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Vilkhu v. City of New York

September 13, 2007


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff Harwinder Vilkhu commenced this action on May 5, 2006, against defendants The City of New York, Police Officer and/or Sergeant Hoehl, and Police Officers John Does #1-4. The Complaint was amended on April 10, 2007 to add as defendants Police Officer and/or Sergeant James Long, Police Officers Jeffrey Cline, Stephen Samartino, Adam Jangel, and Police Officers John/Jane Does #1-10. Plaintiff alleges that while sitting on a bench on the York College campus in Queens, he was grabbed by defendant police officers with no reason given, beaten and subjected to cursing and humiliation including ethnic slurs. Plaintiff alleges violations of 42 U.S.C. § 1983 and § 1981 and the New York State Constitution, Art. I, § 12. Plaintiff also brings state law claims of assault, battery and negligence, including negligent hiring and retention. Now before this Court is plaintiff's appeal of the June 6, 2007 and June 15, 2007, orders of Magistrate Judge James Orenstein compelling plaintiff to be subject to a physical examination under Fed. R. Civ. P. 35,*fn1 as well as defendants' cross-appeal of the magistrate judge's June 21, 2007, denial of their request that the examination take place in New York rather than in Philadelphia. For the reasons set forth below, the magistrate's orders are affirmed.


The following facts are taken from plaintiff's Amended Complaint, the record of the proceedings before the magistrate judge, and submissions of the parties in connection with this motion. Disputes are noted.

Factual History

On May 8, 2005, plaintiff Vilkhu, a carpenter and manual laborer who lived in Queens, New York, states that he was sitting on a bench on the campus of York College and talking on his cell phone about his day's work, when he was grabbed by the collar and forcefully moved toward the gate of the campus by New York City Police Department ("NYPD") officers. The officers, soon joined by two additional officers, repeatedly smashed a flashlight into plaintiff's groin; repeatedly rubbed and squeezed his penis; repeatedly cursed at him using ethnic slurs; and handed him a summons signed by defendant Hoehl. Defendants dispute plaintiff's version of events. Defendants state that officers had been called to the campus to help control an overflow crowd at a concert, that plaintiff had been asked and had repeatedly refused to move on, and that he had shouted epithets at the officers for five or ten minutes. After a 911 call was made and an ambulance arrived on the scene, plaintiff was taken to a local hospital where he was treated for his injuries on May 8 through May 9, 2005, as well as on later occasions, and continues to receive treatment to this day. As a result of his injuries, plaintiff states that he continues to suffer physical pain, including herniated and damaged muscles, medical expenses, lost wages, reputational injury and psychological pain and suffering. He states that was unable to return to work for many months, is still unable to perform many tasks such as climbing ladders and lifting heavy items, and still experiences great pain during physical activities, including sexual relations.

Procedural History

Plaintiff filed the original Complaint on May 5, 2006. An initial scheduling conference was held before Magistrate Judge Orenstein on September 11, 2006, which established the following dates for the completion of discovery: fact discovery to be completed by December 22, 2006, plaintiff's expert report due by December 22, 2006, defendants' rebuttal expert report due by January 30, 2007, and expert depositions to be completed by February 28, 2007. Thereafter, amended scheduling orders were entered on September 22, 2006; October 20, 2006; and January 23, 2007.*fn2 On April 10, 2007, plaintiff filed an Amended Complaint, joining new defendants and adding additional claims. On April 13, 2007, Magistrate Judge Orenstein issued a Fourth Amended Case Management and Scheduling Order that included the following new deadlines, to be modified "only upon a timely showing of good cause": plaintiff's expert report due on May 3, 2007; defendants' rebuttal expert report due by June 4, 2007; and expert depositions to be completed by June 15, 2007.

On May 23, 2007, defendants moved for an order (1) requiring plaintiff to submit to a physical examination pursuant to Federal Rule of Civil Procedure 35 and (2) extending the expert discovery schedule to allow for the unexpected hospitalization of Dr. Joseph Davis, the proposed examiner. Defendants argue that because plaintiff has placed his medical condition in controversy a physical examination is appropriate. Plaintiff opposed defendants' motion, citing the court's January 23, 2007, order and pointing out that: (1) defendants had waited until long after the close of fact discovery date of April 15 that had been established by that order, and seven business days before their expert report was due to make the request; and (2)that the proposed schedule would extend expert discovery by another two months, to August 15, 2007. Counsel noted that plaintiff will offer no expert opining on his present condition; and that defendants have been aware of plaintiff's claim since the inception of the action and have received voluminous documentation of plaintiff's medical condition around the time and after the May 8, 2005, incident in question, including depositions of four treating physicians.

On June 6, 2007, at oral argument before the magistrate judge, defendants stated that the examination was required because plaintiff was claiming an ongoing injury, and defendants had learned only recently that plaintiff suffers from a hernia, or defect in the abdominal wall, that could explain his current symptoms and yet not be attributable to the events of May 8, 2005. Transcript of June 6, 2007, Oral Argument ("June 6 Tr.") at 7-11. The magistrate judge granted defendants' motion, provided (1) that the examination take place by June 27, 2007; (2) that defendants bear the associated costs; and (3) that it take place at a location near plaintiff's current residence in Pennsylvania on a day when he was not scheduled to be working.*fn3

On June 12, 2007, plaintiff's counsel wrote to defendants informing them that, since plaintiff had now decided not to seek an award of damages arising from any current physical pain and suffering, there was no need for a physical examination. Exh. B, Defendants' Letter, dated June 13, 2007 ("June 13 Letter"). On June 13, 2007, defendants informed the court of its position that an examination was in fact still necessary in view of a dispute between the parties as to the definition of the word "current." See June 13 Letter. In their letter in reply, dated June 14, 2007 ("June 14 Letter"), plaintiff's counsel stated that because plaintiff's current physical pain and suffering "is simply not 'in controversy,'" well-settled caselaw established that "a Rule 35 physical examination is not warranted." See June 14 Letter. Plaintiff's damages would be limited to the time period reflected in medical records already produced. Id.

On June 15, 2007, the magistrate judge reaffirmed his June 6, 2007, finding that the Rule 35 examination was capable of shedding light, "one way or another, on [plaintiff's] remaining claims about past harms"; as bolstering or undermining his credibility as a witness regarding "continuing physical consequences of the incident at issue"; and as reasonably calculated to lead to the discovery of admissible evidence regarding liability for past harms. Memorandum and Order dated June 15, 2007 ("June 15 Order") at 1-2.

On June 19, 2007, plaintiff informed the court of his intention to appeal the June 6, 2007 and June 15, 2007 orders, pursuant to Rule 72(a), and requested adjournment of the current deadlines. On the same day defendants informed the court of their refusal to consent to such adjournment, and of their insistence on the examination going forward. On June 20, 2007, the present appeal was filed.

On June 21, 2007, a telephone status conference was held at the conclusion of which the magistrate judge granted a stay during the appeal as requested by the plaintiff, and denied defendants' request to have the Rule 35 examination take place in New York instead of ...

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