Rowland v. Paris Las Vegas et al, No. 3:2013cv02630 - Document 34 (S.D. Cal. 2015)
Court Description: ORDER Granting 28 Defendants Motion for Rule 35 Examination. Signed by Magistrate Judge David H. Bartick on 8/6/2015. (srm)
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Rowland v. Paris Las Vegas et al Doc. 34 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH ROWLAND, 16 ORDER GRANTING DEFENDANTS’ MOTION FOR RULE 35 EXAMINATION v. 13 15 13cv2630-GPC (DHB) Plaintiff, 12 14 Civil No. PARIS LAS VEGAS, CAESARS ENTERTAINMENT OPERATING COMPANY, INC., and DOES 1 to 25, inclusive, 17 [ECF No. 28] Defendants. 18 19 On July 14, 2015, Plaintiff Elizabeth Rowland and Defendants Paris Las Vegas 20 Operating Company, LLC and Caesars Entertainment Corporation filed a joint motion 21 regarding Defendants’ request for an order pursuant to Federal Rule of Civil Procedure 35 22 compelling Plaintiff to submit to an independent medical examination (“IME”) performed 23 by Defendants’ designated medical expert, Dr. Raymond Sachs. (ECF No. 28.) For the 24 reasons set forth below, Defendants’ request is GRANTED. I. BACKGROUND 25 26 A. Factual History 27 Plaintiff filed a First Amended Complaint (“FAC”) in this action on March 26, 2014. 28 (ECF No. 8.) Plaintiff alleges in the FAC that she slipped and fell while walking barefoot 1 13cv2630-GPC-DHB Dockets.Justia.com 1 on the polished tile floor of Defendants’ hotel room, resulting in a broken hip. (Id. at ¶ 15.) 2 Moreover, Plaintiff alleges the fall injured “her health, strength, and activity, all of which 3 have caused, and continue to cause, Plaintiff great mental, physical, and nervous pain and 4 suffering.” (Id. at ¶ 20.) 5 On December 5, 2014, the Court held a Case Management Conference pursuant to 6 Federal Rule of Civil Procedure 16 following which the Court issued a Scheduling Order. 7 (ECF No. 22.) The Scheduling Order established May 15, 2015 as the deadline for the 8 parties’ designated experts to provide expert witness reports, and June 19, 2015 for 9 supplemental expert witness reports. (Id. at ¶ 4.) Additionally, the Scheduling Order set 10 July 17, 2015 as the discovery cutoff date. (Id. at ¶ 5.) 11 Defendants deposed Plaintiff on March 19, 2015. At her deposition, Plaintiff 12 provided testimony that she was last seen by a physical therapist in November 2013, and, 13 at that date, was no longer seeing a physician for any physical problems related to her hip. 14 (Rowland Depo. at 240:16-25; 245:17-19.) Additionally, Plaintiff stated multiple times 15 that the only activities she can no longer engage in as a result of the fall are line dancing 16 and hula classes. (Id. at 47:3-12; 246-47:24-3.) Plaintiff indicated that she had contacted 17 Dr. Nina B. Lott, a psychologist, concerning depression issues. (Id. 49:6-20.) However, 18 as of the date of the deposition, Plaintiff had not yet been treated by Dr. Lott. (Id. at 48: 19 12-14.) 20 On April 3, 2015, Defendants served their expert designation, which identified a 21 single retained expert – Dr. Raymond Sachs. (ECF No. 28-4.) On March 6, 2015, Plaintiff 22 served her expert designation which listed five non-retained treating experts, including 23 Plaintiff’s treating psychologist, Dr. Lott. (ECF No. 28-5.) On May 15, 2015, Defendants 24 served their expert disclosure, which included a copy of the report prepared by Dr. Sachs. 25 (ECF No. 28-6.) Plaintiff also served her expert disclosure, however, it did not contain any 26 written reports. (ECF No. 28-7.) Subsequently, on June 17, 2015, Dr. Lott produced 27 medical records indicating that Plaintiff required weekly psychological treatment for a 28 possible anxiety disorder and depression resulting from, among other things, her continued 2 13cv2630-GPC-DHB 1 ongoing pain and limitations in her lower extremities. (ECF No. 28-8.) Dr. Lott’s medical 2 records indicate that Plaintiff “[h]as recently gotten back to gardening in a ‘secure’ way so 3 that she can stand and bend without falling. Reports that her balance is somewhat 4 compromised while standing on uneven land.” (Id. at 6.) Dr. Lott’s notes also show that 5 when Plaintiff was asked the question “what would have to happen so that you do not hurt 6 anymore?” she answered, “I could walk on uneven surfaces and any embankment. I would 7 be able to go up steps without holding on. I could return to dancing.” (Id.) 8 Defendants assert that the information contained in Dr. Lott’s medical records 9 contradicts Plaintiff’s deposition testimony and her other medical records. (ECF No. 28 at 10 7.) Therefore, on June 26, 2015, Defendants’ counsel requested Plaintiff’s counsel to 11 stipulate to an IME of Plaintiff performed by Dr. Sachs. At that time, Plaintiff was set to 12 depose Dr. Sachs on July 10, 2015. As such, Defendants’ counsel proposed that the IME 13 take place on the same day immediately prior to Dr. Sachs’ deposition. (Id.) 14 On June 30, 2015, Plaintiff’s counsel advised Defendants that Plaintiff would not 15 submit to an IME absent a court order, and would no longer be taking the deposition of Dr. 16 Sachs. (Id. at 8.) 