Zumstein v. Boston Scientific Corporation, No. 2:2013cv02344 - Document 30 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting 23 Emergency Motion by Boston Scientific Corporation to Compel Glenda S. Zumstein to Appear for Physical Examination; it is ORDERED that Plaintiff make herself available for an examination by Defendant's expert witness, Dr. Lonny Green, on a date and time to be arranged by counsel for the parties and at a location agreed upon by the parties. The examination shall be limited to an interview, physical examination, pelvic and vaginal examination, as more fully set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 12/17/2014. (cc: counsel of record) (ts)
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Zumstein v. Boston Scientific Corporation Doc. 30 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA CH ARLESTON D IVISION GLEN D A S. ZU MSTEIN , Plain tiff, v. Cas e N o .: 2 :13 -cv-0 2 3 4 4 BOSTON SCIEN TIFIC CORPORATION , D e fe n d an t. MEMORAN D U M OPIN ION AN D ORD ER Pending before the court is Boston Scientific’s Em ergency Motion to Com pel Glenda S. Zum stein to Appear for Physical Exam ination. (ECF No. 23). Plaintiff responded in opposition to the m otion. (ECF No. 27). On Monday, December 15, 20 14, the court held a telephonic hearing, during which the parties appeared by counsel. After considering the argum ents of counsel, the court GRAN TS the m otion to com pel and ORD ERS Plaintiff to m ake herself available for an exam ination by Defendant’s expert witness, Dr. Lonny Green, on a date and tim e to be arranged by counsel for the parties and at a location agreed upon by the parties. The exam ination shall be lim ited to an interview, physical exam ination, pelvic and vaginal exam ination. Federal Rule of Civil Procedure 35 authorizes the court to order a party “whose m ental or physical condition ... is in controversy to subm it to a physical or m ental exam ination by a suitably licensed or certified exam iner.” The order m ay only issue on good cause and adequate notice and “m ust specify the tim e, place, m anner, condition, 1 Dockets.Justia.com and scope of the exam ination, as well as the person or persons who will perform it.” Fed.R.Civ.P. 35(a)(2). The law is well-settled that the “in controversy” and “good cause” requirem ents of the Rule are not m ere form alities; rather, they m ust be m et with “an affirm ative showing by the m ovant that each condition as to which the exam ination is sought is really and genuinely in controversy and that good cause exists for ordering each particular exam ination.” Schlagenhauf v. Holder, 379 U.S. 10 4, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). Nonetheless, “there are situations where the pleadings alone are sufficient to m eet these requirem ents.” Id. at 119. One such situation is a tort action in which a plaintiff asserts m ental or physical injury, placing “that m ental or physical injury clearly in controversy and [providing] the defendant with good cause for an exam ination to determ ine the existence and extent of such asserted injury.” Id. In the present case, Plaintiff claim s a num ber of physical injuries related to her im plantation with pelvic m esh designed, developed, m anufactured, and m arketed by Boston Scientific. Accordingly, she has placed her urogynecologic condition squarely at issue, supplying good cause for Defendant to request an independent m edical exam ination by Dr. Green, a specialist in fem ale urology. Plaintiff has also been exam ined by her own expert witness specifically to provide opinions about the nature, extent, and cause of her alleged injuries, supplying an additional ground for Defendant to obtain the opinion of its expert based upon his personal exam ination of Plaintiff. See U.S. ex rel. Johnson v. Universal Health Services, Inc., No. 1:0 7-cv-0 0 54, 20 11 WL 2784616, at *1 (W.D.Va. J uly 13, 20 11); Sim on v. Bellsouth Advertising and Pub. Corp., No. 3:0 9– CV– 177– RJ C– DCK, 20 10 WL 1418322, at *4 (W.D.N.C. Apr. 1, 20 10 ) (The need to counter plaintiff’s expert constitutes good cause for an independent m edical exam ination); see also Tom lin v. Holecek, 150 F.R.D. 628, 632 (D.Minn. 1993) (One 2 purpose in allowing an exam ination under Rule 35 is to provide a “level playing field” in the parties’ efforts to evaluate the plaintiff’s condition). Without the opportunity to conduct an independent m edical exam ination, Defendant would be forced to offer a defense “lim ited to the m ere cross-exam ining of evaluations offered by Plaintiff's experts.” W om ack v. Stevens Transport, Inc., 20 5 F.R.D. 445, 447 (E.D.Pa. 20 0 1). Clearly, the drafters of Rule 35 sought to rem edy such an inequity. Therefore, the undersigned finds that Defendant has established the “in controversy” requirem ent of Rule 35 and “good cause” for ordering Plaintiff to subm it to an independent m edical exam ination. Although Defendant satisfies the basic requirem ents of Rule 35, Plaintiff argues that Defendant’s m otion should be denied because Defendant’s request for the exam ination was untim ely. The tim eline is as follows. On October 3, 20 14, Defendant asked Plaintiff’s counsel if any of the Wave 1 and Wave 2 plaintiffs 1 were being exam ined by their own expert witnesses. Plaintiff’s case was included in the