-NMK Stuckey et al v. Dale et al, No. 2:2010cv00690 - Document 33 (S.D. Ohio 2011)
Court Description: OPINION AND ORDER granting in part 29 MOTION for Discovery Independent Medical Examination. Defendants Motion seeks a sanction in the form of reimbursement of the cancellation fee assessed in connection with Mr. Seymours failure to attend an earlier scheduled appointment, the motion is DENIED. Signed by Magistrate Judge Norah McCann King on 5/17/11. (rew)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION RICHARD T. STUCKEY, et al., Plaintiffs, vs. Civil Action 2:10-CV-690 Judge Watson Magistrate Judge King JAMES O. DALE, et al., Defendants. DAVID C. SEYMOUR, et al., Plaintiffs, Civil Action 2:10-CV-692 Judge Watson Magistrate Judge King vs. CRST VAN EXPEDITED, INC., et al., Defendants. ACTIVE USA, INC., Plaintiff, Civil Action 2:10-CV-702 Judge Watson Magistrate Judge King vs. JAMES O. DALE, et al., Defendants. OPINION AND ORDER These consolidated cases arise out of a single motor vehicle accident. It is alleged that defendant Dale, while under the direct control or supervision of the CRST defendants, operated a tractortrailer in a negligent fashion, striking a vehicle driven by plaintiff Seymour in which plaintiff Stuckey was a passenger. Plaintiff Active USA, the employer of plaintiff Seymour, seeks recovery of amounts paid by it pursuant to Ohio s Workers Compensation laws; the spouses of plaintiffs Seymour and Stuckey assert loss of consortium claims. This matter is now before the Court on defendants motion for an independent medical examination of plaintiff David C. Seymour, Doc. No. 29 (2:10-CV-690); Doc. No. 30 (2:10-CV-692); Doc. No. 25 (2:10-CV702)[ Defendants Motion ]. On February 17, 2011, counsel for defendants mailed to counsel for all plaintiffs in these consolidated actions a notice of the medical examinations of plaintiffs Richard Stuckey and David Seymour. Exhibit A, attached to Defendants Motion. Mr. Seymour s examination was to be conducted by Martin J. Gottesman, M.D., on May 2, 2011. Id. Mr. Seymour failed to appear for his examination, Exhibit B, attached to Defendants Motion, and Dr. Gottesman charged a $325.00 cancellation fee, which defense counsel paid. Id. See also Exhibit attached to Defendants Reply Brief in Support of Motion for Independent Medical Examination, Doc. No. 34 [ Reply ]. Defendants ask that Mr. Seymour be ordered to appear on May 31, 2011, at 11:00 a.m. for a physical examination by Joseph Schlonsky, M.D., in Columbus, Ohio. According to defendants, Dr. Schlonsky will obtain a history from Plaintiff David Seymour and conduct a physical examination concerning any and all injuries claimed to have been caused by the subject automobile accident. Defendants Motion, at 3. Defendants also ask that Mr. Seymour and/or his counsel reimburse the cancellation fee paid to Dr. Gottesman. Id. In response, counsel for Mr. Seymour represents that his office files contain no notice of the May 2, 2011 examination by Dr. Gottesman. Affidavit of C. Jay Schwart, ΒΆ8, attached to Plaintiffs , David C.Seymour and Trudy Seymour, Response to Motion to Compel 2 Attendance at Defense Medical Examination, Doc. No. 33 (2:10-CV-692) [ Memo. Contra ]. His client did not appear for the examination because he was unaware that an examination was to take place. Contra, at 2. Memo. The Seymour plaintiffs argue that a Court order compelling the attendance of Mr. Seymour at the re-scheduled examination is unnecessary and contend that neither he nor his counsel should be required to bear the full cost of Dr. Gottesman s cancellation fee. Memo. Contra, at 4. A court may order the physical examination, by a suitably licensed or certified examiner, of a party whose physical condition is in controversy. Fed. R. Civ. P. 35(a)(1). Such an order (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) 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). Sanctions, including an order for payment of reasonable expenses caused by a party s failure to appear for examination, may be assessed if a party . . . fails to obey an order to provide or permit discovery, including an order under Rule . . . 35 . . . . Fed. R. Civ. P. 37(b)(2)(A), (C). Thus, a failure to appear for a physical examination may be the subject of sanctions under Rule 37 only if the examination is the subject of an order of the Court. Because the May 2, 2011 examination by Dr. Gottesman was not the subject of an order of this Court, this Court is without authority under Rule 37 to assess sanctions in connection with Mr. Seymour s failure to attend that examination. However, the Court will issue an order requiring Mr. Seymour s participation in Dr. Schlonsky s examination. 3 Because Mr. Seymour s physical condition is in controversy in this action, defendants have established good cause for the requested examination. Furthermore, defendants have provided notice of this examination to all parties, including Mr. Seymour, through counsel. Thus, defendants are entitled to an order requiring the physical examination of Mr. Seymour. Moreover, defendants are entitled to the requested order notwithstanding the representation that Mr. Seymour will voluntarily attend the scheduled examination by Dr. Schlonsky. Not only does Rule 35(a)(2) authorize such an order but, as noted supra, defendants would be without recourse, in the absence of a court order, should Mr. Seymour fail to participate in the examination. Accordingly, Defendants Motion,, Doc. No. 29 (2:10-CV-690); Doc. No. 30 (2:10-CV-692); Doc. No. 25 (2:10-CV-702), is GRANTED in part. Plaintiff David C. Seymour is ORDERED to appear on Tuesday, May 31, 2011, at 11:00 a.m., for a medical examination concerning any and all injuries claimed to have been caused by the automobile accident at issue in this case, to be conducted by Joseph Schlonsky, M.D., 5969 East Broad Street, Suite 402, Columbus, Ohio 43213, and any necessary members of Dr. Schlonsky s staff. To the extent that Defendants Motion seeks a sanction in the form of reimbursement of the cancellation fee assessed in connection with Mr. Seymour s failure to attend an earlier scheduled appointment, the motion is DENIED. s/Norah McCann King Norah McCann King United States Magistrate Judge May 17, 2011 4
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