17 On July 6, 2015, counsel for both parties met in person to confer on the issue. Again, 18 Plaintiff’s counsel indicated that Plaintiff would not stipulate to an IME. (Id.) As a result, 19 on July 14, 2015, the parties filed the instant joint motion regarding Defendants’ request 20 for an order compelling Plaintiff to submit to an IME. 21 B. Arguments 22 1. 23 Defendants argue good cause exists for the issuance of an order compelling Plaintiff 24 to undergo an IME performed by Dr. Sachs because: (1) Plaintiff has placed her medical 25 condition “in controversy” by claiming physical and psychological injuries attributed to 26 the fall, including ongoing medical problems, pain limitations, and psychological treatment 27 for anxiety and depression; (2) the IME seeks information directly relevant to Plaintiff’s 28 alleged claims of prior and ongoing physical injuries and related claims for damages; (3) Defendants 3 13cv2630-GPC-DHB 1 Defendants should not be required to simply rely on Plaintiff’s expert witnesses regarding 2 Plaintiff’s injuries and the damages allegedly suffered; and (4) the IME is necessary 3 because Plaintiff’s deposition testimony regarding her physical condition contradicts the 4 information in Dr. Lott’s medical records. (ECF No. 28 at 9-11.) 5 Defendants further contend their request for an IME is timely because: (1) Rule 35 6 of the Federal Rules of Civil Procedure does not specify a deadline for conducting an IME; 7 (2) a request for an IME is not governed by the deadline to exchange expert reports under 8 Rule 26; and (3) Defendants promptly requested the IME upon being provided new 9 information from Plaintiff’s treating psychologist Dr. Lott which contradicted Plaintiff’s 10 deposition testimony regarding the nature and severity of her alleged injuries and ongoing 11 symptoms. (Id. at 11-12.) 12 2. 13 Plaintiff contends Defendants’ requested IME is untimely because: (1) Plaintiff 14 identified Dr. Lott in her initial designation of expert witnesses; (2) Plaintiff testified about 15 her ongoing treatment with Dr. Lott during her deposition; and (3) Plaintiff again identified 16 Dr. Lott in her expert disclosures. (ECF No. 28 at 13-14.) Plaintiff further contends the 17 IME is illogical because Dr. Lott, a psychological counselor, is treating Plaintiff for mental 18 suffering and emotional distress, not the underlying hip and leg weakness. As such, 19 Plaintiff argues Dr. Sachs, an orthopedic surgeon, cannot opine as to the nature and extent 20 of Plaintiff’s mental suffering and emotional distress. (Id. at 13.) Further, Plaintiff notes 21 that Dr. Sachs was aware of Plaintiff’s limitations and indicated in his report that he 22 expected a “nearly full” recovery. Therefore, Plaintiff agues there is no basis for Dr. Sachs 23 to conduct an IME regarding medical opinions he has already rendered. (Id. at 14.) Lastly, 24 Plaintiff claims she would suffer undue prejudice from a court-ordered IME after the 25 discovery cutoff because she would now be unable to depose Dr. Sachs. (Id. at 15.) 26 /// 27 /// 28 /// Plaintiff 4 13cv2630-GPC-DHB 1 II. FEDERAL RULE OF CIVIL PROCEDURE 35 2 Federal Rule of Civil Procedure 35 authorizes a court to “order a party whose mental 3 or physical condition . . . is in controversy to submit to a physical or mental examination 4 by a suitably licensed or certified examiner.” Fed R. Civ. P. 35(a)(1). “The order: (A) may 5 be made only on motion and for good cause and on notice to all parties and the person to 6 be examined; and (B) must specify the time, place, manner, conditions, and scope of the 7 examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 8 35(a)(2)(A)-(B). Rule 35 requires “an affirmative showing by the movant that each 9 condition as to which the examination is sought is really and genuinely in controversy and 10 that good cause exists for ordering each particular examination.” Schlagenhauf v. Holder, 11 379 U.S. 104, 118 (1964). 