Mager v. Wisconsin Central Ltd., No. 18-1421 (6th Cir. 2019)Annotate this Case
Mager alleged that he was seriously and permanently injured when he slipped on oil while he was working as a trackman at WCL’s Marquette, Michigan railway yard. Mager filed suit under the Federal Employer’s Liability Act, 45 U.S.C. 51. He was deposed and was sent notice of an independent medical examination (IME). Plaintiff’s counsel, Foley, objected because the examiner’s Appleton Wisconsin office was a substantial drive from Mager’s home in Michigan's Upper Peninsula. Defense counsel sought an order compelling the IME (FRCP 35(a)) and to delay third-party mediation. The parties agreed that Mager would submit to the IME, that WCL would pay his mileage, and that a settlement conference would be scheduled with the court in lieu of mediation. After Mager objected to completing a medical questionnaire, a Rule 35 Order was entered directing Mager to “appear at the IME ….The interview and exam shall not exceed three (3) hours.” Mager and Foley appeared for the IME. Foley recorded the proceedings without prior notice to defense counsel. Mager repeatedly declined to answer relevant questions about his condition, medications, and how the injury occurred, referring the doctor to his deposition. Mager did not allow Mager’s driver’s license to be copied. Mager submitted to a physical examination. The Sixth Circuit affirmed the dismissal of Mager’s complaint with prejudice, FRCP 37(b)(2)(A)(v), as a sanction primarily for his and Foley’s conduct at the IME, which was willful, in bad faith, and prejudicial to the defense. No other sanctions would reflect the misconduct's seriousness.