Gonzales v. Marshall University Board of Governors

Filing 75

MEMORANDUM OPINION AND ORDER DENYING MOTION TO COMPEL AN INDEPENDENT PSYCHOLOGICAL EXAMINATION denying Defendant's 55 MOTION to Compel an Independent Psychological Examination. Signed by Magistrate Judge Cheryl A. Eifert on 4/10/2019. (cc: counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
ALICIA GONZALES,
Plaintiff,
v.

Case No.: 3:18-cv-00235

MARSHALL UNIVERSITY
BOARD OF GOVERNORS,
Defendant.

MEMORANDUM OPINION AND ORDER
DENYING MOTION TO COMPEL AN
INDEPENDENT PSYCHOLOGICAL EXAMINATION
Pending is Defendant’s Motion to Compel an Independent Psychological
Examination. (ECF No. 55). Plaintiff has filed a Response in Opposition to the Motion,
(ECF No. 64), and Defendant has filed a reply memorandum. (ECF No. 72). Plaintiff
argues that the motion should be denied, because it is untimely and is not supported by
good cause. Having considered the record and the arguments of counsel, the undersigned
agrees that the motion is untimely. Furthermore, Defendant has failed to demonstrate
reasonable diligence that would justify its delay in pursuing the independent
psychological examination. Therefore, the motion is DENIED.
Fed. R. Civ. P. 35 allows the court where an action is pending 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 a
motion for good cause and on adequate notice to all parties. While Rule 35 is included in

