Talbott et al v. Boling et al
Filing
54
ORDER GRANTING MOTIONS re 37 , 38 Motions to Compel by Frontier Transport Corporation; and granting 40 Motion for Extension of Time to Complete Discovery by Frontier Transport Corporation. The parties shall submit a joint proposed modified scheduling order within (7) days of the date of this Order. Signed by Magistrate Judge Robert W. Trumble on 4/22/2016. (tlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
WILLIAM L. TALBOTT, JR.,
and PAMELA TALBOTT,
Plaintiffs,
CIVIL ACTION NO.: 3:15-CV-105
(GROH)
v.
DAVID L. BOLING, et al.,
Defendants.
ORDER GRANTING MOTIONS [ECF Nos. 37, 38 & 40]
I.
INTRODUCTION
On April 21, 2016, the undersigned resumed the evidentiary hearing on
Defendants’ Motions to Compel IMEs [ECF Nos. 37 & 38] that had commenced on April
18, 2016. Additionally, the Court has noticed Defendants’ Motion to Extend Time [ECF
No. 40] to be heard on this date. Megan B. Davis, Esq. appeared by telephone on behalf
of Defendants and Douglas A. Spencer, Esq. appeared by telephone on behalf of
Plaintiffs. On April 21, 2016, Defendants filed Additional Evidence [ECF No. 51], detailing
the scope of the independent medical examinations (“IMEs”) requested in their Motions.
Those documents are considered as part of the evidence in this case and no other
evidence was added to the record. Therefore, the Court closed the evidentiary portion of
the hearing. The parties presented further oral argument.
II.
BACKGROUND
This case arises out of “a July 3, 2013[,] tractor trailer collision between Plaintiff
William L. Talbott, Jr.[,] and Defendant David L. Boling, who is now deceased.” Notice of
Removal at 2, ECF No. 1. Plaintiff alleges that Mr. Boling, who was operating a tractor
trailer, “rear ended his [vehicle] as a result of following too closely as they traveled
southbound on I-81 near Martinsburg, West Virginia.” Id. Plaintiff requests damages for,
inter alia, medical bills, loss of past and future wages, future medical care and past and
future pain and suffering. Id. at 4-5.
III.
A.
DISCUSSION
Contentions of the Parties
Defendants seek an order compelling Plaintiffs to submit to two IMEs under
Federal Rule of Civil Procedure 35: (1) a medical examination conducted by Neurologist
David Buchholz, M.D. and (2) a vocational examination conducted by H. Gray Broughton,
CRC, CCM. Defendants assert that Plaintiff=s physical condition and his future
employability are both at issue such that good cause exists to compel the IMEs under
Rule 35. Plaintiffs oppose the examinations because they contend Defendants have not
shown that good cause for the examinations exists.1 Defendants also request that the
Court extend the deadlines for the parties to conduct IMEs and to disclose Defendants’
expert witnesses.
B.
Analysis of Defendants’ Motions
1. Defendants’ Motion to Compel Mr. Talbott to Attend an IME in Lutherville,
Maryland [ECF No. 37]
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
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Plaintiffs also object on the grounds that the IMEs are untimely and that Dr. Buchholz is biased.
Resp., ECF No. 46. These objections are without merit. The IMEs could have been conducted in
a timely manner if Plaintiffs had not opposed them. Additionally, bias is an issue Plaintiffs may
address through cross-examination.
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licensed or certified examiner. Fed. R. Civ. P. 35(a)(1). The order may be made on motion
and for good cause. Fed. R. Civ. P. 35(a)(2)(A). “The law is well-settled that the >in
controversy= and >good cause= 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. United States, 2013 WL
6195730 (S.D. W. Va. 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. For example, in a negligence action where the plaintiff asserts a
mental or physical injury, Athat 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.
In the present case, Mr. Talbott’s medical condition and future employability are
clearly in controversy because Plaintiffs have alleged that Mr. Talbott suffered a “mild
traumatic brain injury.” Resp., ECF No. 46. Thus, the nature, extent, cause and
permanency of Mr. Talbott=s injuries are squarely at issue such that good cause for the
examinations exists.
Plaintiffs have requested that, if the Court grants the Motion for an IME with Dr.
Buchholz, they be allowed to record the IME. Courts have generally denied these
requests. See, e.g. Abdulwali v. Washington Metro Area Transit Auth., 193 F.R.D. 10, 14
(D.D.C. 2000) (denying the plaintiff’s request to record a psychiatric examination because
“the presence . . . of camera/video equipment or of recording devices is inimical to the
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success of such an examination because it/they distort psychological openness and
spontaneity [and] may invalidate the examination findings and an inference that may be
drawn therefrom”).
Therefore, the Court finds that Defendants have adequately informed Plaintiffs of
the scope of the IME and that, given the nature of Plaintiffs injury claims, the IME by Dr.
Buchholz is within the scope provided for in Rule 35(a). Further, Plaintiffs’ request to
record the IME is denied.