12 “Factors that courts have considered in assessing whether ‘good cause’ exists 13 include, but are not limited to, ‘the possibility of obtaining desired information by other 14 means, whether plaintiff plans to prove [his] claim through testimony of expert witnesses, 15 whether the desired materials are relevant, and whether plaintiff is claiming ongoing 16 [injury].’” Juarez v. Autozone Stores, Inc., No. 08cv417-L (BLM), 2011 U.S. Dist. LEXIS 17 43087, at *3 (S.D. Cal. April 21, 2011) (quoting Impey v. Office Depot, Inc., No. C-09- 18 01973 EDL, 2010 U.S. Dist. LEXIS 75527, at *21 (N.D. Cal. July 27, 2010)). Rule 35 “is 19 to be construed liberally in favor of granting discovery.” Turner v. Imperial Stores, 161 20 F.R.D. 89, 96 (S.D. Cal. 1995). 21 III. ANALYSIS 22 Rule 35 is silent as to the deadline for conducting an IME, and there is no uniform 23 consensus among federal district courts as to whether Rule 35 should be read in conjunction 24 with, or independently of, the expert witness disclosure requirements of Federal Rule of 25 Civil Procedure 26. On one hand, some courts have concluded that the timing requirements 26 set forth in Rules 26 and 35 should be read independently of each other. See, e.g., Bush v. 27 Pioneer Human Servs., No. C09-0518 RSM, 2010 WL 324432, at *5 (W.D. Wash. Jan. 21, 28 2010) (“[T]he deadline set in the scheduling order for expert reports under Rule 26(a)(2) 5 13cv2630-GPC-DHB 1 does not apply to the issuance of a Rule 35 report.”); Waggoner v. Ohio Cent. R.R., Inc., 2 242 F.R.D. 413, 414 (S.D. Ohio 2007) (“Rule 35 examinations, and the issuance of reports 3 following those examinations, proceed independently of Rule 26(a)(2).). 4 On the other hand, several courts have concluded that Rule 35 is subject to Rule 5 26(a)(2)’s timing requirements. See, e.g., Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 6 412, 419 (S.D. Tex. 2012) (“[A]fter considering the language, purpose, and relevant use of 7 Rules 26 and 35, the Court is of the opinion that Rules 26 and 35 should be read in 8 conjunction with each other when determining the proper timing for a Rule 35 examination 9 and report.”); Minnard v. Rotech Healthcare Inc., No. S-06-1460 GEB GGH, 2008 U.S. 10 Dist. LEXIS 6149, at *6 (E.D. Cal. Jan. 15, 2008) (“The purpose of the retained expert is 11 to advocate within reasonable grounds on behalf of the person for whom retained. The 12 expert will not simply be parroting the facts of an examination. . . . The Rule 35 exam and 13 the retained expert’s opinions are inextricably intertwined.”); Shumaker v. West, 196 14 F.R.D. 454, 456 (S.D. W. Va. 2000) (“The deadlines relating to expert disclosures and the 15 requisites provided in Rule 26 regarding the expert report are there for good reason. Both 16 parties are entitled to knowledge relating to the other side’s experts. Without access to the 17 identity of an expert witness and the expert’s report, an opposing party cannot properly 18 prepare its case or rebut the other party’s expert witness.”). 19 Although the law in this area is not well settled, the Honorable William V. Gallo of 20 this district has previously opined that Rule 35 reports are subject to Rule 26’s timing 21 requirements. Indeed, in Lopez v. City of Imperial, No. 13-0597-BEN(WVG), 2014 U.S. 22 Dist. LEXIS 7291, at *5 (S.D. Cal. Jan. 21, 2014), Judge Gallo determined: 23 If the IME examiner will offer opinions and conclusions regarding the objective facts derived from an examination, the IME and the report produced by the IME examiner is expert discovery, not fact discovery. Therefore, the timing of a motion for an IME is dictated by the terms of the scheduling order regarding expert witness discovery, as set forth in the case. 24 25 26 27 28 Id. at *7-8. /// 6 13cv2630-GPC-DHB 1 Here, the proposed IME by Dr. Sachs clearly falls within the realm of expert 2 discovery. Defendants explicitly state, “Dr. Sachs has been retained in this matter to offer 3 expertise regarding the nature and extent of [Plaintiff’s] alleged injuries, as well as the 4 reasonableness and necessity of [Plaintiff’s] claimed medical treatment.” (ECF No. 28 at 5 2:13-15.) Therefore, Dr. Sachs’ expert report following the IME is subject to the deadlines 6 imposed in the Court’s Scheduling Order (i.e., May 15, 2015). Because Defendants failed 7 to move for an order under Rule 35 until July 14, 2015, the motion is untimely. 