Long et al v. M&M Transportation, LLC et al

Filing 65

ORDER Confirming Pronounced Order of the Court Granting in Part and Denying in Part 50 Plaintiff's Motion to Compel Discovery Responses and Granting 51 Defendants' Motion to Compel Plaintiff to submit to Rule 35 Examinations. Written objections due within fourteen days of this Order. Signed by Magistrate Judge James E. Seibert on 1/22/2014. (cmd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHRISTOPHER TYLER LONG,
CHRISTOPHER EMMETT LONG, AND
EDY LONG,
Plaintiffs
v.

Civil No.3:13-cv-65

M&M TRANSPORTATION, LLC; MILLER &
SONS AUTO AND TRUCK REPAIR, INC.;
KEVIN E. MILLER; KENNETH ANDREW
MILLER, JR.; AND PEGGY MILLER,
Defendants.
ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT GRANTING IN
PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL DISCOVERY
RESPONSES AND GRANTING DEFENDANTS’ MOTION TO COMPEL PLAINTIFF
TO SUBMIT TO RULE 35 EXAMINATIONS

I. INTRODUCTION
These matters are before the Court on Plaintiffs’ Motion to Compel Defendants’ Discovery
Responses filed on January 10, 2014,1 and Defendants’ Motion to Compel Plaintiff to Submit to
Rule 35 Examinations filed on January 14, 2014.2 Defendants’ filed responses to Plaintiffs’ Motion
on January 17, 2014,3 and Plaintiffs filed a response to Defendants’ Motion on January 20, 2014.4
On January 21, 2014, this Court held an evidentiary hearing and argument on both motions.

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Dkt. No. 50.

2

Dkt. No. 51.

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Dkt. Nos. 56 & 57.

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Dkt. No. 58.

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Plaintiffs appeared by Christopher J. Regan, Esq. and Laura Pollard, Esq., in person. Defendant
appeared by Stephen M. Houghton, Esq., in person, and Tracey A. Rohrbaugh, Esq., by telephone.
Defendants offered two exhibits into evidence. No other evidence or testimony was presented at the
hearing. At the conclusion of the hearing, the Court granted in part Plaintiffs’ Motion to Compel and
granted Defendants’ Motion to Compel.
II.

DISCUSSION

A. Plaintiffs’ Motion to Compel Discovery Responses
Plaintiffs propounded on Defendants seven interrogatories and twelve requests for
production of documents, all of which seek financial information and records. Defendants responded
as follows to each of the discovery requests:
Plaintiffs’ discovery request is premature because Plaintiffs have
offered no evidence to demonstrate a viable claim for punitive
damages, and Defendant is not required to produce such financial
information until after the dispositive motions are adjudicated.
In their Motion to Compel, Plaintiffs argue that they are only required to make a prima facie case
for punitive damages in order to discover financial information and that survival of dispositive
motions is but one means by which a plaintiff may establish such a prima facie case. Plaintiffs
further contend that they have asserted sufficient facts in their Complaint to show a viable claim for
punitive damages such that they are entitled to the discovery of the requested financial information.
Specifically, they assert that they have sufficiently established prima facie claims for the tort of
outrage and statutory deliberate intent, both of which allow recovery of punitive damages. In
addition, Plaintiffs contend that Defendants’ financial information is relevant to several other issues
in this action, such as Defendants’ corporate structures and whether veil-piercing is available in this
case.
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In their response to Plaintiffs’ Motion to Compel, Defendants contend that their objections
to Plaintiffs’ requests for financial information are valid. They argue that “information related to
punitive damages is discoverable [only] when it is clear that the principal liability for which a party
might recover punitive damages will be presented to the jury.” Defendants point out that
Defendants’ Motion for Partial Judgment on the Pleadings5 is currently pending before the Court.
Defendants argue that this Motion seeks dismissal of many of the claims for which the requested
financial information would be relevant; therefore, Plaintiffs’ discovery of that information is
premature until the Court rules as to whether Plaintiffs may continue to pursue those claims. They
also argue that Plaintiffs failed to present any evidence in support of their factual allegations as to
the outrage and deliberate intent claims, so they have not met their burden of establishing a viable
claim for punitive damages.
“Unless otherwise limited by court order, ... [p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense....” Fed.R.Civ.P. 26(b)(1). A
defendant’s financial information is clearly relevant if the defendant is potentially liable for punitive
damages. See Stamathis v. Flying J, Inc., 389 F.3d 429, 442 (4th Cir.2004); Blount v. Wake Elec.
Membership Corp., 162 F.R.D. 102, 105 (E.D.N.C.1993). However, many courts require a
heightened showing of entitlement to financial records to support a punitive damage claim because
“[t]he ease with which claims for punitive damages can be asserted makes it apparent that such
claims may result in abuse and harassment if their mere assertion entitles plaintiffs to financial
discovery.” Moore v. DAN Holdings, Inc., 2013 WL 1833557 (M.D.N.C. April 30, 2013) (quoting
Moran v. International Playtex, Inc., 103 A.D.2d 375, 377 (N.Y.App. Div., 2d Dep't 1984)). Thus,

