Gonzales v. Marshall University Board of Governors, No. 3:2018cv00235 - Document 75 (S.D.W. Va. 2019)
Court Description: MEMORANDUM OPINION AND ORDER DENYING MOTION TO COMPEL AN INDEPENDENT PSYCHOLOGICAL EXAMINATION denying Defendant's 55 MOTION to Compel an Independent Psychological Examination. Signed by Magistrate Judge Cheryl A. Eifert on 4/10/2019. (cc: counsel of record) (jsa)
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Gonzales v. Marshall University Board of Governors Doc. 75 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION ALICIA GON ZALES, Plain tiff, v. Cas e N o .: 3 :18 -cv-0 0 2 3 5 MARSH ALL U N IVERSITY BOARD OF GOVERN ORS, D e fe n d an t. MEMORAN D U M OPIN ION AN D ORD ER D EN YIN G MOTION TO COMPEL AN IN D EPEN D EN T PSYCH OLOGICAL EXAMIN ATION Pending is Defendant’s Motion to Com pel an Independent Psychological Exam ination. (ECF No. 55). Plaintiff has filed a Response in Opposition to the Motion, (ECF No. 64), and Defendant has filed a reply m em orandum . (ECF No. 72). Plaintiff argues that the m otion should be denied, because it is untim ely and is not supported by good cause. Having considered the record and the argum ents of counsel, the undersigned agrees that the m otion is untim ely. Furtherm ore, Defendant has failed to dem onstrate reasonable diligence that would justify its delay in pursuing the independent psychological exam ination. Therefore, the m otion is D EN IED . Fed. R. Civ. P. 35 allows the court where an action is pending 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 a m otion for good cause and on adequate notice to all parties. While Rule 35 is included in 1 Dockets.Justia.com the section of the civil rules pertaining to disclosures and discovery, the Rule itself does not include any guidance as to when in the discovery process an exam ination m ust be com pleted, or an exam iner’s report produced. Federal courts have not agreed 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. This position has been taken on m ore than one occasion by courts in this district; m ost recently, in Stratford v. Brow n, No. 2:17-CV0 3963, 20 18 WL 4623656, at *3 (S.D.W. Va. Sept. 26, 20 18) (“As a prelim inary m atter, the Court is persuaded that Rules 26 and 35 act in tandem when determ ining whether to perm it a Rule 35 exam ination requiring subsequent disclosure of the related report.”); see also Zum stein v. Boston Scientific Corp, No. 2:13-cv-0 2344, 20 14 WL 723640 6, at *3 (S.D.W. Va. Dec. 17, 20 14); Shum aker v. W est, 196 F.R.D. 454, 456 (S.D.W. Va. 20 0 0 ). However, 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, Case No. 4:0 9-cv-320 6, 20 11 WL 855673, at *3 (D. Neb. Mar. 8, 20 11) (citations om itted); Gibson v. Jensen, No. 8:16CV296, 20 17 WL 2982952, at *2– 3 (D. Neb. J uly 12, 20 17) (“[W]hen a Rule 35 exam ination is used to supplem ent or inform an expert’s opinions for use at trial, the difference between the reports disappears, or begins to, and the court becom es m ore reluctant to allow a Rule 35 exam ination for the purpose of bolstering an expert’s opinions 2 out of tim e.”). In other words, when the independent m edical exam ination is perform ed for the purpose of providing, developing, or supplem enting expert opinions, then courts tend to agree that the witness and report are subject to the Rule 26(a)(2) deadlines. In this case, a scheduling order was entered on April 18, 20 18, which allowed Defendant through and including Decem ber 3, 20 18 in which to m ake expert disclosures under Fed. R. Civ. P. 26(a)(2)(A). (ECF No. 10 ). The parties were given until Decem ber 14, 20 18 to com plete discovery requests, and until February 1, 20 19 to conduct depositions. February 1, 20 19 was also the discovery deadline. (Id.). The scheduling order was m odified, in part, on Decem ber 26, 20 18, extending the deadline for conducting depositions to April 15, 20 19. (ECF No. 37). Notably, the deadlines for subm itting expert disclosures and for serving discovery requests were n o t extended at that tim e. On December 3, 20 18, Defendant filed a Rule 26(a)(2)(A) disclosure, identifying David Claym an, a psychologist, as an expert witness on the subject of Plaintiff’s em otional health. (ECF No. 26). The disclosure included a report prepared by Dr. Claym an on Novem ber 29, 20 18. (ECF No. 64-1). In the report, Dr. Claym an advised that he required additional m aterials to com plete his opinions. He also requested the opportunity to conduct an independent psychological exam ination. (Id. at 2). On Decem ber 18, 20 18, Defendant’s counsel requested Plaintiff’s agreem ent to participate in an independent psychological exam ination. (ECF No. 55-2). Plaintiff’s counsel refused the following day, but indicated that she m ight reconsider if provided with additional inform ation. (ECF No. 55-3). Apparently, defense counsel m ade no further efforts to com m unicate with Plaintiff’s counsel regarding the proposed exam ination; instead, m ore than three m onths later, Defendant filed the instant m otion seeking an order to com pel the exam ination. (ECF No. 64 at 2). 3 It is undisputed that Defendant’s m otion com es well past the deadlines for filing expert reports and for serving discovery requests, both of which expired in Decem ber 20 18. Indeed, the m otion was filed only twenty days before the close of all discovery and right on the heels of the deadline for filing dispositive m otions. Moreover, Defendant provides absolutely no explanation for its delay in pursuing an independent psychological exam ination despite its expert’s written request for one, which was m ade nearly four m onths before the m otion was filed. In order to grant Defendant’s m otion, deadlines in the scheduling order that have already passed, or that will pass in a m atter of days, will have to be extended. To justify the extension of a past deadline, Defendant m ust show “excusable neglect” and, to extend a future deadline, Defendant m ust dem onstrate “good cause.” Stratford, 20 18 WL 4623656, at *3 (holding that Rule 16(b) requires good cause to am end a scheduling order; “[a]dditonally, when a m otion to m odify a deadline is filed after