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Tummings v. CSP Community Owner, LP

United States District Court, E.D. North Carolina, Western Division

June 3, 2019

LAMAR TUMMINGS, et al., Plaintiffs,
v.
CSP COMMUNITY OWNER, LP, as the surviving entity from the merger with CSP Community Owner, LLC, et al, Defendants.

          ORDER

          Robert B. Jones, Jr. United States Magistrate Judge.

         This 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.

         I. BACKGROUND

         Plaintiffs 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.

         On 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.

         On 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.

         Defendants 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.

         II. DISCUSSION

         Rule 35 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).

         A. In Controversy

         When a 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).

         The 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 119.

         B. Good Cause

         Good 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 ...


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