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Dkt. No. 30.

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in general, a plaintiff must establish that a claim for punitive damages is viable before discovery into
a defendant’s financial information will be allowed. See Robinson v. Quicken Loans Inc., 2013 WL
1704839 (S.D.W.V. April 19, 2013) (collecting cases).
This prima facie showing of viability can be made by presenting evidence to support the
factual allegations in the complaint or by surviving a summary judgment motion as to claims for
which punitive damages are available. See, e.g., George Golf Design, Inc. v. Greenbrier Hotel, Inc.,
2012 WL 5285410, at *3 (S.D.W.Va. Oct. 23, 2012) (information about defendant’s financial worth
only discoverable once plaintiff survived motion for summary judgment); Hester v. Cottrell
Contracting Corp., 2001 WL 1764200 (E.D.N.C. Apr. 27, 2001) (defendant’s financial condition
discoverable only when plaintiff presents evidence of possible entitlement to punitive damages and
plaintiff survives a motion to dismiss). However, most courts hold that surviving a motion to dismiss
alone is not enough to show a viable claim for punitive damages. See, e.g., Robinson, 2013 WL
1704839 (“Plaintiff would certainly satisfy her burden by surviving a motion for summary
judgement, although that would occur relatively late in litigation. One alternative is for Plaintiff to
file a renewed motion to compel discovery that includes sufficient supporting evidence (i.e.,
affidavits, documentary evidence) to demonstrate a viable claim for punitive damages” however,
“merely surviving a motion to dismiss without such evidence is insufficient”).
Here, the fact that Defendants’ Motion for Judgment on the Pleadings is pending is not
controlling on the issue of whether financial information is discoverable because that motion does
not seek dismissal of any of the punitive damage claims. However, the Court agrees that Plaintiffs
have not met their burden of producing evidence to establish a prima facie case in support of their
punitive damage claims. Regarding the tort of outrage, Plaintiffs merely contend in their motion that

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they “have asserted sufficient facts in their Complaint to establish a prima facie claim for punitive
damages.” However, as noted above, this is simply not enough to establish a viable punitive
damages claim for the purposes of discovering financial information. Plaintiffs must come forward
with some evidence to support their factual allegations in order to carry their burden. They have not
done so here. Similarly, Plaintiffs have not provided sufficient support of their statutory deliberate
intent claims. Plaintiffs do provide some documentary evidence, which they contend supports the
allegations in their complaint that “Defendants engaged in deliberate, willful and intentional
wrongdoing” and give rise to punitive damages under West Virginia’s deliberate intent statute,
W.Va. Code 23-4-2. However, as Defendants point out, under this statute, punitive damages are only
available under subpart (i) of 23-4-2, which “requires a showing of an actual, specific intent and may
not be satisfied by allegation or proof of: (A) conduct with produces a result that was not specifically
intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C)
willful, wanton or reckless misconduct.” W.Va.Code 23-4-2(d)(2)(i), (iii). Punitive damages are not
available under subpart (ii) of the statute, which requires only a showing that an unsafe condition
existed of which the employer actually knew, that the hazard was a violation of the safety rules, that
the employer exposed the plaintiff to the hazard, and that serious injury resulted. W.Va.Code 23-42(d)(2)(ii). Plaintiffs have not presented any evidence to support liability under subsection (i), i.e.,
that Defendants deliberately intended to produce the injuries. Accordingly, Plaintiffs have not met
their burden of showing a viable claim for punitive damages, and the discovery of financial
information for that purpose is premature at this time.
However, the Court does not agree that these same principles apply to the discovery of
financial information regarding Plaintiffs’ alter-ego claims. “[T]he courts have held that when a

