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Regan v. Trinity Distribution Services

July 2, 2008


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge



By order dated July 13, 2006, this matter has been referred to the undersigned for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(A) and (B). (Docket # 2).

Plaintiff Joseph Regan initiated this negligence action on June 22, 2006, against defendants Trinity Distribution Services, Inc. and Sonia M. Colon. In his Complaint, Regan alleges that he suffered injuries arising from a March 28, 2005 motor vehicle collision with a vehicle operated by defendant Colon during the course of her employment with defendant Trinity Distribution Services, Inc. (Docket # 1). By stipulation, defendants have conceded liability, thus leaving damages as the only issue remaining in dispute. (Docket # 15). Currently pending is defendants' motion for an order permitting their expert to conduct a physical examination of plaintiff. (Docket # 21).

A Scheduling Order was issued by this Court on March 13, 2007, requiring the parties to complete all factual discovery by May 15, 2007, and all expert discovery by October 1, 2007. (Docket # 10). No further extensions of those deadlines were sought from or granted by the Court. During the discovery period, defendants notified plaintiff's counsel of their intention to have plaintiff examined by a physician to evaluate his claimed injuries. The parties apparently agreed that the examination would be conducted after defendants had obtained Regan's relevant medical records.

A settlement mediation was scheduled with this Court for June 6, 2007. (Docket # 9). Prior to that date, defense counsel made a written request for an adjournment. (Docket # 21, Ex. C). In his letter, counsel indicated that Regan's medical examination had not yet been conducted due to a delay in obtaining his necessary medical records. Counsel characterized the physical examination as "central to the defendants' evaluation of the case" and explained that defendants could not make a "realistic or constructive offer in moving the case towards settlement" without such an examination. (Docket # 21, Ex. C). The Court granted the requested adjournment, and the mediation was rescheduled for August 28, 2007. (Docket # 17).

The Court again adjourned the mediation at defendants' written request. In the letter request, counsel for defendants explained that a second adjournment was necessary because Regan was scheduled to undergo surgery on his shoulder and defendants' medical expert wanted to allow the surgery and a one-month recovery period to occur before conducting the medical examination. (Docket # 21, Ex. E). The mediation was rescheduled for October 24, 2007. (Docket # 18).

The October date fared no better and also was adjourned following another letter request by defendants. Counsel's letter, dated October 22, 2007, represented that defendants had not received all of the medical records relating to Regan's recent shoulder surgery and further indicated that, as a result, they "ha[d] been unable to have [their] examining physician evaluate the records . . . nor determine plaintiff's present status so that a fair and realistic evaluation [could] be completed." (Docket # 22, Ex. K). This Court granted defendants' request and rescheduled the mediation for December 4, 2007. (Docket # 19).

The mediation was finally conducted on December 4, 2007. At that time, defendants had not identified any expert witnesses or provided any expert reports as required by the Court's Scheduling Order. During the conference, counsel for defendants nonetheless indicated to the Court that they still wanted to conduct an expert physical examination of Regan. When advised of defendants' intent, plaintiff's counsel objected and maintained that defendants had waived their rights to conduct an examination or utilize an expert because they failed to do either before the applicable court-imposed discovery deadlines had expired. In view of plaintiff's objection, the Court advised defendants' counsel that he would need to file a motion seeking permission to conduct the examination.

On March 3, 2008, defendants filed their instant motion seeking an order permitting the physical examination of Regan, pursuant to Rule 35 of the Federal Rules of Civil Procedure. (Docket # 21).*fn1


Federal Rule 35 provides, in pertinent part:

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. . . . The order [] may be made only on motion for good cause and on notice to all parties and the person to be examined.

Fed. R. Civ. P. 35(a)(1-2). See Schlagenhauf v. Holder, 379 U.S. 104, 119-20 (1964) (Rule 35 requires affirmative showing that party's mental or physical condition is in controversy and that good cause exists for the examinations requested). Defendants propose to have ...

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