JANIS VAN MEERVELD, Magistrate Judge.
Before the Court are (1) Defendants' Motion for Contempt, Sanctions and to Compel Independent Medical Examination (Rec. Doc. 25) and (2) Defendants' Motion for Sanctions (Rec. Doc. 26) referred to the magistrate judge for consideration by the District Judge. For the following reasons, (1) the Motion for Contempt, Sanctions and to Compel Independent Medical Examination (Rec. Doc. 25) is DENIED as to contempt and sanctions and, as ordered by this Court on December 15, 2016 (Rec. Doc. 30), GRANTED as to compelling the independent medical examination; and (2) the Motion for Sanctions (Rec. Doc. 26) is DENIED.
The Plaintiffs in this case allege injuries arising out of a car accident that occurred on July 20, 2015. (Complaint, at 2, Rec. Doc. 1). Plaintiffs allege that a 2011 Toyota Sequoia driven by plaintiff Sharon Schluter with plaintiff Catherine Wilbert as passenger was struck by a 2008 F-450 truck and trailer owned by defendant Cimarron Underground, Inc. ("Cimarron") and driven by Thomas Hite.
On November 18, 2016, Defendants filed a motion to compel the depositions of Wilbert and Schluter, arguing that Wilbert and Schluter should be deposed in advance of the December 16, 2016, deadline for the Defendants' expert reports. (Rec. Doc. 14).
Wilbert did not appear for her IME as ordered. The parties dispute the details of Wilbert's failure to appear. Wilbert asserts that she was late because she had trouble arranging for care of her mother who suffers from Alzheimer's. (Mem. Opp., at 2, Rec. Doc. 36). It appears that Dr. Robert's office informed the Defendants that Wilbert called the office after the appointment start time of 10:45, at which point Dr. Robert had already left. (So. Brain & Spine Email, at 1, Rec. Doc. 25-2). Dr. Robert's office staff reported that Wilbert said she was not told to arrive prior to 10:45 a.m. and that by 11:00 she was not at the office.
As a result of Wilbert's failure to appear for her IME, the Defendants filed the present Motion for Contempt, Sanctions and to Compel Independent Medical Examination. (Rec. Doc. 25). Defendants represented in their memorandum in support that Wilbert's counsel had indicated that Wilbert would be available for a rescheduled IME on December 27, 2016, at 9:00 a.m. and would appear 30 minutes early at 8:30 a.m. (Rec. Doc. 25-1, at 3). On an expedited basis, the undersigned ordered that Wilbert appear for her IME on December 27, 2016, and deferred ruling on Defendants' request for sanctions until the originally scheduled submission date of December 28, 2016. (Rec. Doc. 30). The Defendants had also filed a Motion to Continue their expert report deadline and a Motion for Sanctions before the District Judge. (Rec. Doc. 26). The District Judge granted the Motion to Continue the expert report deadline but referred the Motion for Sanctions to the undersigned magistrate judge. (Rec. Doc. 29).
Defendants argue that this Court should impose sanctions against Wilbert because she willfully violated this Court's December 5, 2016, order. (Mem. Supp., at 2, Rec. Doc. 25-1). They point out that this is the third motion to compel that they have had to file.
Wilbert responds that her failure to appear was not willful but was a result of unforeseen issues concerning the care of her mother. (Rec. Doc. 36, at 3). Her counsel submit that they have assured Defendants' counsel that she will arrive at Dr. Robert's office promptly at 8:30 a.m. on December 27, 2016.
Defendants' reply memorandum underscores the time and effort expended in filing the motions to compel. (Rec. Doc. 39). They insist that these resources would not have been spent if Plaintiffs had cooperated in good faith in the discovery of their claims.
"If a party or a party's officer, director, or managing agent . . . fails to obey an order to provide or permit discovery . . . the court where the action is pending may issue further just orders." Fed. R. Civ. Proc. 37(b)(2)(A). Possible sanctions include an order directing that certain facts be taken as established for purposes of the action, prohibiting the disobedient party from supporting designated claims, or even dismissing the action.
"[U]sually, . . . a finding of bad faith or willful misconduct [is required] to support the severest remedies under Rule 37(b)—striking pleadings or dismissal of a case."
There is no dispute that Wilbert failed to timely appear for her IME on December 9, 2016, as ordered by this Court. While failing to appear for a Court ordered IME may warrant sanctions against the offending party, the Court finds that sanctions are not justified here. First, the Court notes that Plaintiffs' counsel were managing a death in the family the very same week this Court ordered the IME and in which the IME was to be performed. It appears that this unfortunate circumstance played a role in Plaintiffs' counsel's failure to ensure that their client would appear on time for her IME and/or her pre-appointment paperwork. The Court also notes that this appears to be the first instance that personal issues have prevented Wilbert from appearing for a scheduled examination or deposition. While there is some dispute about how late Wilbert was for her appointment, it appears that she was making an effort to arrive and attempted to notify the doctor's office of her delay. The Court finds no evidence that Wilbert willfully failed to appear for her IME.
The Court is cognizant that the parties' inability to work out their discovery disputes between themselves has required the filing of several motions before this Court. However, these previous motions did not result from the failure to obey a Court order. The Court also notes that prior to filing the present motion, it appears that Wilbert had already agreed to timely appear for a rescheduled IME. Accordingly, in light of all of these circumstances, the Court finds that imposing an award of attorney's fees or other sanction at this juncture would be unjust. The Court cautions that further failures by the Plaintiffs or their counsel to obey court orders or comply with discovery obligations may warrant sanctions.
For the foregoing reasons, (1) the Motion for Contempt, Sanctions and to Compel Independent Medical Examination (Rec. Doc. 25) is DENIED as to contempt and sanctions and, as ordered by this Court on December 15, 2016 (Rec. Doc. 30), GRANTED as to compelling the independent medical examination; and (2) the Motion for Sanctions (Rec. Doc. 26) is DENIED.