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party seeks discovery about the relationships between individuals and a corporation, relevance is
broadly and liberally construed. The issue is not whether [the party] may ultimately prevail on the
piercing the corporate veil theory, but whether the allegations are sufficient to allow them to conduct
discovery in an attempt to prove their allegations.” Abu–Nassar v. Elders Futures Inc., 1991 WL
45062 (S.D.N.Y.1991) (internal citations omitted); see also In re Don’s Making Money, LLP, 2008
WL 509531 (Bankr. D. Ariz. Feb. 19, 2008) (collecting cases). Discovery of information for
purposes of establishing the existence of facts sufficient to support an alter-ego theory is especially
appropriate when much of the relevant information is in the control of the other party. See, e.g,
Minelli Constr. Co. v. United Derrickmen & Riggers Ass'n, Local 197, 1990 WL 180550, *5
(S.D.N.Y. November 14, 1990).
Here, Defendants argue that “when [Plaintiffs] allegations are reviewed, it is clear that
insufficient evidence is provided to support their claim, let alone allow them to discover financial
information.” However, the issue is not whether Plaintiffs provided sufficient evidence; it is whether
the allegations in their Complaint are sufficiently pled. Defendants’ Motion for Judgment on the
Pleadings currently pending before the District Court seeks dismissal of the alter-ego claims. Should
Plaintiffs survive that dispositive motion, they would be entitled to conduct discovery into those
claims. Accordingly, as directed at the hearing, Defendants will be required to file certain financial
information under seal pending resolution of the pending motion for judgment on the pleadings.
Based on the foregoing, Defendants shall file the following information under seal: (1) tax
returns for all defendants for 2011, 2012, and 2013 (when they are completed); and (2) income
statements and balance sheets for M&M Transportation and Miller & Sons Auto and Truck Repair
for 2011, 2012, and 2013 (when they are completed). The information will stay under seal until such

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time as the trial court rules that Plaintiffs can go forward with their alter-ego claims. If the trial court
dismisses those claims, the information will remain under seal until Plaintiffs survive a motion for
summary judgment on the punitive damage claims or until the time for filing such a motion expires.
B. Defendants’ Motion to Compel Plaintiff to Submit to Rule 35 Examinations
Defendants seek an order compelling Plaintiff Christopher Tyler Long (“Long”) to submit
to two examinations under Federal Rule of Civil Procedure 35: (1) a medical examination conducted
by Dr. John Talbott; and (2) a vocational examination conducted by Kathleen R. Deken. Defendants
assert that Long’s physical condition and his future employability are both at issue such that good
cause exists to compel the examinations under Rule 35. Plaintiffs oppose the examinations because
they contend that Defendants have not shown that good cause for the examinations exists.
Additionally, they oppose the examination by Dr. Talbott because Defendants seek to hold the
examination in Pittsburgh, Pennsylvania, which is 240 miles from Long’s home and outside this
judicial district. They also contend that the proposed vocational assessment by Ms. Deken amounts
to a deposition, which is not provided for under Rule 35. Finally, Plaintiffs assert that “so-called
vocational interviews are not within the ambit of [Rule 35], even when the Plaintiff’s employability
is at issue.”6
Pursuant to Rule 35, when a party’s mental or physical condition is in controversy, the court
may order that party to submit to a physical or mental examination by a suitably licensed or certified
examiner. Fed.R.Civ.Pro. 35(a)(1). The order may be made only on motion and for good cause.
Fed.R.Civ.Pro. 35(a)(2)(A). “The law is well-settled that the ‘in controversy’ and ‘good cause’

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Plaintiffs also state in their response brief that the date by which examinations were to be completed has
passed. However, Judge Groh granted Defendants’ Motion to Modify Scheduling Order on January 21, 2014. As a
result of that Order, the examination deadline is now January 30, 2014. Thus, Plaintiffs’ argument is moot.

