphne A. Oberg

In this personal injury action, Plaintiffs M. Brandon DeMarco and Lana DeMarco (“the
DeMarcos”) allege Mr. DeMarco was severely injured in a 2012 motor vehicle accident caused
by Defendant Matthew L. Clark. (See Compl., Doc. No. 2-1.) Before the court is Plaintiffs’
Expedited Short Form Discovery Motion, (“Mot.,” Doc. No. 96), seeking to compel Mr. Clark to
permit video recording of the examination of Mr. DeMarco by Mr. Clark’s vocational
rehabilitation specialist, Aubrey Corwin, under Rule 35 of the Federal Rules of Civil Procedure.
Based on the parties’ briefing, 1 and for the reasons set forth below, the court grants the motion.
BACKGROUND
Previously, Mr. Clark filed a motion asking the court to order Mr. DeMarco to undergo
unrecorded Rule 35 examinations. (Def.’s Expedited Short Form Disc. Mot. 1–2, Doc. No. 90.)
The DeMarcos argued the examinations should be video recorded, based on their assertion that
Mr. DeMarco has a severe brain injury with compromised cognitive capacity. (Pls.’ Resp. to

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Pursuant to Local Civil Rule 7-1, the court concludes oral argument is unnecessary and rules on
the motion based on the written memoranda. See DUCivR 7-1(f).
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Def.’s Expedited Short Form Disc. Mot. 2, Doc. No. 93.) After a hearing, the court granted Mr.
Clark’s motion, finding the DeMarcos failed to show special circumstances warranted recording
the examinations, because they presented no evidence supporting their claim of Mr. DeMarco’s
cognitive impairment. (Mem. Dec. & Order Granting Defs.’ Short Form Disc. Mot. 2–3, Doc.
No. 95.) However, the court stated the DeMarcos could “file a new motion if special
circumstances warrant recording future examinations.” (Id. at 2 n.2.) The DeMarcos then filed
the motion before the court.
In their motion, the DeMarcos argue Mr. DeMarco’s traumatic brain injury, and its
effects, constitute special circumstances justifying the recording of Aubrey Corwin’s
examination. (Mot. 2–3, Doc. No. 96.) The DeMarcos contend Mr. DeMarco’s brain injury
affects his memory and would impair his ability to communicate with counsel about what
occurred during the examination. (Id.) In support of this argument, the DeMarcos presented a
letter from Mr. DeMarco’s treating doctor, indicating Mr. DeMarco has a “moderate-to-severe
traumatic brain injury with cognitive deficits including difficulty concentrating, short term
memory problems, and extensive mental fatigue,” and “his memory and comprehension is
diminished.” (Ex. A to Mot., Letter from Judith L. Gooch, MD (Oct. 13, 2021), Doc. No. 96-1.)
The doctor, who has treated Mr. DeMarco since 2014, opined that Mr. DeMarco “may not fully
understand or recall the specifics of any conversations or testing that is done in the context of an
adversarial examination.” (Id.) The DeMarcos also presented a neuropsychological consultation
report from 2014, finding Mr. DeMarco had “residual cognitive, emotional and neurobehavioral
deficits” as a result of a “moderate-to-severe traumatic brain injury,” and noting “overall reduced
memory functioning.” (Ex. B to Mot., Neuropsychological Consultation Report of Erin D.
Bigler, Ph.D. (“Bigler Report”) 5, Doc. No. 96-2.)

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Mr. Clark argues the DeMarcos failed to show a recording is necessary because this same
2014 neuropsychological report found Mr. DeMarco’s “expressive language appeared to be in
normal limits” and his “cognitive processes [to be] logical and appropriate.” (Bigler Report 3,
Doc. No. 96-2; Opp’n to Pls.’ Short Form Dis. Mot. (“Opp’n”) 2, Doc. No. 97.) Mr. Clark also
claims the DeMarcos have not provided any evidence the examination will be adversarial.
(Opp’n 3, Doc. No. 97.) Finally, Mr. Clark argues he will be unfairly prejudiced if Aubrey
Corwin’s examination is recorded because Mr. Clark did not have the opportunity to record or
verify the examinations by the DeMarcos’ experts. (Id.)
ANALYSIS
Rule 35 does not address whether physical and mental examinations may be recorded.
Courts considering this issue generally permit the recording of Rule 35 examinations only where
“special circumstances” are shown. Ashike v. Mullen Crane & Transp., No. 2:12-cv-11, 2013
U.S. Dist. LEXIS 196403, at *4 (D. Utah May 31, 2013) (unpublished). The party seeking to
record the examination has the burden to show special circumstances warrant recording. See id.
The DeMarcos have met their burden to demonstrate special circumstances warrant
recording Aubrey Corwin’s examination of Mr. DeMarco. The DeMarcos presented evidence
from two doctors finding Mr. DeMarco has cognitive deficits and short-term memory
impairment as a result of his traumatic brain injury. This evidence supports the DeMarcos’
assertion that Mr. DeMarco has a diminished ability to communicate with counsel about what
occurs during the examination. Indeed, Mr. DeMarco’s treating physician opined as much,
based on a treatment relationship of more than six years. In Maldonado v. Union Pacific
Railroad Company, the court permitted the recording of a Rule 35 examination under similar
circumstances. No. 09–1187–EFM, 2011 U.S. Dist. LEXIS 23507, at *9–10 (D. Kan. Mar. 8,

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2011) (unpublished). In Maldonado, the plaintiff had suffered a traumatic brain injury and
presented “evidence that [his] memory or other cognitive abilities were decreased, thus impairing
his ability to communicate to his counsel what occurred during the examination.” Id. at *11.
Similarly, here, the evidence of Mr. DeMarco’s cognitive impairment and diminished ability to
communicate what occurs during the examination is sufficient to justify a recording in this case.
The cases cited by Mr. Clark requiring a showing of bias or impropriety by the examiner
are inapplicable because none involved a traumatic brain injury or cognitive impairment limiting
a party’s ability to communicate what occurred during the examination. See Barge v. O’Malley’s
Inc., No. 20-cv-02035, 2021 U.S. Dist. LEXIS 45629 (D. Kan. Mar. 11, 2021) (unpublished);
Looney v. Lott, No. CIV-11-410, 2012 U.S. Dist. LEXIS 116690 (E.D. Okla. Aug. 20, 2012)
(unpublished); Greenhorn v. Marriott Int’l, Inc., 216 F.R.D. 649 (D. Kan. 2003). Mr. Clark’s
argument that he will be prejudiced is also unpersuasive where he has already permitted another
defense expert’s examination of Mr. DeMarco to be recorded. (See Pls.’ Resp. to Def.’s
Expedited Short Form Disc. Mot. 2, Doc. No. 93.) Moreover, Mr. Clark’s inability to record the
examinations by the DeMarcos’ experts does not implicate the same concerns: Mr. DeMarco’s
limited capacity to understand and communicate with his counsel about what occurs. Based on
the evidence presented, the court is not convinced any prejudice to Mr. Clark outweighs the
DeMarcos’ interest in recording the examination. Cf. Maldonado, 2011 U.S. Dist. LEXIS
23507, at *12 (rejecting the argument that allowing a recording of the defense expert’s
examination was unjust because the plaintiff’s experts’ examinations were not recorded).

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CONCLUSION
For these reasons, the court GRANTS the DeMarcos’ motion and ORDERS that Aubrey
Corwin’s Rule 35 examination of Mr. DeMarco be video recorded.
DATED this 26th day of October, 2021.
BY THE COURT:
______________________________
Daphne A. Oberg
United States Magistrate Judge

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