2. Defendant’s Motion to Compel Mr. Talbott to Submit to a Rule 35
Examination by Defendants’ Vocational Expert [ECF No. 38]
Some Federal District Courts have ruled that a vocational examination is not within
the scope of the language of Rule 35. See, e.g., Storms v. Lowe's Home Centers, Inc.,
211 F.R.D. 296, 298 (W.D. Va. 2002) (stating that “[t]he undersigned is of the view that
where a party seeks a mere vocational assessment not connected with any physical or
mental examination, as is the case here, Rule 35 is not implicated”). Others have ruled
that it is. See, e.g., Jefferys v. LRP Publications, Inc., 184 F.R.D. 262, 263 (E.D. Pa. 1999)
(stating that “the requested [vocational] examination is permitted under Rule 35”). In this
district, Magistrate Judge James E. Seibert has ruled that vocational examinations may
be conducted pursuant to Rule 35. Long v. M&M Transp., LLC, No. 3:13-CV-65, 2014 WL
235517, at *4 (N.D. W. Va. Jan. 22, 2014) (rejecting Plaintiff’s argument that vocation
examinations are not allowed under Rule 35). Therefore, the Court is left only to
determine whether “in controversy” and “good cause” exist.
In this case, Plaintiffs have clearly brought “in controversy” Mr. Talbott’s loss of
future wages, loss of earning capacity, etc. Therefore, the only issue before this court is
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whether there is “good cause” for the vocational examination. In Schlagenhauf v. Holder,
379 U.S. 104 (1964), the United States Supreme Court explained that:
[Good case r]equire[s] 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. Obviously, what may be good cause for one type of
examination may not be so for another. The ability of the movant to obtain
the desired information by other means is also relevant.
Schlagenhauf, 379 U.S. at 118.
Some Federal District Courts have ruled that, where there is access to ample
medical evidence relating the condition of the plaintiff, there is not “good cause” for a
vocational examination under Rule 35. Shumaker v. West, 196 F.R.D. 454 (S.D. W. Va.
2000). Some of the factors courts have taken into consideration for vocational
examinations are: access to the medical records, opportunity to depose the plaintiff and
whether the results of tests performed by Plaintiffs’ vocational expert were disclosed. Id.
In this case, Defendants’ Vocational Expert, Mr. Broughton, has received
information needed to allow him to perform his evaluation. However, Mr. Broughton is
requesting an interview to confirm the accuracy of the information he already possesses.
Further, Mr. Broughton has stated that he must “observe the person being assessed as to
how they answer questions, how they present themselves,” etc. Defs.’ Ex. B-1 at 2, ECF
No. 51-2. In addition, Mr. Talbott has not been deposed at this time. Although most, if not
all, of the information needed to perform the evaluation is available, the Court finds good
cause to allow the interview. Since this is primarily an interview for purposes of
observation and confirmation, the Court is going to allow Plaintiff to participate by video
conference if he so chooses. Accordingly, the Court finds good cause for Defendants’
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request for a vocational examination, in which Mr. Talbott may participate in person or
through a video conference. Defendants will be responsible for Plaintiffs’ reasonable
expenses related to the vocational examination.
3. Defendant’s Motion to Extend Time for Them to Conduct Rule 35
Examinations and to Disclose Expert Witnesses [ECF No. 40]
After Plaintiffs disclosed their expert witnesses, Defendants attempted to conduct
their IMEs prior to the scheduling deadline. Because Defendants were forced to file these
Motions to Compel, those scheduling deadlines cannot be met.
The Court finds that good cause has been shown for an extension of the deadlines
in this case and orders the parties to submit a proposed modified scheduling order within
seven (7) days.
IV.
CONCLUSION
For the reasons herein stated, the undersigned finds that the Defendants have
adequately informed Plaintiffs of the scope of the IMEs requested and that, given the
nature of Plaintiffs injury claims, the IME by Neurologist, Dr. Buchholz, and Vocational
Expert, Mr. Broughton, are within the scope provided for in Rule 35(a). Additionally, the
undersigned finds good cause exists to extend the deadlines for the parties to conduct
IMEs and to disclose Defendants’ expert witnesses. Accordingly, it is
ORDERED that Defendants’ Motion to Compel Mr. Talbott to Attend an IME by
Neurologist Dr. Buchholz [ECF No. 37 ] is GRANTED. Further, Plaintiffs’ request to
videotape, audiotape or otherwise record the IME is DENIED. Defendants will pay all of
Plaintiffs’ reasonable expenses related to the IME. By stipulation of the parties, this IME
will occur on April 28, 2016. It is further,
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ORDERED that Defendants’ Motion to Compel Mr. Talbott to Submit to an IME by
Vocational Expert Mr. Broughton [ECF No. 38] is GRANTED. For this IME, it is further
ORDERED that Mr. Talbott may choose whether to undergo this examination at Mr.
Broughton’s office or by video conference. If Mr. Talbott chooses to undergo the
examination by video conference, no other person may be present with Mr. Talbott while
the examination is underway and no party may videotape, audiotape or otherwise record
or view the examination in any manner. Defendants will pay all of Plaintiffs’ reasonable
expenses related to the examination. By stipulation of the parties, this examination should
occur on or before May 2, 2016. It is further,
ORDERED that Defendants’ Motion to Extend Time [ECF No. 40] is GRANTED.
The parties shall submit a joint proposed modified scheduling order within seven (7) days
of the date of this Order.
The Clerk of the Court is directed to provide a copy of this Order to parties who
appear pro se and all counsel of record, as applicable, as provided in the Administrative
Procedures for Electronic Case Filing in the United States District Court for the Northern
District of West Virginia.
DATED: April 22, 2016
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