8 However, the Court finds good cause to excuse Defendants’ failure to timely request 9 the IME because of the changed circumstances presented by Dr. Lott’s records, which were 10 not produced to Defendants until June 17, 2015. Upon receipt of the records, Defendants 11 learned for the first time that Plaintiff has indicated she has trouble balancing on uneven 12 surfaces and cannot walk up steps without using the handrail. 13 inconsistent with Plaintiff’s deposition testimony, where she stated that her only remaining 14 physical limitations were not being able to line dance and participate in hula classes. It is 15 also inconsistent with her medical records that show she reported no pain and was able to 16 walk all day with no problems and could go up and down stairs without difficulty. (ECF 17 No. 28-6 at 6-7.) Further, the Court finds Defendants acted diligently in requesting the 18 IME as soon as they were provided with Dr. Lott’s records. This information is 19 Regarding the merits of Defendants’ motion for an order compelling Plaintiff to 20 undergo a Rule 35 IME, upon consideration of the factors outlined in Juarez, the Court 21 finds Defendants have established good cause. First, Plaintiff has clearly placed her 22 physical condition in controversy by claiming Defendants’ negligence caused her to fall at 23 the Paris Las Vegas Hotel resulting in a broken hip. Thus, this factor weighs in favor of 24 Defendants. 25 Second, “there is no possibility that Defendants can obtain the information, opinions 26 and conclusions of an expert witness pursuant to Rule 35 in any other way, but to have 27 Plaintiff submit to the IME.” Lopez, 2014 U.S. Dist. LEXIS 7291, at *9. Defendants are 28 in possession of Plaintiff’s medical records. However, many of the records are several 7 13cv2630-GPC-DHB 1 years old and contradict information contained in Dr. Lott’s more recently produced 2 records. Additionally, the Court does not find compelling Plaintiff’s argument that there 3 is no justification for Defendants’ delay because “Plaintiff testified about her ongoing 4 treatment with counselor Nina Lott, Ph.D., during deposition on March 19, 2015.” 5 Plaintiff’s first appointment with Dr. Lott was not until April 29, 2015, therefore, at the 6 time of the deposition, there was no “ongoing” treatment to discuss. Plaintiff did state that 7 she can no longer engage in recreational line dancing and hula classes. However, that is 8 significantly different than her claimed inability to balance on uneven ground or walk up 9 steps without difficulty, which was noted in Dr. Lott’s report. Thus, this factor weighs in 10 favor of Defendants. 11 Third, although Plaintiff did not designate a single retained expert witness, she did 12 identify five treating experts. Plaintiff admits she intends to offer the testimony of her 13 designated treating experts. Thus, this factor weighs in favor of Defendants. 14 Fourth, the scope of Dr. Sachs’ intended IME is relevant to Plaintiff’s newly raised 15 issues of ongoing functional limitations, including her claims that her balance is 16 compromised and that she cannot walk up steps without holding on to the handrail. This 17 new information may be significant to the calculation of future medical damages. Thus, 18 this factor weighs in favor of Defendants. 19 Finally, as noted above, Plaintiff claims ongoing physical injuries. Notably, Dr. 20 Lott’s records show that Plaintiff’s ongoing physical injuries may be substantially more 21 severe than what Plaintiff previously indicated to Defendants. Thus, this factor weighs in 22 favor of Defendants. 23 Additionally, the Court finds that requiring Plaintiff to submit to the IME would 24 impose only a minimal burden or privacy intrusion on Plaintiff. The proposed scope of the 25 IME indicates that it will be a non-intrusive examination lasting no more than one hour. 26 The Court finds these impositions are outweighed by Defendants’ need for the IME. 27 The Court does not find compelling Plaintiff’s argument that Defendants failed to 28 provide the necessary details and are required to state the time, place, manner, conditions, 8 13cv2630-GPC-DHB 1 and scope of the IME. Defendants, in the joint motion, state the IME will be a non-intrusive 2 examination which would last no more than one hour. (ECF No. 28 at 3:22-23) Also, 3 Defendants assert the examination would be limited to an examination of the physical 4 condition of Plaintiff’s hip and lower extremities, including her corresponding muscle 5 strength and balance. (Id. at 4:7-10) Moreover, Defendants adequately provided the 6 necessary details in their proposed order. 