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requirements of the Rule are not mere formalities; rather, they must be met with ‘an affirmative
showing by the movant that each condition as to which the examination is sought is really and
genuinely in controversy and that good cause exists for ordering each particular examination.’”
Pauley v. U.S., 2013 WL 6195730 (S.D.W.V. Nov. 27, 2013) (quoting Schlagenhauf v. Holder, 379
U.S. 104, 118 (1964)). However, in some situations, the pleadings alone are enough to meet these
requirements. Id. at 119. In a negligence action where the plaintiff asserts a mental or physical
injury, “that mental or physical injury [is] clearly in controversy and [provides] the defendant with
good cause for an examination to determine the existence and extent of such asserted injury.” Id.
Here, Long’s medical condition and future employability are clearly in controversy because
Plaintiffs have alleged that Long “suffered serious, permanent and disabling injuries” which are
“permanent in nature including, among other things, the loss of sight, the loss of full cognitive
function, nerve damage, scarring and disfigurement of the plaintiff’s face and other parts of his
body.” Defendants have denied these allegations. Thus, the nature, extent, cause, and permanency
of Long’s injuries are squarely at issue such that good cause for the examinations exists.
Additionally, Plaintiffs’ contention that Defendants must show that they cannot get the desired
information from existing medical records lacks merit. See Pauley v. U.S., 2013 WL 6195730
(collecting cases). Plaintiffs’ objection that Defendants must show good cause to hold the
examination in Pittsburgh is also overruled. While there is case law to support such a proposition,
Plaintiffs did not object to the examination being held in Pittsburgh initially, as evidenced by
correspondence between the parties’ counsel. Defendants aver that they will pay for all expenses,
and requiring them to change the location on such short notice would result in further delay.
The Court also finds that Defendants are entitled to conduct a vocational examination.

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Plaintiffs’ reliance on this Court’s holding in Twigg v. Pilgram’s Pride Corp., 2006 WL 2100322
(N.D.W.V. July 26, 2006), for the proposition that vocation interviews are not allowed under Rule
35 is misplaced. In Twigg, this Court did not hold vocational examinations are per se outside the
scope of Rule 35. The undersigned found in Twigg that the plaintiff’s mental condition was not in
controversy because “Plaintiff Twigg neither seeks nor alleges she has suffered mental or physical
damages.” Id. at *2. The only reason the defendant in Twigg requested the vocational assessment
was to support its theory that the plaintiff did not mitigate damages in requesting back-pay. Here,
in contrast, Plaintiffs have put Long’s future employability squarely at issue by alleging that he
“suffered...a loss of earning capacity and reasonably believes he will suffer such loses in the future.”
Accordingly, Defendants’ Motion to Compel Plaintiff to Submit to Rule 35 Examinations
is GRANTED. As directed at the hearing, Dr. Long’s examination will take place on January 23,
2014, in Pittsburgh, Pennsylvania. Defendants will pay Plaintiffs’ round-trip mileage, at the
government rate, as well as reasonable expenses for meals and accommodations. Counsel for all
parties are directed to confer as to the exact time and place for the examination to occur and
arrangements for travel. Ms. Deken’s examination will take place on January 30, 2014, at 9:30 a.m.,
at Plaintiffs’ place of residence.
III. CONCLUSION
Plaintiffs’ Motion is GRANTED IN PART and DENIED IN PART because information
about Defendants’ financial status is only relevant to Plaintiffs’ punitive damage claims once it is
clear that those claims are viable. However, if Plaintiffs’ alter-ego claims survive the pending
dispositive motion, certain financial information will be discoverable. In order to avoid delay if and
when Plaintiffs’ right to discovery of financial information becomes ripe, Defendants are

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ORDERED to file, under seal, the information directed by this Order, within fourteen (14) days of
the date of this Order.7 Defendants’ Motion to Compel Plaintiff to Submit to Rule 35 Examinations
is GRANTED. Plaintiff Christopher Tyler Long shall submit to a physical examination by Dr. John
Talbott on January 23, 2014, in Pittsburgh, PA, with all reasonable travel expenses paid by
Defendants. Plaintiff Christopher Tyler Long shall also submit to a vocational examination on
January 30, 2014, at Plaintiffs’ residence.
Filing of objections does not stay this Order.
Any party may, within fourteen [14] days of this Order, file with the Clerk of the Court
written objections identifying the portions of the Order to which objection is made, and the basis
for such objection. A copy of such objections should also be submitted to the District Court Judge
of Record. Failure to timely file objections to the Order set forth above will result in waiver of the
right to appeal from a judgment of this Court based upon such order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear pro
se and any counsel of record, as applicable.
IT IS SO ORDERED.
/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE

DATED: January 22, 2014

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Because the 2013 tax year just ended, if the requested information is not yet available for 2013,
Defendants are directed to file that information within fourteen (14) days of its completion.

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