Wave 1 group. On October 22, 20 14, Plaintiffs’ counsel responded that all of his law firm ’s Wave 1 and Wave 2 plaintiffs were being exam ined. However, when provided with this inform ation, rather than im m ediately requesting an opportunity to schedule Plaintiff’s exam ination, Defendant did nothing. It was not until Novem ber 21, 20 14, after both Plaintiff’s expert witness and Dr. Green had subm itted expert reports, that Defendant first contacted Plaintiff’s counsel with potential dates for Plaintiff’s independent m edical exam ination. The proposed date for the examination, either December 10 or 1Wave 1 and Wave 2 refer to two groups of 10 0 cases each that are pending against Boston Scientific in this court. Wave 1 and Wave 2 cases are currently being discovered pursuant to a schedule set forth in Pretrial Order No. 10 0 , entered in In re Boston Scientific Pelvic Repair Sy stem Product Liability Litigation, MDL No. 2:12-m d-2326. (ECF No. 794). All 20 0 cases will be trial-ready by the end of J anuary 20 15. 3 Decem ber 11, 20 14, was one m onth after Defendant’s deadline for filing Rule 26(a)(2) expert reports. Consequently, Plaintiff refused to attend the belated exam ination. According to Plaintiff, Defendant has failed to show good cause for its delay in requesting an independent m edical exam ination. Plaintiff argues that if Defendant is perm itted to schedule an exam ination at this late date, Plaintiff’s expert will likely have to re-do his report based upon the am ended opinions of Dr. Green, and that will lead to a supplem ental expert deposition, and so on. Plaintiff urges the court to find that the deadline for exchanging expert reports was also the deadline for completion of independent m edical exam inations and, thus by extension, find that Defendant’s request for an exam ination was sim ply m ade too late. In response, Defendant argues that it did not know until October 29, 20 14 that it needed to conduct an independent m edical exam ination of Plaintiff. Defendant concedes that Plaintiff’s counsel wrote on October 22, 20 14 and stated that every one of the firm ’s Wave 1 and Wave 2 plaintiffs were being exam ined; however, it was not until Plaintiff’s expert witness filed his Rule 26(a)(2) report that Defendant was able to evaluate the need for a counter exam ination. Defendant asserts that once it reviewed the expert reports for the plaintiffs, it learned that, contrary to counsel’s representations, not every plaintiff had been exam ined. Moreover, of the plaintiffs that had been exam ined, Defendant requested an independent m edical exam ination only of Plaintiff Zum stein. Defendant further explained that even though the decision was m ade to arrange an exam ination of Plaintiff, Dr. Green was unavailable to perform the exam ination during m uch of the m onth of Novem ber as he was on call to testify on behalf of Boston Scientific in a pelvic m esh trial before this court. Therefore, the earliest date Defendant could obtain for Plaintiff’s exam ination was Decem ber 10 . When the 4 date was received, Defendant’s counsel prom ptly notified Plaintiff’s counsel on Novem ber 21, 20 14. Defendant was unable to explain why, at a minim um , the subject of an exam ination was not broached with Plaintiff’s counsel between October 29, 20 14, when Plaintiff’s expert report was filed, and Novem ber 10 , 20 14, the date of Dr. Green’s report; however, Defendant reiterated that even if the subject had been raised, the exam ination still could not have been perform ed before Decem ber 10 , 20 14 due to Dr. Green’s schedule. Defendant adds that this tim e fram e is not prejudicial to Plaintiff considering that the deadline for conducting expert witness discovery does not expire until J anuary 12, 20 15. In fact, Dr. Green’s deposition is tentatively scheduled on J anuary 8 or 9, 20 15. Defendant points out that Plaintiff can still be exam ined reasonably in advance of Dr. Green’s deposition, thus allowing Plaintiff’s counsel am ple opportunity to review Dr. Green’s exam ination report and prepare for his deposition. Federal courts do not agree on whether Rule 26 and Rule 35 are intended to be read independently or in conjunction with each other. See Manni v. City of San Diego, Case No. 11-cv-0 435-W (DHB), 20 12 WL 60 25783, at *3 (S.D.Cal. Dec. 4, 20 12) (collecting cases). If read together, reports issued under Rule 35 are subject to Rule 26(a)(2)’s disclosure requirem ents. Indeed, the latter position has been taken on at least one occasion by a court in this district. Shum aker v. W est, 196 F.R.D. 454, 456 (S.D.W.Va. 20 0 0 ). Nevertheless, even when courts have found a clear distinction between Rule 26 and Rule 35, such that “a Rule 35 exam does not necessarily have to be requested prior to expiration of the expert disclosure and discovery deadline ... the distinction evaporates when the m oving party attem pts to use the Rule 35 exam iner and Rule 35 report in the place of a Rule 26(a)(2) expert and expert report.” Perez v. Viens, 5 Case No. 4:0 9-cv-320 6, 20 11 WL 855673, at *3 (D. Neb. Mar. 8, 20 11) (citations om itted). In other words, when the independent m edical exam ination is perform ed for the purpose of providing, developing, or supplem enting expert opinions (for instance, on topics such as the causation or extent of