United States District Court, E.D. North Carolina, Western Division
B. Jones, Jr. United States Magistrate Judge.
matter is before the court on Defendants' motion to
compel physical examinations of Plaintiffs C.T., M.T., and
E.M. (the "Minor Plaintiffs") pursuant to Rule 35
of the Federal Rules of Civil Procedure. [DE-40]. Plaintiffs
have responded in opposition to the motion. [DE-43]. The
court directed the parties to confer on additional matters
and submit additional information relevant to the motion,
[DE-45], and the parties have done so. [DE-47, -48]. The
issues have now been fully briefed, and the motion is ripe
for decision. For the reasons stated below, Defendants'
motion is allowed.
Lamar Tummings and Veronica Tummings leased an apartment from
Defendants in Apex, North Carolina. Compl. [DE-1-2] ¶
24; Defs.' Mem. [DE-42] at 2. In May 2018, Plaintiffs
filed this action alleging that harmful mold was present in
the apartment and that Defendants failed to remediate the
contamination. Compl. [DE-1-2] ¶¶ 32, 34, 36, 38,
40. Plaintiffs allege Minor Plaintiffs began experiencing
respiratory issues and allergies, and continue to suffer from
asthma caused by the mold. Id. ¶¶ 40,
52-54. Plaintiffs assert further they have suffered health
issues, personal injury, mental and emotional distress, pain
and suffering, and medical expenses as a result of
Defendants' acts or omissions. Id. ¶ 58. On
October 30, 2018, Plaintiffs relocated to South Korea.
Defs.' Mem. [DE-42] at 2.
January 3, 2018-before Plaintiffs filed this
action-Plaintiffs' counsel consented to a physical
examination of the Minor Plaintiffs. [DE-40-11]; Pl.'s
Mem. [DE-43] at 1. According to Defendants, the parties
agreed that it was necessary for Plaintiffs to provide
medical records before the examinations. Defs.' Mem.
[DE-42] at 3; [DE-40-12]. Also according to Defendants,
Plaintiffs did not provide the records, and because the
deadline to designate expert witnesses is now approaching,
Defendants decided to conduct the examinations despite the
lack of medical records. Defs.' Mem. [DE-42] at 4.
According to Plaintiffs, Defendants did not mention the
physical examinations from January 2018, when Plaintiffs had
initially consented to the examinations, until fifteen months
later, after Plaintiffs had moved to South Korea. Pl.'s
Mem. [DE-43] at 3.
April 2, 2019, Defendants' counsel sent a letter
requesting that Plaintiffs provide dates during the week of
May 6, 2019 on which the Minor Plaintiffs could be examined
by a physician in Raleigh, North Carolina. [DE-43-7] at 2-3.
Plaintiffs' counsel responded on April 12, 2019 that it
would be a hardship for the Minor Plaintiffs to be examined
in Raleigh. [DE-43-8] at 2. Plaintiffs agreed that the
children could be examined in South Korea, or they could be
examined in North Carolina if Defendants were willing to pay
their travel expenses. Id. at 3.
filed this motion to compel on April 23, 2019, [DE-40], and
Plaintiffs responded in opposition, [DE-43]. In its review of
the parties' briefing, the court found that additional
meet and confer efforts were necessary, and therefore
directed Defendants' counsel to provide Plaintiffs'
counsel with the information required by Fed.R.Civ.P.
35(a)(2)(B) (the "time, place, manner, conditions, and
scope of the examination, as well as the person or persons
who will perform it"). The court also directed
Plaintiffs' counsel to provide Defendants' counsel
with dates when the Minor Plaintiffs could be available to
appear in North Carolina, and Defendants' counsel to file
a notice setting forth any issues remaining in dispute.
[DE-45]. According to Defendants' notice filed May 24,
2019, the remaining issues in dispute include: (1) whether
the Minor Plaintiffs should undergo skin prick allergy and/or
blood allergy tests, (2) which party should pay
Plaintiffs' travel expenses, and (3) whether, as an
alternative, the court should stay the proceedings until
Plaintiffs return to the United States or can more fully
participate in the lawsuit. [DE-48] at 3.
enables the court to "order a party whose mental or
physical condition ... is in controversy to submit to a
physical or mental examination." Fed.R.Civ.P. 35(a)(1).
The examination may only be ordered "for good
cause." Fed.R.Civ.P. 35(a)(2)(A). The court must
determine (1) whether the condition to be examined is
"in controversy" and (2) whether "good
cause" exists for the examination. Walton v. N.C
Dep't of Agric. & Consumer Servs., No.
5:09-CV-302-FL, 2011 WL 883579, at *2 (E.D. N.C. Mar. 11,
2011). "In controversy" and "good cause"
"are distinct concepts which must be addressed
separately." Id. (citations omitted).
plaintiff asserts a mental or physical injury, he
"places that mental or physical injury clearly in
controversy." Schlagenhauf v. Holder, 379 U.S.
104, 119 (1964); see also Peltier v. Charter Day Sch,
Inc., No. 7:16-CV-30-H, 2017 WL 4582459, at *1 (E.D.
N.C. Jan. 6, 2017) (denying a Rule 35 motion for a mental
examination because "Plaintiffs have pled no cause of
action placing their mental state at issue");
Walton, 2011 WL 883579, at *3 (holding that
"the plaintiffs mental condition is clearly in
controversy" because the plaintiff asserted claims for
severe emotional distress); Smith v. Bd. of Governors of
the Univ. of N.C, No. 7:08-CV-30-D, 2008 WL 4877131, at
*1 (E.D. N.C. Nov. 10, 2008).
parties dispute whether the Minor Plaintiffs should undergo
allergy testing. [DE-48]. In their complaint, Plaintiffs
allege that Minor Plaintiffs C.T. and M.T. developed
allergies from the mold. Compl. [DE-1-1] ¶¶ 52-53.
They allege that Minor Plaintiff E.M. developed
"respiratory problems" from the mold. Id.
¶54. Plaintiffs contend that the development of asthma
is their "principal allegation," [DE-48] at 3, but
they do not renounce their initial claim for damages for the
Minor Plaintiffs' allergies and respiratory problems. In
addition to the allergy tests, Defendants request an asthma
evaluation and a spirometry test, and, depending on the
results of those tests, a complete blood count test, chest
x-ray, and nitric oxide test for each of the Minor
Plaintiffs. [DE-47] at 2. Plaintiffs claim that all three of
the Minor Plaintiffs developed asthma and respiratory
problems. Compl. [DE-1-1] ¶¶ 52-54. Plaintiffs have
thus placed the respiratory conditions of the Minor
Plaintiffs in controversy. See Walton, 2011 WL
883579, at *3. Accordingly, whether the Minor Plaintiffs have
developed allergies, asthma, or other respiratory problems
caused by the mold in the apartment is an issue in
controversy. See Schlagenhauf v. Holder, 379 U.S. at
cause "means more than relevancy."
Peltier, 2017 WL 4582459, at *1. "[T]he
invasion of the individual's privacy by a physical or
mental examination is so serious that a strict standard of
good cause, supervised by the district courts, is manifestly
appropriate." Guilford Nat. Bank of Greensboro v. S.
Ry. Co.,297 F.2d 921, 924 (4th Cir. 1962). Courts have
found good cause for an examination when it is needed
"in order to defend against the claim,"
Smith, 2008 WL 4877131, at *2, when "an
independent examination is necessary to provide a
counter-expert opinion in response to the expert opinions
offered by plaintiffs health care providers,"
Walton, 2011 WL 883579, at *3, or "[w]here the
average lay person would have difficulty evaluating the