7 Additionally, the Court does not find compelling Plaintiff’s argument that Dr. Sachs, 8 as an orthopedic surgeon, has no basis to opine regarding the nature and extent of Plaintiff’s 9 mental suffering and emotional distress. Dr. Sachs does not intend to give his opinion as 10 to the nature and extent of Plaintiff’s mental suffering and emotional distress. Although 11 Defendants’ need for the IME arose after receiving a copy Dr. Lott’s report, Defendants 12 only seek to examine the physical condition of Plaintiff, and not her mental or emotional 13 suffering. Dr. Sachs has been a board certified Orthopedic Surgeon since 1983, and states 14 he has examined and treated hundreds of pubic rami fractures of the pelvis. (ECF No. 28- 15 6 at 1.) As such, Dr. Sachs is an appropriate person to conduct the medical examination to 16 formulate an opinion as to the physical condition of Plaintiff’s hip and lower extremities 17 and her alleged ongoing physical limitations. 18 In conclusion, upon analysis of the applicable factors and in recognition that Rule 19 35 “is to be construed liberally in favor of granting discovery,” Turner, 161 F.R.D. at 96, 20 the Court finds Defendants have demonstrated good cause for an order requiring Plaintiff 21 to submit to a Rule 35 IME by Dr. Sachs. 22 However, the fact that the IME will be performed after the discovery cutoff date 23 raises a significant concern that Plaintiff will be prejudiced because she can no longer 24 depose Dr. Sachs. It is unrealistic to expect Plaintiff to be able to adequately prepare to 25 cross-examine Dr. Sachs at trial regarding expert opinions that were not disclosed in his 26 May 15, 2015 expert witness report. Therefore, the Court will provide Plaintiff leave to 27 take a deposition of Dr. Sachs following the IME. 28 /// 9 13cv2630-GPC-DHB 1 IV. CONCLUSION 2 For the foregoing reasons, IT IS HEREBY ORDERED: 3 1. 4 Defendants’ motion for an Order permitting Dr. Raymond Sachs to perform an Independent Medical Examination of Plaintiff is GRANTED. 5 2. Plaintiff shall submit to a physical examination by Dr. Raymond Sachs. The 6 examination shall occur no later than August 19, 2015 and shall be scheduled for a 7 mutually convenient time for Plaintiff and Dr. Sachs. The examination shall take place at 8 Dr. Sachs office located at 8008 Frost Street, Suite 403, San Diego, California, 92123. The 9 examination shall last no longer than one (1) hour and may include a physical examination 10 of Plaintiff’s hips and lower extremities, as well as any non-invasive tests which are 11 ordinarily deemed necessary to examine gait, muscle strength within the hips and lower 12 extremities, hip and leg flexion, range of motion, alignment, and balance. At the time of 13 the examination Plaintiff shall answer questions of the examiner regarding her current and 14 prior physical condition, prior injuries, and medical history related to her hips and lower 15 extremities. 16 Defendants shall bear the cost of the examination. 17 3. Counsel will not be permitted to be present during the examination. Defendants shall provide Plaintiff with Dr. Sachs’ supplemental expert report, 18 which shall include his expert opinions formed following the examination, no later than 19 August 24, 2015. 20 4. The Court will reopen discovery for the limited purpose of allowing Plaintiff 21 to depose Dr. Sachs following receipt of his supplemental report. If Plaintiff wishes to 22 depose Dr. Sachs, the deposition shall occur no later than September 4, 2015. 23 24 5. In light of the fact the Court has reopened discovery for a limited purpose, the Court finds good cause to amend the Scheduling Order as follows: 25 a. 26 limine, shall be filed on or before September 18, 2015. 27 /// 28 All motions, other than motions to amend or join parties, or motions in /// 10 13cv2630-GPC-DHB 1 b. 2 2014 Scheduling Order remain in effect. (See ECF No. 22.) 3 4 All remaining deadlines and requirements outlined in the December 5, IT IS SO ORDERED. DATED: August 6, 2015 5 _________________________ DAVID H. BARTICK United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 13cv2630-GPC-DHB
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