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the section of the civil rules pertaining to disclosures and discovery, the Rule itself does
not include any guidance as to when in the discovery process an examination must be
completed, or an examiner’s report produced.
Federal courts have not agreed on whether Rule 26 and Rule 35 are intended to be
read independently or in conjunction with each other. See Manni v. City of San Diego,
Case No. 11-cv-0435-W (DHB), 2012 WL 6025783, at *3 (S.D. Cal. Dec. 4, 2012)
(collecting cases). If read together, reports issued under Rule 35 are subject to Rule
26(a)(2)’s disclosure requirements. This position has been taken on more than one
occasion by courts in this district; most recently, in Stratford v. Brown, No. 2:17-CV03963, 2018 WL 4623656, at *3 (S.D.W. Va. Sept. 26, 2018) (“As a preliminary matter,
the Court is persuaded that Rules 26 and 35 act in tandem when determining whether to
permit a Rule 35 examination requiring subsequent disclosure of the related report.”); see
also Zumstein v. Boston Scientific Corp, No. 2:13-cv-02344, 2014 WL 7236406, at *3
(S.D.W. Va. Dec. 17, 2014); Shumaker v. West, 196 F.R.D. 454, 456 (S.D.W. Va. 2000).
However, even when courts have found a clear distinction between Rule 26 and Rule 35,
such that “a Rule 35 exam does not necessarily have to be requested prior to expiration of
the expert disclosure and discovery deadline ... the distinction evaporates when the
moving party attempts to use the Rule 35 examiner and Rule 35 report in the place of a
Rule 26(a)(2) expert and expert report.” Perez v. Viens, Case No. 4:09-cv-3206, 2011 WL
855673, at *3 (D. Neb. Mar. 8, 2011) (citations omitted); Gibson v. Jensen, No.
8:16CV296, 2017 WL 2982952, at *2–3 (D. Neb. July 12, 2017) (“[W]hen a Rule 35
examination is used to supplement or inform an expert’s opinions for use at trial, the
difference between the reports disappears, or begins to, and the court becomes more
reluctant to allow a Rule 35 examination for the purpose of bolstering an expert’s opinions
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out of time.”). In other words, when the independent medical examination is performed
for the purpose of providing, developing, or supplementing expert opinions, then courts
tend to agree that the witness and report are subject to the Rule 26(a)(2) deadlines.
In this case, a scheduling order was entered on April 18, 2018, which allowed
Defendant through and including December 3, 2018 in which to make expert disclosures
under Fed. R. Civ. P. 26(a)(2)(A). (ECF No. 10). The parties were given until December
14, 2018 to complete discovery requests, and until February 1, 2019 to conduct
depositions. February 1, 2019 was also the discovery deadline. (Id.). The scheduling order
was modified, in part, on December 26, 2018, extending the deadline for conducting
depositions to April 15, 2019. (ECF No. 37). Notably, the deadlines for submitting expert
disclosures and for serving discovery requests were not extended at that time.
On December 3, 2018, Defendant filed a Rule 26(a)(2)(A) disclosure, identifying
David Clayman, a psychologist, as an expert witness on the subject of Plaintiff’s emotional
health. (ECF No. 26). The disclosure included a report prepared by Dr. Clayman on
November 29, 2018. (ECF No. 64-1). In the report, Dr. Clayman advised that he required
additional materials to complete his opinions. He also requested the opportunity to
conduct an independent psychological examination. (Id. at 2).
On December 18, 2018, Defendant’s counsel requested Plaintiff’s agreement to
participate in an independent psychological examination. (ECF No. 55-2). Plaintiff’s
counsel refused the following day, but indicated that she might reconsider if provided
with additional information. (ECF No. 55-3). Apparently, defense counsel made no
further efforts to communicate with Plaintiff’s counsel regarding the proposed
examination; instead, more than three months later, Defendant filed the instant motion
seeking an order to compel the examination. (ECF No. 64 at 2).
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It is undisputed that Defendant’s motion comes well past the deadlines for filing
expert reports and for serving discovery requests, both of which expired in December
2018. Indeed, the motion was filed only twenty days before the close of all discovery and
right on the heels of the deadline for filing dispositive motions. Moreover, Defendant
provides absolutely no explanation for its delay in pursuing an independent psychological
examination despite its expert’s written request for one, which was made nearly four
months before the motion was filed.
In order to grant Defendant’s motion, deadlines in the scheduling order that have
already passed, or that will pass in a matter of days, will have to be extended. To justify
the extension of a past deadline, Defendant must show “excusable neglect” and, to extend
a future deadline, Defendant must demonstrate “good cause.” Stratford, 2018 WL
4623656, at *3 (holding that Rule 16(b) requires good cause to amend a scheduling order;
“[a]dditonally, when a motion to modify a deadline is filed after the deadline's passage,
the party also must establish “excusable neglect.”). “To establish good cause, [Defendant]
must show the deadlines cannot reasonably be met despite the [Defendant’s] diligence;
good cause is lacking if the movant has not acted diligently to comply with the schedule.”
Jackson v. United States, No. 3:14-15086, 2016 WL 502056, at *2 (S.D.W. Va. Feb. 8,
2016) (citing Cook v. Howard, 484 F. App'x 805, 815 (4th Cir. 2012)). Excusable neglect
is more difficult to establish, depending upon a review of all relevant factors, with “the
reason for the delay, including whether it was within the reasonable control of the
movant” carrying the most significance. Stratford, 2018 WL 4623656, at *2 (quoting
Thompson v. E.I. DuPont Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996)).
When conducting the requisite analysis, the undersigned finds that Defendant fails
to demonstrate either excusable neglect or good cause. First, as stated, Defendant
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supplies no rationale whatsoever for allowing the matter to sit, gathering dust, for more
than three months. Plaintiff’s counsel invited a discussion on the subject, but for reasons
again unknown, defendant’s counsel simply let the conversation lapse.
On December 20, 2018, one day after Plaintiff’s refusal to submit to an
independent examination, Defendant moved to modify the scheduling order and continue
the trial date, but did not raise the issue of an independent medical examination or seek
an extension of the expert disclosure or discovery request deadlines. (ECF No. 34).
Instead, Defendant asked only that the deposition deadline be extended, which
consequently forced a continuance of the deadlines for dispositive motions, settlement
and pretrial conferences, the pretrial order, and the trial date. (ECF Nos. 34, 37).
Defendant’s motion was granted, extending the deposition deadline and moving back the
remaining dates, including the trial date, by approximately two and half months. Had
Defendant brought the issue of the examination to the Court’s attention at that time, the
dispute could have been resolved and the time frames for the independent examination
incorporated into the amended scheduling order.
In addition, by disregarding, or overlooking, the examination for an additional
three months, Defendant lost good opportunities to have the examination conducted at
times that would have been most convenient for Plaintiff, who is a fulltime student at a
college in Pennsylvania. If Defendant had resolved the dispute in mid-December, the
examination might have taken place during Plaintiff’s Winter or Spring break. However,
Defendant’s inexplicable delay now leaves Plaintiff in the position of having to leave
school while classes are ongoing, a few weeks before final examinations, to submit to a
lengthy psychological examination that should have been performed months ago. The
only other alternative is to wait until mid-May when Plaintiff is no longer in school, which
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would further delay the resolution of this case.
Finally, the discovery sought by Defendant, as Plaintiff points out, is likely to lead
to additional discovery. Stratford, 2018 WL 4623656, at *3 (noting that “there is a ripple
effect necessarily caused by a Rule 35 examination ordered after Rule 26 disclosure
deadlines.”). At the very least, Plaintiff will want an opportunity to respond to or refute
the outcome of the examination, which may result in further extensions of pretrial
deadlines. Taking into account all of the circumstances, the Court concludes that
Defendant has not been diligent in pursuing an independent medical examination and
thus has failed to provide reasonable grounds to accommodate such a request at this late
date.
Defendant relies upon Zumstein, 2014 WL 7236406, in support of its motion.
Zumstein is readily distinguishable from the instant matter. In Zumstein, a multidistrict
litigation in which counsel were developing waves of 100 cases at a time, defense counsel
waited approximately one month after being notified by Plaintiffs’ counsel that all of the
plaintiffs were being examined before asking for an independent medical examination of
one of the plaintiffs. When Plaintiff objected that the defense examination would not take
place before Defendant’s expert report was due, defense counsel argued that they were
unable to determine the need for defense examinations until Plaintiffs’ expert reports
were produced. Upon receiving the reports and identifying the one plaintiff that should
be examined, defense counsel diligently began scheduling the examination. However, the
earliest date that could be secured for the examination was one month after Defendant’s
expert reports were due. Defense counsel argued that even with this delay, which would
result in a supplementation of the defense expert’s report, the report still would be
available reasonably in advance of the scheduled deposition of Defendant’s examining
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expert.
Clearly, the circumstances in Zumstein were much different than those in this case.
Counsel in Zumstein provided a reasonable explanation as to why the request for an
examination was not made until the expert reports were received, and then counsel
demonstrated diligence in pursuing and scheduling the examination. In addition, the
examination was scheduled within one month after the deadline for expert reports, and
the supplemental report resulting from the examination was available prior to the
previously scheduled deposition of the examining expert. Due to the unique scheduling
order in place in the wave cases, the delay in performing the defense examination did not
require the modification of other deadlines. Therefore, the facts before the Court in
Zumstein satisfied the good cause standard for supplementation of expert reports, which
was the standard contained in the docket control order. That simply is not the case here.
As such, Defendant’s motion is denied.
The Clerk is directed to provide a copy of this Order to counsel of record.
ENTERED: April 10, 2019

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