the deadline's passage, the party also m ust establish “excusable neglect.”). “To establish good cause, [Defendant] m ust show the deadlines cannot reasonably be m et despite the [Defendant’s] diligence; good cause is lacking if the m ovant has not acted diligently to com ply with the schedule.” Jackson v. United States, No. 3:14-150 86, 20 16 WL 50 20 56, at *2 (S.D.W. Va. Feb. 8, 20 16) (citing Cook v. How ard, 484 F. App'x 80 5, 815 (4th Cir. 20 12)). Excusable neglect is m ore difficult to establish, depending upon a review of all relevant factors, with “the reason for the delay, including whether it was within the reasonable control of the m ovant” carrying the m ost significance. Stratford, 20 18 WL 4623656, at *2 (quoting Thom pson v. E.I. DuPont Nem ours & Co., Inc., 76 F.3d 530 , 534 (4th Cir. 1996)). When conducting the requisite analysis, the undersigned finds that Defendant fails to dem onstrate either excusable neglect or good cause. First, as stated, Defendant 4 supplies no rationale whatsoever for allowing the m atter to sit, gathering dust, for m ore than three m onths. Plaintiff’s counsel invited a discussion on the subject, but for reasons again unknown, defendant’s counsel sim ply let the conversation lapse. On December 20 , 20 18, one day after Plaintiff’s refusal to subm it to an independent exam ination, Defendant m oved to m odify the scheduling order and continue the trial date, but d id n o t raise the issue of an independent m edical exam ination or seek an extension of the expert disclosure or discovery request deadlines. (ECF No. 34). Instead, Defendant asked only that the deposition deadline be extended, which consequently forced a continuance of the deadlines for dispositive m otions, settlem ent and pretrial conferences, the pretrial order, and the trial date. (ECF Nos. 34, 37). Defendant’s m otion was granted, extending the deposition deadline and m oving back the rem aining dates, including the trial date, by approxim ately two and half m onths. Had Defendant brought the issue of the exam ination to the Court’s attention at that tim e, the dispute could have been resolved and the tim e fram es for the independent exam ination incorporated into the am ended scheduling order. In addition, by disregarding, or overlooking, the exam ination for an additional three m onths, Defendant lost good opportunities to have the exam ination conducted at tim es that would have been m ost convenient for Plaintiff, who is a fulltim e student at a college in Pennsylvania. If Defendant had resolved the dispute in m id-Decem ber, the exam ination m ight have taken place during Plaintiff’s Winter or Spring break. However, Defendant’s inexplicable delay now leaves Plaintiff in the position of having to leave school while classes are ongoing, a few weeks before final exam inations, to subm it to a lengthy psychological exam ination that should have been perform ed m onths ago. The only other alternative is to wait until m id-May when Plaintiff is no longer in school, which 5 would further delay the resolution of this case. Finally, the discovery sought by Defendant, as Plaintiff points out, is likely to lead to additional discovery. Stratford, 20 18 WL 4623656, at *3 (noting that “there is a ripple effect necessarily caused by a Rule 35 exam ination ordered after Rule 26 disclosure deadlines.”). At the very least, Plaintiff will want an opportunity to respond to or refute the outcom e of the exam ination, which m ay result in further extensions of pretrial deadlines. Taking into account all of the circum stances, the Court concludes that Defendant has not been diligent in pursuing an independent m edical examination and thus has failed to provide reasonable grounds to accom m odate such a request at this late date. Defendant relies upon Zum stein, 20 14 WL 723640 6, in support of its m otion. Zum stein is readily distinguishable from the instant m atter. In Zum stein, a m ultidistrict litigation in which counsel were developing waves of 10 0 cases at a tim e, defense counsel waited approxim ately one m onth after being notified by Plaintiffs’ counsel that all of the plaintiffs were being exam ined before asking for an independent m edical exam ination of one of the plaintiffs. When Plaintiff objected that the defense exam ination would not take place before Defendant’s expert report was due, defense counsel argued that they were unable to determ ine the need for defense exam inations until Plaintiffs’ expert reports were produced. Upon receiving the reports and identifying the one plaintiff that should be exam ined, defense counsel diligently began scheduling the exam ination. However, the earliest date that could be secured for the exam ination was one m onth after Defendant’s expert reports were due. Defense counsel argued that even with this delay, which would result in a supplem entation of the defense expert’s report, the report still would be available reasonably in advance of the scheduled deposition of Defendant’s exam ining 6 expert. Clearly, the circum stances in Zum stein were m uch different than those in this case. Counsel in Zum stein provided a reasonable explanation as to why the request for an exam ination was not m ade until the expert reports were received, and then counsel dem onstrated diligence in pursuing and scheduling the exam ination. In addition, the exam ination was scheduled within one m onth after the deadline for expert reports, and the supplem ental report resulting from the exam ination was available prior to the previously scheduled deposition of the exam ining expert. Due to the unique scheduling order in place in the wave cases, the delay in perform ing the defense exam ination did not require the m odification of other deadlines. Therefore, the facts before the Court in Zum stein satisfied the good cause standard for supplem entation of expert reports, which was the standard contained in the docket control order. That sim ply is not the case here. As such, Defendant’s m otion is denied. The Clerk is directed to provide a copy of this Order to counsel of record. EN TERED : April 10 , 20 19 7
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