Lopez v. City of Imperial et al, No. 3:2013cv00597 - Document 23 (S.D. Cal. 2014)
Court Description: ORDER Granting Defendants' 19 Ex Parte Motion Compelling Independent Medical Examination of Plaintiff. Signed by Magistrate Judge William V. Gallo on 1/21/2014. (knb)
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Lopez v. City of Imperial et al Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESUS LOPEZ, Plaintiff, 12 13 v. 14 CITY OF IMPERIAL, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) Civil No.13-0597-BEN(WVG) ORDER GRANTING DEFENDANTS’ EX PARTE MOTION COMPELLING INDEPENDENT MEDICAL EXAMINATIONS OF PLAINTIFF (DOC. NO. 19) 17 18 Defendants have filed an Ex Parte Motion Compelling 19 Independent Medical Examinations (“IMEs”) of Plaintiff 20 (“Motion”). Plaintiff has filed an Opposition to Defen- 21 dants’ Motion. Defendants have filed a Reply to Plain- 22 tiff’s Opposition and a Supplemental Brief. The Court, 23 having reviewed the moving, opposition, reply and supple- 24 mental papers of counsel, and the record in this case, 25 HEREBY GRANTS Defendants’ Motion. 26 A. BACKGROUND 27 On December 12, 2012, Plaintiff filed his Complaint 28 in the Imperial County Superior Court. On March 14, 2013, 1 13cv0597 Dockets.Justia.com 1 Defendants removed the case to this Court. The Complaint 2 contains, inter alia, allegations regarding the damages 3 suffered by Plaintiff as a result of the incident de- 4 scribed in the Complaint. The damages alleged in the 5 Complaint stem from (a) a severe concussion; (b) torn 6 ligaments in Plaintiff’s knees and forearm; (c) severe 7 burns from mace or pepper spray; and (d) Plaintiff may 8 need surgery on his knee and removal of a testicle. 9 (Complaint at 4, para. XII). 10 On July 1, 2013, the Court issued a Case Management 11 Conference Order Regulating Discovery (“CMC Order”). The 12 CMC Order states, in pertinent part, that (a) on or before 13 December 20, 2013, all fact discovery shall be completed; 14 (b) on or before January 24, 2014, the parties shall 15 exchange a list of all expert witnesses to be called at 16 trial; (c) any party may supplement its expert designation 17 by February 7, 2014; (d) designated expert witnesses shall 18 provide to all other parties their expert witness reports 19 by March 7, 2014; and (e) designated expert witnesses may 20 supplement their expert reports to contradict or rebut 21 evidence on the same subject matter identified in an 22 expert report submitted by another party, by April 4, 23 2014. 24 On June 14, 2013, Defendants received Plaintiff’s 25 medical records which presumably supported1/ Plaintiff’s 26 27 28 1/ Defendants do not inform the Court about the contents of the medical records received. 2 13cv0597 1 allegations regarding the injuries Plaintiff sustained as 2 a result of the incident described in the Complaint. 3 On December 3, 2013, Defendants took Plaintiff’s 4 deposition. At the deposition, Plaintiff testified regard- 5 ing his injuries. His testimony included that he suffers 6 from (a) neck, back and leg pain; (b) testicle pain; (c) 7 memory loss; (d) headaches; and (e) jaw pain. 8 On December 13, 2013, Plaintiffs and Defendants 9 filed a Joint Motion For Continuance of Discovery Dates. 10 On December 17, 2013, the Court issued an Order Granting 11 In Part And Denying In Part the Joint Motion. In the 12 Order, the Court quoted from paragraph 5 of the CMC Order 13 issued in this case, which clearly states: 18 ... all discovery under Rules 30-36 of the Federal Rules of Civil Procedure must be initiated a sufficient period of time in advance of the (discovery) cut-off date, so that it may be completed by the cut-off date, taking into account the times for services, notice and response as set forth in the Federal Rules of Civil Procedure. (emphasis added). 19 The Order also allowed further discovery to be 14 15 16 17 20 conducted, 21 reasonably raised by Plaintiff’s deposition.” (“December 22 17, 2013 Order,” at 3). The Order extended the discovery 23 cut-off date to January 20, 2014 for the above-noted 24 discovery. limited that discovery “to only that Defendants now seek the IMEs of Plaintiff by a 25 26 but neurosurgeon, orthopedist, dentist/oral surgeon2/, and 27 2/ 28 On December 27, 2013, Plaintiff’s counsel agreed to allow Defendants to conduct an IME by a dentist. Therefore, the Court will not address the propriety of that IME in this Order. 3 13cv0597 1 urologist. Defendants argue that at Plaintiff’s December 2 3, 2013 deposition, they became aware of Plaintiff’s 3 continuing complaints of (a) neck, back and leg pain; (b) 4 testicle pain; (c) memory loss; (d) headaches; and (e) jaw 5 pain. Plaintiff opposes the IMEs as requested by Defen- 6 dants because the sought IMEs are not follow-up to discov- 7 ery on issues raised in Plaintiff’s deposition. 