alleged injuries), then courts tend to agree that the witness and report are subject to the Rule 26(a)(2) deadlines. Here, the parties concur that Defendant first requested an independent m edical exam ination of Plaintiff after the court’s deadline for the disclosure of expert witnesses and Rule 26(a)(2) reports. Given that the independent m edical exam ination proposed by Defendant is intended to be perform ed by Defendant’s expert witness for use in form ing/ supporting his opinions, the exam ination should have been com pleted in tim e for the results to have been incorporated in his Rule 26(a)(2) report. So, Plaintiff is correct that Defendant’s request for the exam ination was untim ely. Nevertheless, Pretrial Order # 10 0 anticipates that for “good cause shown,” expert disclosures and reports m ay be filed or supplem ented after the deadline. (ECF No. 794). In determ ining whether good cause exists for the Defendant’s delay, the undersigned considers Defendant’s diligence in pursuing the exam ination and the reasons, if any, that justify the delay. The resulting prejudice to Plaintiff and fundam ental fairness m ust also be taken into account. Defendant has provided som e reasonable explanations for its late request. First, the am ount of tim e between the Plaintiff’s expert disclosure and the Defendant’s expert disclosure was only twelve days. In retrospect, the Order probably did not allow Defendant enough tim e between the two dates to review Plaintiffs’ expert reports, decide which plaintiffs to have exam ined, schedule the exam inations and have them conducted, provide the exam ining experts with tim e to issue the exam ination reports and integrate the findings into the experts’ Rule 26(a)(2) reports. While it is true 6 that Defendant could have requested the exam ination sooner, its decision to delay m aking such a request until after receiving Plaintiff’s expert report was reasonable. As Defendant em phasizes, by reviewing the reports, it was able to determ ine that an independent m edical exam ination was needed in only one case. Certainly, neither the parties nor the court want to subject any of the plaintiffs to an unnecessary physical exam ination. To the extent that goal is achieved by providing Defendant with an opportunity to review Plaintiff’s expert report before arranging an exam ination, the discovery schedule will have to be arranged to accom m odate that reality. Second, the request for an exam ination was m ade approxim ately three weeks after Plaintiff’s Rule 26(a)(2) disclosure, and only eleven days after the Defendant’s Rule 26(a)(2) disclosure. During the period of tim e between expert disclosures, Defendant, som e of its counsel, and its expert witness, Dr. Green, were tied up in concurrent pelvic m esh trials that were ongoing in Florida and West Virginia. Considering the circum stances, the delay in m aking the request for an exam ination is not particularly egregious, or indicative of a pattern of dilatory behavior. Finally, the docket control order for the Wave 1 and Wave 2 cases is significantly different from a standard scheduling order in that it does not include deadlines for Daubert m otions, m otions in lim ine, deposition designations, and sim ilar pretrial and trial filings. Instead, PTO # 10 0 requires the parties to conduct discovery and then subm it dispositive m otions no later than J anuary 9, 20 15 with all briefing to be com pleted by J anuary 30 , 20 15. All cases in Wave 1 and Wave 2 are expected to be ready for trial by the end of J anuary and upon resolution of the dispositive m otions, the court shall either try the cases, transfer, or rem and them . Consequently, unlike m ost cases where the scheduling order is arranged in a particular m anner, so that tasks build on 7 each other and either resolve the case or narrow the issues and culm inate in trial on a specific date, PTO # 10 0 provides only a partial schedule. At this point in the schedule, there is enough flexibility for Defendant to obtain an independent m edical exam ination without affecting the rem aining tim e fram es. Plaintiff’s argum ent that she will be greatly prejudiced if the court allows the exam ination because it will lead to supplem entation by her expert witness and inevitably add to discovery tim e and costs is not persuasive. The sam e supplem entation m ay have occurred even if the exam ination had taken place in tim e for Dr. Green to have incorporated the results in his Rule 26(a)(2) report. Sim ilarly, Plaintiff’s contention that she should not have to subm it to an exam ination by a physician whose opinions are known to be contrary to her interests is unavailing. Litigation is, by its nature, adversarial. Defendant is entitled to have its exam ination perform ed by an expert of its choosing as long as the expert is qualified. Plaintiff does not challenge Dr. Green’s credentials to perform the exam ination. Wherefore, the court finds good cause for granting Defendant’s m otion to com pel an independent m edical exam ination. Defendant shall arrange and pay for the exam ination and provide Plaintiff with notice of the tim e and place of the exam ination. The Clerk is instructed to provide a copy of this Order to counsel of record. EN TERED : Decem ber 17, 20 14 8
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