United States District Court, E.D. Louisiana
IESHA HASAN, INDIVIDUALLY, AND ON BEHALF OF HER MINOR SON, J.A.
MCCORMACK BARON MANAGEMENT, INC.
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
a personal injury lawsuit originally instituted in state
court by plaintiff, Iesha Hasan, in her individual capacity
and on behalf of her minor son, J.A., against defendant,
McCormack Baron Management, Inc. It was subsequently removed
to this court on grounds of diversity of citizenship
jurisdiction. Plaintiff alleges that while she was a tenant
at Harmony Oak Apartments, a residential apartment building
allegedly "owned, supervised and/or controlled" by
defendant, the plumbing system located on the roof was
defective, which led to water leaks "onto the roof of
the rooms of [plaintiff's] apartment . . . as well [as]
leaky and dysfunctional air conditioning units and
appliances." Record Doc. No. 1-2 at ¶¶ III -
IV. Plaintiff avers that "[t]he damp conditions caused
mold to appear in [her] apartment . . . and damage to [her]
personal property." Id. at ¶ IV. Plaintiff
seeks compensatory damages for physical and mental injuries
allegedly sustained by herself and her son. Record Doc. No.
1-2 at p. 9, ¶ XVIII.
Motion to Compel Plaintiffs' Rule 35 Independent Medical
Examinations, Record Doc. No. 34, is currently pending before
me. Plaintiff filed a timely opposition memorandum. Record
Doc. No. 35. Defendant was permitted to file a reply. Record
Doc. Nos. 40, 43, 44. Having considered the written
submissions of counsel, the record and the applicable law, IT
IS ORDERED that the motion is GRANTED for the following
motion is governed by Fed.R.Civ.P. 35(a), which provides in
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. . .
. The order may be made only on motion for good
cause . . . and must specify the time, place, manner,
conditions and scope of the examination, as well as the
person or persons who will perform it.
(emphasis added.) An order for a physical or mental
examination of a party is not granted as of right. When, as
here, a motion for a Rule 35 examination is contested, the
matter is firmly left to the discretion of the trial court.
Spencer v. Hercules Offshore, Inc., 2014 WL 1681736,
at *2 (E.D. La. Apr. 28, 2014) (Vance, J.) (citing Hardy
v. Riser, 309 F.Supp. 1234, 1241 (N.D. Miss. 1970)
(citing Teche Lines v. Boyette, 111 F.2d 579, 581
(5th Cir. 1940))).
essential requirements of Rule 35(a) are satisfied in this
instance. The record establishes that this is a personal
injury case in which the nature, scope and circumstances of
plaintiffs' physical and mental conditions allegedly
resulting from exposure to mold are disputed and in
controversy. Record Doc. Nos. 1-2 at p. 5, ¶¶ V-VI;
1-2 at p. 9; 34-1. While plaintiff argues that a Rule 35
examination is not warranted because neither she nor her son
are "currently receiving medical treatment for the
subject physical condition[s]," Record Doc. No. 35 at p.
2, the United States Supreme Court has held that a plaintiff
"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 (U.S.
1964). Plaintiff expressly alleges mental and physical
injuries in her complaint arising from exposure to mold.
These alleged injuries and the conditions that constitute
them are clearly in controversy.
proposed examiner and the place, manner, conditions and scope
of the proposed examinations are all properly specified. The
proposed examiner is Dr. Harold James Wedner, a physician who
specializes in allergy and immunology. Record Doc. No. 34-5
at p. 2. Allergy and immunological problems are precisely the
kinds of conditions frequently linked to mold exposure. The
qualifications of the proposed examiner are established in
the attachments to the motion papers, and he is suitably
licensed or certified. Defendant states that the proposed
examinations will last for about three hours, a reasonable
amount of time, and will take place on June 24, 2019 at 9:00
a.m. at 3645 Houma Boulevard, Metairie, LA 70006.
Plaintiff's argument in her opposition that the scope of
the requested examination is burdensome and overly broad,
Record Doc. No. 35 at pp. 3-4, is without merit. The scope of
examination is appropriately limited to "[taking] a
standard history and background (present illness, past
medical history, family history, social history, review of
symptoms . . . a routine physical examination (skin, head,
ears, eyes, nose, throat, bones, joints, neck, chest, lungs,
abdomen and extremities . . . [and a] routine pulmonary
spirometrywill be performed with a hand held
spirometer." Record Doc. No. 34-4 at p. 1. Placing
further limits on this examination "'would subvert
the truth finding [sic] function inherent in Rule 35
examinations, '" Ornelas v. S. Tire Mart,
LLC, 292 F.R.D. 388, 398 (S.D. Tex. 2013) (citing
Abdulwali v. Washington Metro Area Transit
Authority, 193 F.R.D. 10, 15 (D.D.C. Apr. 18, 2000);
Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D.
196, 202, (N.D. Tex. Aug. 4, 1995)). Plaintiff has not shown
that Dr. Wedner's proposed examination would be
dangerous, harmful or unduly invasive. See Newman v. San
Joaquin Delta Community College Dist., 272 F.R.D. 505,
512 (E.D. Cal. Feb. 15, 2011) (acknowledging that "the
court is not a medical professional," and thus refusing
to limit the proposed testing "absent a showing of
danger or actual harm").
opposition, plaintiff argues that she "has executed
several medical authorization forms [which] defendant has
used to obtain all of the pertinent medical records."
Record Doc. No. 35 at p. 3. This argument is unpersuasive. A
review of cold medical records is no substitute for an
in-person examination by a doctor, as sought in the instant
these circumstances, good cause to support the Rule 35
examination requested by defendant is established.
Accordingly, IT IS ORDERED that plaintiffs,
Iesha Hasan and her minor son, J.A., must appear on
June 24, 2019 at 9:00 a.m. for a medical
examination by Dr. Harold James Wedner, 3645 Houma Boulevard,
Metairie, LA 70006, the scope of which is limited as
described above. The date, time and place set forth in this
order may be varied only upon written stipulation of the
parties or on motion and order of the court for good cause
 Spirometry is "the measurement of
the breathing capacity of the lungs, such as in pulmonary
function tests." Dorland's Illustrated Medical