Pauley v. United States of America

Filing 55

MEMORANDUM OPINION AND ORDER GRANTING INDEPENDENT MEDICAL EXAMINATION granting Defendant's 47 FED.R.CIV.P. 35 MOTION to Require Plaintiff Riley Johnson to Appear for a Medical Examination; directing Plaintiff to make Riley available for examination. Signed by Magistrate Judge Cheryl A. Eifert on 11/27/2013. (cc: attys; any unrepresented party) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SHAWNA PAULEY, parent and natural
guardian of RILEY JOHNSON, a minor,
Plaintiff,
v.

Case No.: 3:12-cv-08558

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING INDEPENDENT MEDICAL EXAMINATION
Pending before the court is Defendant’s Motion Under Rule 35 to require Plaintiff
Riley Johnson to Appear for a Medical Examination. (ECF No. 47). Plaintiff filed a
response in opposition of the motion, (ECF No. 50), and Defendant has replied. (ECF
No. 53). The legal issues are clear; therefore, a hearing on the motion is unnecessary.
Having fully considered the arguments of counsel, the court GRANTS Defendant’s
motion for an independent medical examination of Riley Johnson.
Plaintiff Shawna Pauley claims that employees of the Family Health Care Center,
a federally operated clinic, were negligent and reckless in their management of her labor
and delivery, causing permanent neurological injury to her unborn child, Riley Johnson.
Defendant argues that it is entitled to an independent medical examination of Riley’s
neurological status by an expert of its choosing given that Plaintiff has placed Riley’s
medical condition in controversy and seeks damages for past and future medical
expenses, loss of future earning capacity, past and future physical and mental pain and
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suffering, and loss of enjoyment of life. In response, Plaintiff concedes that she claims
physical and mental injuries to Riley, but asserts that Defendant cannot meet the “good
cause” and “in controversy” requirements of Fed.R.Civ.P. 35. According to Plaintiff,
Riley’s medical condition is so thoroughly and completely documented in the records of
her treating physicians that her condition is not “in controversy.”
Federal Rule of Civil Procedure 35 authorizes the court to order a party “whose
mental or physical condition ... is in controversy to submit to a physical or mental
examination by a suitably licensed or certified examiner.” The order may only issue on
good cause and adequate notice and “must specify the time, place, manner, condition,
and scope of the examination, as well as the person or persons who will perform it.”
Fed.R.Civ.P. 35(a)(2). 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.” Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234,
13 L.Ed.2d 152 (1964). Nonetheless, “there are situations where the pleadings alone are
sufficient to meet these requirements.” Id. at 119. One such situation is a negligence
action in which a plaintiff asserts mental or physical injury, placing “that mental or
physical injury clearly in controversy and [providing] the defendant with good cause for
an examination to determine the existence and extent of such asserted injury.” Id.
In the present case, Riley’s medical condition is plainly in controversy. Plaintiff
claims that the acts or omissions of Defendant caused neurological injuries to Riley that
are extensive, permanent, and totally disabling. Defendant denies these claims. Thus,
the nature, extent, cause, prognosis, permanency, and consequences of Riley’s
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neurological impairments are at issue. Defendant requests an independent medical
examination in order to determine the extent and nature of Riley’s alleged injuries, the
cause of the alleged hypoxic event that led to the injuries, and whether the alleged
injuries were the result of some other event. (ECF No. 53 at 2). Consequently, Defendant
has asserted good cause for the examination. See Holland v. United States, 182 F.R.D.
493, 494 (D.S.C. 1998); Whitley v. Comcast of Ga., Inc., Case No.: 3:05–cv–82 (CAR),
2006 U.S.Dist. LEXIS 89691, at *8, 2006 WL 6392943 (M.D.Ga. Dec. 11, 2006) (“Good
cause for ordering a physical examination exists when the examination would allow the
defendant's expert an opportunity to determine the cause and extent of the plaintiff's
alleged physical injuries.”).
Plaintiff’s contention that an examination is unnecessary in light of the available
documentation is unpersuasive. Defendant should not be forced to rely exclusively upon
Riley’s medical records and the testimony of her treating physicians to establish or
contest the nature and extent of her injuries. Funez v. Wal-Mart Stores East, LP, No.
1:12–cv–0259–WSD, 2013 WL 123566, at *7 (N.D.Ga. Jan. 9, 2013) (collecting cases);
see, also, Roberson v. Bair, 242 F.R.D. 130, 137 (D.D.C. 2007) (“Defendant has the right
to challenge Plaintiff's claim that she was harmed and that Defendant was the source of
that harm, and to secure from whatever source available information that will challenge
that claim.”). Moreover, Defendant should be permitted to counter Plaintiff’s expert
testimony by introducing opinions of its own expert that are based, in part, on evidence
obtained through the expert’s personal examination of the Plaintiff. Simon v. Bellsouth
Advertising and Pub. Corp., No. 3:09–CV–177–RJC–DCK, 2010 WL 1418322, at *4
(W.D.N.C. Apr. 1, 2010) (The need to counter plaintiff’s expert constitutes good cause
for an independent medical examination). Defendant is entitled to have “the benefit of
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an examination by a physician whose judgment counsel knows and respects.” Bennett v.
White Laboratories, Inc. 841 F.Supp. 1155, 1158 (M.D.Fla. 1993). While Defendant’s
expert can certainly review the voluminous documentation detailing Riley’s care and
treatment, his opinions will undoubtedly carry more weight if they are “based on a
personal examination, rather than on secondhand information.” Id. (“When it comes to
the credibility of a medical expert, there are few, if any, acceptable substitutes for a
personal physical examination.”). Accordingly, the availability of treatment records does
not, alone, preclude a finding of good cause for an independent medical examination.
Plaintiff does not challenge the qualifications of Defendant’s selected examiner, a
pediatric neurologist, nor does she claim that the proposed examination places Riley at
risk of harm. Indeed, the parameters of the examination as outlined by Defendant do
not appear to involve any invasive testing. In addition, Defendant agrees to make its
expert available for the examination at a location near Riley’s home. Therefore, the
Court finds that Defendant has established good cause under Rule 35 to conduct the
proposed independent medical examination of Riley Johnson, and Plaintiff is
ORDERED to make Riley available for examination.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTERED: November 27, 2013.

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