8 B. FEDERAL RULE OF CIVIL PROCEDURE 35 9 Federal Rule of Civil Procedure 35 authorizes a 10 court to “order a party whose... physical condition... is 11 in controversy to submit to a physical... examination by 12 a suitably licensed or certified examiner.” Fed. R. Civ. 13 P. 35(a)(1). However, the order “may be made only on a 14 motion for good cause.” Fed.R. Civ. P. 35(a)(2)(A). These 15 requirements necessitate “an affirmative showing by the 16 movant that each condition as to which the examination is 17 sought is really and genuinely in controversy and that 18 good cause exists for ordering each particular examina- 19 tion.” Juarez v. Autozone Stores, Inc., 2011 WL 1532070 at 20 *1 (S.D. Cal. 2011), citing Schlagenhauf v. Holder, 379 21 U.S. 104, 118 (1964). 22 Factors that courts have considered in assessing 23 whether “good cause” exists include, but are not limited 24 to, “the possibility of obtaining the desired information 25 by other means, whether Plaintiff plans to prove (his) 26 claim through the testimony of expert witnesses, whether 27 Plaintiff is claiming ongoing (injury).” Juarez, supra at 28 *1, citing Impey v. Office Depot, Inc., 2010 WL 2985071 at 4 13cv0597 1 *21 (N.D. Cal. 2010), Turner v. Imperial Stores, 161 2 F.R.D. 89, 97-98 (S.D. Cal. 1995). 3 Fed. R. Civ. P. 35 does not specify a deadline for 4 conducting an IME. Guitron v. Wells Fargo Bank, 2011 WL 5 6012595 at *1 (N.D. Cal. 2011). Some courts do not catego- 6 rize 7 “expert” discovery. Lester v. Mineta, 2006 WL 3741949 at 8 *1-2 (N.D. Cal. 2006). However, some courts have found 9 that Fed.R.Civ. P. 26(a)(2) requires that the IME report 10 be produced at the time of expert witness disclosures, 11 meaning that an IME must occur before expert witness 12 disclosures. Miksis v. Howard, 106 F.3d 754, 758 (7th Cir. 13 1997). But in Minnard v Rotech Health, Inc., 2008 WL 14 150502 at *2-3 (E.D. CA 2008), the court determined that 15 an IME report is an expert witness report because the 16 examining expert would not merely recite the objective 17 results 18 results and offer conclusions and opinions for the trier 19 of fact. Minnard has been followed by Silva v. Mercado 20 Food Enterprise, Inc., 2012 WL 174926 at *5 (E.D. CA 21 2012). Rule of 35 examinations the as examination, either but “non-expert” would interpret or the 22 The law in this area does not appear to be well 23 settled. Whether IMEs are fact or expert witness discovery 24 certainly could influence the outcome of this dispute. 25 Perhaps IMEs are best described as hybrid, both fact and 26 expert witness discovery, depending on which view one 27 finds most persuasive. One view of Rule 35 is that IME 28 examiners are “experts employed only for trial prepara5 13cv0597 1 tion,” pursuant to Fed. R. Civ. P. 26(b)(4)(B). As such, 2 a court will typically allow an examinee to depose or call 3 a Rule 35 IME examiner as a witness on a showing of 4 “exceptional circumstances.” Lehan v. Ambassador Programs, 5 Inc., 190 F.R.D. 670, 671-672 (E.D. WA 2000); Carroll v. 6 Praxair, Inc., 2007 WL 437697 at *2 (W.D. LA 2007). Of 7 course, Rule 35 IMEs often arise in the context of devel- 8 oping expert testimony for trial with the expert witnesses 9 then subject to the discovery obligations of Rules 26 and 10 11 30. As discussed later in footnote 3 of this Order, 12 clearly the parties, and especially Defendants, were 13 dilatory in not moving for IMEs before now, notwithstand- 14 ing that Plaintiff has just recently been deposed. Defen- 15 dants had sufficient information available to them from 16 the Complaint alone and from Plaintiff’s medical records 17 they obtained during discovery, to give them ample reason 18 and sufficient justification to seek Rule 35 IMEs before 19 now during fact discovery. Fortunately for Defendants, 20 given the lack of clarity as to whether IMEs are relegated 21 to fact discovery or cross over into expert discovery, the 22 Court will give the benefit of the doubt to Defendants, 23 especially in light of the delay in deposing Plaintiff. 24 Accordingly, the Court tends to agree with Minnard 25 and Silva. If the IME examiner will offer opinions and 26 conclusions regarding the objective facts derived from an 27 examination, the IME and the report produced by the IME 28 examiner is expert discovery, not fact discovery. There6 13cv0597 1 fore, the timing of a motion for an IME is dictated by the 2 terms of the scheduling order regarding expert witness 3 discovery, as set forth in the case. 4 Here, the CMC Order issued in this case states that 5 Plaintiff and Defendants have until January 24, 2014 to 6 designate expert witnesses to be called at trial. There- 7 fore, Defendant’s Motion To Compel the requested IMEs is 8 timely. 10 C. GOOD CAUSE EXISTS TO ORDER THE IMES REQUESTED BY DEFENDANTS As previously noted in this Order, Plaintiff testi- 11 fied at his deposition that he continues to suffer from 12 (a) neck, back and leg pain; (b) testicle pain; (c) memory 13 loss; (d) headaches; and (e) jaw pain. Defendants seek 14 IMEs by a neurosurgeon (presumably to examine Plaintiff 15 and offer a report and testimony regarding Plaintiff’s 16 concussion, memory loss and headaches), an orthopedist 17 (presumably to examine Plaintiff and offer a report and 18 testimony regarding Plaintiff’s neck, back, knee, and leg 19 pain), and a urologist (presumably to examine Plaintiff 20 and offer a report and testimony regarding Plaintiff’s 21 testicle pain). 