Filed: Aug. 08, 2013
Latest Update: Aug. 08, 2013
Summary: ORDER G.R. SMITH, Magistrate Judge. In this maritime personal injury case, defendant A.P. Moller-Maersk A/S (APMM) moves under Fed. R. Civ. P. 35 for an Order directing plaintiff John Horton 1 to submit to an Independent Medical Examination (IME) by AMPP's selected neurologist, Joel Greenberg, M.D. Doe. 73. Horton opposes, insisting he has already been examined by neurologist Kevin Ammar, M.D., who is highly qualified and was "not an expert hired for purposes of litigation." Doe. 89 at 2. Pl
Summary: ORDER G.R. SMITH, Magistrate Judge. In this maritime personal injury case, defendant A.P. Moller-Maersk A/S (APMM) moves under Fed. R. Civ. P. 35 for an Order directing plaintiff John Horton 1 to submit to an Independent Medical Examination (IME) by AMPP's selected neurologist, Joel Greenberg, M.D. Doe. 73. Horton opposes, insisting he has already been examined by neurologist Kevin Ammar, M.D., who is highly qualified and was "not an expert hired for purposes of litigation." Doe. 89 at 2. Plu..
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ORDER
G.R. SMITH, Magistrate Judge.
In this maritime personal injury case, defendant A.P. Moller-Maersk A/S (APMM) moves under Fed. R. Civ. P. 35 for an Order directing plaintiff John Horton1 to submit to an Independent Medical Examination (IME) by AMPP's selected neurologist, Joel Greenberg, M.D. Doe. 73. Horton opposes, insisting he has already been examined by neurologist Kevin Ammar, M.D., who is highly qualified and was "not an expert hired for purposes of litigation." Doe. 89 at 2. Plus, Greenberg is employed by Memorial Hospital, which is represented by AMPP's law firm. Id. In any event, since Ammar has provided an opinion, AMPP cannot show the good cause Rule 35 requires for another one. Id.
"The court where the action is pending may order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed. R. Civ. P. 35(a)(1). The order may be made only on motion for good cause shown. Rule 35(a)(2); Schiagenhauf v. Holder, 379 U.S. 104, 118-22 (1964). Duplication is a factor courts may consider:
Under [Fed. R. Civ. P.] 26(b)(2)(c), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Id. at 26(b)(2)(C). In assessing whether the burden of the discovery outweighs its benefit, a court must consider: (1) the needs of the case; (2) the amount in controversy; (3) the parties' resources; (4) the importance of the issues at stake in the litigation; and (5) the importance of the proposed discovery in resolving the issues. Id. at 26(b) (2) (C)(iii).
Mitchell v. Aramark, 2012 WL 5608376 at * 2 (E.D. La. Nov. 15, 2012). Note, however, that Rule 35's language
"does not limit the number of examinations." Peters v. Nelson, 153 F.R.D. 635, 637 (N.D.Iowa 1994). "Each request for an independent medical examination must turn on its own facts, and the number of examinations to which a party may be subjected depends solely upon the circumstances of the underlying request." Id. "Even when an examination has been previously ordered in the same case, a subsequent examination may be ordered if the court deems it necessary." Id. at 637-38 (citing Lewis v. Neighbors Constr. Co., Inc., 49 F.R.D. 308, 309 (W.D.Mo.1969)).
Terrell v. Harder Mechanical Contractors Inc., 2011 WL 1483548, *2 (N.D. Cal. Apr. 19, 2011).
As in Mitchell, there is no dispute here that John Horton has placed his medical condition in dispute. And, while cast as a general negligence case (originally filed in state court, then removed to this Court), doc. 1-1; see also doc. 56 (Status Report silent on whether any statutory remedies are contemplated), it is unclear whether Horton has or will invoke one of the federal protective statutes,2 see doc. 1-1; doc. 734 at 2, so one inquiry is the purpose of Ammar's examination and treatment, whether it is periodic in nature, etc.3
Litigation efficiency is not served by gratuitously allowing duplicative examinations. The Court will tilt in APMM's favor, however, as even Horton concedes that APMM "may [have] some room to argue about the lasting effects Mr. Horton's injuries. . . ." Doc. 89 at 2 n. 1. John Horton, in that regard, specifically pleads permanent, continuous pain and suffering. Doe. 1-1 at 10 ¶¶ 16-17 (he "has endured and will continue to endure physical and mental pain and suffering. Plaintiff John Horton's injuries are permanent. . . ."). A later-in-time examination, at APMM's expense, would be useful to document current pain levels and projected persistence. And Horton no doubt will seek a large verdict to cover those specific damages. All it takes is a reasonable basis to support Rule 35's good cause requirement, and that has been shown here. Mitchell v. Iowa Interstate Railroad Ltd., 2009 WL 2431590 at * 2 (C.D. Ill. Aug. 5, 2009); Geer v. Amex Assur. Co., 2009 WL 4646021 at * 2 (E.D. Mich. Dec. 4, 2009).4
Finally, the Court overrules Horton's objection — that Greenberg may be biased because he is employed by the same hospital represented by defense counsel's firm — as without merit. There is no legal basis for prejudging an expert's credibility at the IME stage, see Mitchell, 2012 WL 5608376 at * 4, and bias is grist for the cross-examination mill.
Accordingly, the Court GRANTS APMM's motion for a Rule 35 examination. Doe. 73.
SO ORDERED.
