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Blakeney v. Norfolk Southern Railway Co.

United States District Court, M.D. North Carolina

February 26, 2019



          L. Patrick Auld United States Magistrate Judge

         This case comes before the Court on Defendant's Motion to Compel Physical Examination of Plaintiff (Docket Entry 30). Because the Court does not find the requisite “good cause, ” Fed.R.Civ.P. 35(a)(2), it will deny the instant Motion.


         Plaintiff commenced this action by filing a Complaint against Defendant under the Federal Employer's Liability Act, 45 U.S.C. §§ 51 et seq. (See Docket Entry 1.) According to the Complaint, “on May 10, 2016 while employed as a Truck Driver/Track Laborer for Defendant . . ., Plaintiff fell to the ground with great force while removing a Fifty (50) pound heavy steel hydraulic spike hammer from the rear tool bed and compartment of [his] assigned gang truck.” (Id. at 2.) The Complaint attributes Plaintiff's fall to the negligence of Defendant (see Id. at 2-3) and alleges that the fall caused “serious, painful and permanent injuries to [Plaintiff's] head, neck, back, shoulder and related body parts, [as well as] psychological injuries” (id. at 4). These injuries allegedly “caused [Plaintiff] to undergo medical treatment, psychological treatment, diagnostic tests, physical therapy, use of necessary medications, MRI's[, ] FCE's, and x-rays, [as well as] surgery to try and limit the pain and discomfort and limitations[, ] and will require future medical treatment.” (Id.; see also Id. (“Plaintiff . . . will in the future be caused to expend further great sums for medical treatment. Plaintiff . . . will in the future have pain, suffering and mental anguish as a result of Defendant's negligence. Plaintiff's ability to work, labor, and enjoy the normal pursuits of life has been impaired and lessened . . . .” (paragraph No. omitted)).) Defendant answered and admitted that Plaintiff fell while in its employ, but denied his allegations of negligence and injury. (See Docket Entry 10 at 2.)

         Discovery began on or about October 18, 2017 (see Text Order dated Oct. 18, 2017 (adopting Certification and Report of Joint Rule 26(f) Conference and Discovery Plan (“Discovery Plan”) (Docket Entry 12)); see also Docket Entry 12 at 1 (“[Federal] Rule [of Civil Procedure] 26(a)(1)(A) Initial Disclosures shall be exchanged on October 31, 2017.”)), and closed on August 30, 2018 (see Text Order dated July 2, 2018). Since January 22, 2018, the parties have known that any trial would occur during the April 2019 Civil Master Calendar term. (See Docket Entry 14.)

         The Discovery Plan proposed by the parties and adopted by the Court mandates “[s]upplementations under [Federal] Rule [of Civil Procedure] 26(e) . . . within a reasonable time upon learning that a disclosure or response to a discovery request is incorrect or incomplete in some material respect.” (Docket Entry 12 at 2.) It also authorizes, “if necessary, depositions of expert witnesses, including treating doctors, [to] be taken outside the discovery period by stipulation of the parties or by order of the Court on good cause shown no later than 21 days prior to trial.” (Id.)[1]

         In addition, pursuant to the Discovery Plan, Plaintiff and Defendant had to serve any expert disclosures under Federal Rule of Civil Procedure 26(a)(2)(B) and (C) by March 30 and April 30, 2018, respectively. (See id.; see also Id. (allowing Plaintiff until May 30, 2018, to serve rebuttal expert disclosures).) On June 25, 2018, Defendant confirmed that it did “not anticipate introducing expert testimony from any retained expert. . . . [H]owever, [it] reserve[d] the right to introduce expert testimony from any of the treating physicians identified . . . in Plaintiff's expert disclosures . . . relate[d] to their treatment and care of [him] and their knowledge and opinion of his medical condition.” (Docket Entry 35-1 at 2; see also Id. (“[T]his letter constitutes notice that [Defendant] may also call any of the non-retained experts identified by Plaintiff on topics identified by Plaintiff.”).)