9 22 1. Good Cause Factors 23 The Court must find good cause to order the IMEs 24 requested by Defendants. Therefore, the Court analyzes 25 below the factors commonly used to find good cause: 27 a. The possibility of obtaining the information by other means Here, there is no possibility that Defendants can 28 obtain the information, opinions and conclusions of an 26 7 13cv0597 1 expert witness pursuant to Rule 35 in any other way, but 2 to have Plaintiff submit to the IMEs. Defendants are not 3 required to simply rely on Plaintiff’s expert witnesses 4 regarding Plaintiff’s injuries and the damages he suffered 5 therefrom. Therefore, this factor weighs in favor of 6 Defendants. b. Whether Plaintiff intends to prove his claims of injuries sustained through the testimony of expert witnesses 7 8 At 9 this time, the Court can not conclude that 10 Plaintiff intends to prove his sustained injuries through 11 the testimony of expert witnesses. As previously noted in 12 this Order, Plaintiff’s and Defendants’ expert witness 13 disclosures have been ordered to be made on January 24, 14 2014. The Court notes that if Plaintiff does not designate 15 an expert witness to testify about one or some of his 16 alleged injuries, an IME regarding that alleged injury may 17 not be necessary or required. As a result, this factor 18 does not weigh in favor of Plaintiff or Defendants. c. Whether the desired materials are relevant 19 20 Plaintiff claims numerous injuries that resulted 21 from the incident described in the Complaint. The alleged 22 injuries 23 damages. There can be little dispute that the information, 24 opinions, 25 alleged injuries that will be presented after the re- 26 quested IMEs are relevant to Plaintiff’s claims in this 27 action. Therefore, this factor weighs in favor of Defen- 28 dants. serve and as the basis conclusions for Plaintiff’s pertaining 8 to claimed Plaintiff’s 13cv0597 1 d. Whether Plaintiff claims ongoing injuries 2 As previously noted in this Order, Plaintiff testi- 3 fied at his December 3, 2013 deposition that he continues 4 to suffer from numerous injuries sustained in the incident 5 described in the Complaint. Therefore, this factor weighs 6 in favor of Defendants. 7 The analysis of the factors noted above show, and 8 the Court finds, that good cause exists to order the IMEs 9 as requested by Defendants. Plaintiff’s Ex Parte Motion 10 Compelling Independent Medical Examinations of Plaintiff 11 is GRANTED. The IMEs requested by Defendants shall be 12 scheduled immediately and shall comply with the require- 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 13cv0597 1 ments of Fed. R. Civ. P. 35.3/ 2 IT IS SO ORDERED. 3 4 DATED: January 21, 2014 5 6 Hon. William V. Gallo U.S. Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 3/ 18 19 20 21 22 23 24 25 26 27 28 The Court notes that Defendants’ Motion, Plaintiff’s Opposition and Defendants’ Reply are severely lacking in the analysis of whether Plaintiff’s Motion was timely filed, whether IMEs are subject to the fact discovery cut-off or the expert witness discovery cut-off, and whether good cause exists for the Court to order the IMEs requested by Defendants. As previously noted in the December 17, 2013 Order of this Court, it appears that Plaintiff and Defendants have not been diligent in pursuing and defending this action. As soon as Defendants were served with Plaintiff’s Complaint, they were aware that some of Plaintiff’s alleged damages stemmed from orthopedic and testicular injuries. Yet, Defendants waited until December 3, 2013, almost one year after the Complaint was filed, to take Plaintiff’s deposition at which they confirmed that Plaintiff’s injuries were ongoing. The Court has not been made fully aware of how long Plaintiff’s deposition was delayed due to his health problems. However, had Defendants taken Plaintiff’s deposition earlier in this litigation, they would have learned about Plaintiff’s other alleged injuries. Instead, they waited until approximately three weeks before the fact discovery cut-off to learn about Plaintiff’s other alleged injuries, and to seek IMEs of Plaintiff, without analyzing whether an IME is fact or expert witness discovery, thereby believing that they needed to file an ex parte motion to compel the requested IMEs. Despite the court’s warning in the December 17, 2013 Order that the parties immediately begin discovery to follow-up on Plaintiff’s December 3, 2013 deposition, Plaintiff requested that Defendants not file their motion to compel the IMEs for at least one week, thereby further delaying the resolution of their dispute. The recalcitrant behavior displayed by counsel in this case as noted above, will no longer be countenanced by the Court. 10 13cv0597
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