United States District Court, M.D. Louisiana
NATALIE LANDRY, ET AL.
FARMLAND MUTUAL INSURANCE COMPANY, ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion to Compel Independent
Medical Examination (R. Doc. 40) filed on January 11, 2019.
The motion is opposed. (R. Doc. 49). Defendants have filed a
Reply. (R. Doc. 56).
action involves alleged injuries resulting from an automobile
crash. (R. Doc. 1-2).
discovery closed on November 13, 2018. (R. Doc. 15 at 1). The
deadline for defendants to provide expert reports is March
18, 2019, and the deadline to complete expert discovery is
April 19, 2019. (R. Doc. 35). Trial is set to commence on
October 7, 2019. (R. Doc. 15 at 2).
December 19, 2018, defense counsel scheduled independent
medical examinations (“IME”) for Natalie Landry
and Christopher Deville (“Plaintiffs”),
respectively, on January 22, 2019 and January 29, 2019. (R.
Doc. 40-2). The IMEs were scheduled to take place with Dr.
Paul van Deventer at his office in Covington, Louisiana.
Defendants assert that they requested the IMEs after
receiving Ms. Landry's life care plan on December 11,
2018. (R. Doc. 40-1 at 2).
counsel objected to the IMEs because they were unilaterally
scheduled, the location of the IMEs would require each of the
plaintiffs to drive over one hour, there are numerous
appropriate doctors in Baton Rouge, Louisiana, and the
request was not made before the non-expert discovery deadline
of November 13, 2018. (R. Doc. 40-3 at 1). Defense counsel
asked Plaintiff's counsel to reconsider the objections,
noting, among other things, that the travel distance for Ms.
Landry would be the same as to her own treating physician,
that he would recommend that Defendants reimburse mileage
expenses for both plaintiffs, that reasonable notice of the
IMEs of over 30 days was provided, and that the expert
discovery deadline had not yet expired. (R. Doc. 40-4 at 1).
January 11, 2019, Defendants filed the instant motion to
obtain an order under Rule 35 requiring both plaintiffs to
appear for a medical examination before Dr. van Deventer at
his office in Covington. (R. Doc. 40). Defendants seek an
order requiring the examination to occur prior to
Defendants' expert report deadline. (R. Doc. 40-1 at 6).
Rule of Civil Procedure 35 provides that the “court
where the action is pending may order a party whose mental or
physical condition-including blood group-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).
Such an order may be issued “only on motion for good
cause and on notice to all parties and the person to be
examined” and “must specify the time, place,
manner, conditions, and scope of the examination, as well as
the person or persons who will perform it.”
Fed.R.Civ.P. 35(a)(2). A plaintiff places his or her physical
or mental condition “in controversy” by pleading
he or she has sustained a physical injury through the
negligence of the defendant. See Schlagenhauf v.
Holder, 379 U.S. 104, 119 (1964). “The decision as
to whether or not to order an independent medical examination
under Rule 35(a) rests in the court's sound
discretion.” Glaze v Bud's Boat Rental,
Inc., No. 93-1334, 1993 WL 441890, *1 (E.D. La. Oct. 21,
1993). Furthermore, “[a]lthough Rule 35 examinations
may be ordered ‘only on motion for good cause
shown,' and use of the rule to compel such examinations
is not unfettered, Rule 35(a) generally has been construed
liberally in favor of granting discovery.” Grossie
v. Fla. Marine Transporters, Inc., No. 04-0699, 2006 WL
2547047, at *2 (W.D. La. Aug. 31, 2006).
is no dispute that there is good cause for Rule 35
examinations of both Plaintiffs with an orthopedic surgeon,
that Dr. van Deventer is qualified to conduct the
examinations, and that it would be a more economical use of
the parties' resources for both Plaintiffs to be examined
by the same physician. Plaintiffs also do not argue in their
opposition that the motion is untimely or that the timing of
the notice was unreasonable. The sole dispute is whether
Plaintiffs should be required to travel to Covington (which
falls outside of the geographic scope of this district) for
courts will only mandate that a plaintiff “appear for
examination at the place where the trial would be held-that
is, at the venue selected initially by the plaintiff. This
allows the examining physician to be available conveniently
for testimony.” Thomas v. W&T Offshore,
Inc., No. 16-14694, 2018 WL 501508, at *2 (E.D. La. Jan.
22, 2018) (quoting Baird v. Quality Foods, Inc., 47
F.R.D. 212, 213 (E.D. La. 1969)). For an exception to be made
to this general rule, courts have held that “the burden
is not on the defendant to demonstrate that a satisfactory
examination cannot be had a nearer locale to the plaintiff,
but rather on the plaintiff to show that traveling to the
examination poses undue burden or hardship.”
Thomas, 2018 WL 510508, at *2 (quoting Ornelas
v. S. Tire Mart, LLC, 292 F.R.D. 388, 400 (S.D. Tex.
considered the arguments and representations of the parties,
the Court concludes that Plaintiffs have not demonstrated
that travelling to Covington for their examinations would
pose any undue burden or hardship. Foremost, Plaintiffs
concede that Ms. Landry, who lives in Livingston, Louisiana,
would not face any undue burden or hardship travelling to
Covington. (R. Doc. 50 at 5). Defendants represent that Ms.
Landry must travel 26-40 miles (and 45 minutes) to reach her
treating physician's office in Baton Rouge; whereas Ms.
Landry must travel 49 miles (and 48 minutes) to reach of the
Dr. van Deventer's office in Covington. (R. Doc. 40-1 at
5). Plaintiffs do not dispute these distances or travel
Plaintiffs focus on the potential undue burden or hardship on
Mr. Deville. Plaintiffs assert that Mr. Deville resides in
Oscar, Louisiana, and that he must travel 25 miles (and 30
minutes) to Baton Rouge, compared with 91 miles (and 93
minutes) to Covington. (R. Doc. 50 at 3). Plaintiffs assert
that the 182 miles roundtrip to Covington, which would take
over three hours, is unduly burdensome, particularly given
that Mr. Deville would have to pass through Baton Rouge,
where his treating physicians are located, and where more
than 50 orthopedic surgeons are located. (R. Doc. 50 at 3-4).
Defendants do not dispute these travel distances and times.
Instead, Defendants assert that Plaintiffs fail to establish
that Mr. Deville will face any undue burden or hardship by
the single trip to Covington, considering he has made 25
trips to treating physicians in Baton Rouge and 25 trips to
undergo physical therapy in Zachary, for a total of
approximately 76 hours and 3, 600 miles in travel for
treatment for his alleged injuries. (R. Doc. 56 at 2-3).
the Court acknowledges that the distance of 91 miles might
cause some inconvenience to Mr. Deville, the record does not
indicate that he will face any undue burden or hardship by
travelling to Covington. On the contrary, the record
indicates that both plaintiffs are physically able to travel
considerable distances by car, and have done so on multiple
occasions to treat with their own physicians. Furthermore,
any financial hardship caused by the travel is moot in light
of Defendants' offer to reimburse travel expenses (which
the Court will require Defendants to do).
Court is also satisfied that the purpose for the general
rule-that the examining physician be located in the district
where the trial is to be held to allow the physician to be
conveniently available for testimony-is satisfied even though
Covington falls outside of the geographic scope of this
district. Because his office is within 100 miles of Baton
Rouge, Dr. Van Deventer will be subject to ...