         On October 24, 2018, Defendant notified Plaintiff that it “intend[ed] to move under [Federal] Rule [of Civil Procedure] 35 and Local Rule 26.1(e) for an order requiring [him] to submit to a physical examination by one or more physicians sometime in the early part of [2019].” (Docket Entry 32-4 at 1; see also Id. (seeking Plaintiff's consent).) After several follow-up inquiries by Defendant about whether Plaintiff would agree to a physical examination (see Docket Entry 36-1 at 2-6), on December 4, 2018, Plaintiff requested information about how Defendant “plan[ned] to use th[e physical examination] report” (id. at 2). Defendant promptly responded that it “would expect to use the [physical examination] report at trial as provided and allowed under the [Federal] Rules of Civil Procedure and Local Rules.” (Id.) Plaintiff immediately asked: “[W]ould [Defendant] present the [physical examination report] through the medical [examiner] subject to cross?” (Id. at 1.) Two days later, Defendant answered that it “would expect to be able to present the [physical examination] report through testimony of the examining doctor (who would of course be subject to cross) and/or [to] use the report to cross-examine any medical witnesses called by [ P]laintiff.” (Id.) On January 13, 2019, Plaintiff declined to consent to a physical examination. (See Docket Entry 36-2 at 1.)

         Defendant filed the instant Motion on January 29, 2019. (See Docket Entry 30; see also Docket Entry 31 (Brief in Support).) Plaintiff has responded in opposition (see Docket Entry 35) and Defendant has replied (see Docket Entry 36).


         The instant Motion asks “this Court to order the physical examination of Plaintiff [] prior to trial.” (Docket Entry 30 at 1; see also Id. at 2 (describing proposed examiner as “board-certified in occupational medicine” with “over 25 years of experience in occupational medicine”).) “The court where the action is pending may 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, ” Fed.R.Civ.P. 35(a)(1); however, “[t]he order . . . may be made only on motion for good cause, ” Fed.R.Civ.P. 35(a)(2) (emphasis added); see also M.D. N.C. LR 26.1(e) (“For good cause appearing therefor, the physical or mental examination of a party may be ordered at any time prior to trial.”). Although generally “[a] plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury, ” Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964) (internal citation omitted), “[t]he ability of the movant to obtain the desired information by other means is also relevant, ” Id. at 118; see also Equal Empl't Opportunity Comm'n v. Maha Prabhu, Inc., No. 3:07CV111, 2008 WL 2559417, at *2 (W.D. N.C. June 23, 2008) (unpublished) (“[[T]he part[y moving for a physical or mental examination] must show necessity . . . . [G]ood cause does not exist where the desired information could have been obtained through less invasive tools of discovery. Thus, necessity arises where . . . other means of obtaining information [about a party's alleged injuries] are exhausted.” (internal citation omitted)).

         The instant Motion argues that good cause supports Defendant's request for a physical examination of Plaintiff because:

The testimony of Plaintiff and his treating physicians, given at discovery depositions between May and July 2018 (at least nine months before the scheduled trial date), indicates that Plaintiff may still be undergoing additional medical treatment and his medical condition may still be changing. Therefore, by the time of trial, his medical condition likely will not be accurately reflected in the medical records and testimony previously provided during discovery.

(Docket Entry 30 at 2 (emphasis added); see also Docket Entry 31 at 4-5 (“Plaintiff and his treating physicians have testified regarding his physical condition and treatment, but that testimony will be at least nine months out-of-date by the time of trial.

         Furthermore, . . . Plaintiff was still seeking and receiving additional treatment for his alleged injuries at the close of discovery, and at least one of his treating physicians acknowledged that his physical condition could change prior to trial. As a result, the medical records and testimony obtained during discovery will not be sufficient to show [his] physical condition at the time of trial.”).) As support for the foregoing assertions, Defendant's Brief in Support of the instant Motion discusses (and attaches excerpts from the transcripts of) the depositions of Plaintiff and two of his doctors (Durwin Brooks and Eliot Lewit). (See Docket Entry 31 at 2-3 (referencing Docket Entries 32-1, 32-2, 32-3).)

         In the attached transcript excerpts from his deposition on May 1, 2018, Plaintiff testified that:

1) Dr. Brooks “recommended surgery but [said] that [Plaintiff] didn't have to have it right [then]” (Docket Entry 32-1 at 2);
2) Plaintiff “just had a MRI . . . and [needed] to go back to talk to Dr. Brooks about it” (id. at 3); and
3) “to address [Plaintiff's] headaches, ” Dr. Lewit prescribed “medication” and, “every two . . . [or] three months, ” Plaintiff had been and was ...

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