Pope, et al v. United States of America

Filing 46

FIRST ORDER on 28 MOTION to Compel Rule 35 Examination filed by United States of America by Judge Robert J. Bryan. (TC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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AMANDA POPE and RICH POPE ,
Plaintiffs,
v.
UNITED STATES OF AMERICA,

CASE NO. 3:17-cv-05868-RJB
FIRST ORDER ON DEFENDANT
THE UNITED STATES’ MOTION
TO COMPEL FRCP 35
EXAMINATION

Defendant.

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THIS MATTER comes before the Court on Defendant the United States’ Motion to
Compel FRCP 35 Examination. Dkt. 28. The Court has considered Defendant’s motion,
Plaintiffs’ Response (Dkt. 43), and the remainder of the file herein. As explained below, this
First Order on Defendant’s Motion to Compel FRCP 35 Examination is issued prior to
Defendant’s Reply because of its time sensitivity.
This case arises out of the allegation that surgeons at Madigan Army Medical Center, a
hospital operated by Defendant, caused a serious and permanent injury to the phrenic nerves of

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FIRST ORDER ON DEFENDANT THE UNITED STATES’ MOTION TO COMPEL FRCP 35 EXAMINATION 1

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Plaintiff Amanda Pope during removal of a tumor. Defendant now seeks to compel the medical

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exam of Plaintiff Amanda Pope by an expert of Defendant’s choosing. Dkt. 28.

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Plaintiffs object to the Rule 35 examination because, according to Plaintiffs, “there is

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literally no way for the . . . exam to occur in time for Defendant to meet its obligation to disclose

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the substance of the examiner’s testimony.” Dkt. 43 at 2. This is a problem of Defendant’s own

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making, Plaintiffs argue, because Defendant had plenty of time to schedule the Rule 35

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examination and comply with deadlines. The current deadline for disclosure of expert testimony,

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which has been moved twice by agreement of the parties, is October 9, 2018. Plaintiffs argue in

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the alternative that if the Court is inclined to allow Defendant conduct the Rule 35 examination,

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it should only be allowed under certain conditions, which are detailed in Plaintiffs’ Proposed

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Order. Dkt. 43 at 5-8; Dkt. 43-1.

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Under Rule 35, courts may order physical or mental examinations of a party. Pursuant to

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Fed. R. Civ. P. 35(a)(2), courts “must specify the time, place, manner, conditions, and scope of

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the examination, as well as the person or persons who will perform it.”

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Ms. Pope’s Rule 35 examination is currently scheduled for this Friday, September 28,

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2018. The Court is inclined to grant in part Defendant’s motion to compel the examination now,

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so that the Rule 35 examination may proceed this week and without delay. The unresolved

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question is whether the examination should be done under conditions proposed by Plaintiffs.

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Defendant’s motion partially addressed Plaintiffs’ proposed conditions, but in fairness to

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Defendant, Defendant should be given the chance to file its Reply, if any, by this Thursday at

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10am. Shortening time for Defendant’s Reply is appropriate given the timing that Defendant’s

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motion would otherwise be ripe, a date less than two weeks from the expert witness deadline of

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October 9, 2018.

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FIRST ORDER ON DEFENDANT THE UNITED STATES’ MOTION TO COMPEL FRCP 35 EXAMINATION 2

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THEREFORE, it is HEREBY ORDERED:

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Defendant SHALL file its Reply, if any, by 10.a.m on Thursday, September 27, 2018, or

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sooner. If Defendant does not file a Reply, the Rule 35 examination of Ms. Pope shall take place

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on Friday, September 28, 2018 subject to the conditions proposed by Plaintiffs (Dkt. 43-1).

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It is so ordered.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

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to any party appearing pro se at said party’s last known address.
Dated this 25th day of September, 2018.

A
ROBERT J. BRYAN
United States District Judge

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FIRST ORDER ON DEFENDANT THE UNITED STATES’ MOTION TO COMPEL FRCP 35 EXAMINATION 3