Haddock v. Westrock CP, LLC ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOSE HADDOCK, Case No. 1:19-cv-01390-SKO 10 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR AN ORDER 11 v. PERMITTING EXAMINATION OF PLAINTIFF AND GRANTING IN PART 12 REQUEST TO MODIFY SCHEDULING WESTROCK CP, LLC, ORDER 13 Defendant. 14 _____________________________________/ (Doc. 51) 15 16 On August 12, 2021, Defendant Westrock CP, LLC filed a motion for an order permitting 17 the examination of Plaintiff Jose Haddock and to modify the case schedule. (Doc. 51.) Defendant 18 also sought an order shortening time to hear the motion. (Doc. 52.) By order entered that same day, 19 the Court granted Defendant’s request to shorten time and set an expedited briefing schedule for its 20 motion. (Doc. 53.) On August 16, 2021, Plaintiff timely filed an opposition to the motion (Doc. 21 57), and the matter was taken under submission (see Doc. 53). 22 For the reasons set forth below, the Court will grant Defendant’s motion for an order 23 permitting the examination of Plaintiff and grant in part the motion to modify the scheduling order. 24 I. BACKGROUND 25 On August 27, 2019, Plaintiff initiated this personal injury action in the Superior Court of 26 the State of California for the County of Tulare. (Doc. 1-2.) Defendant removed the action to this 27 Court on October 3, 2019, based on diversity jurisdiction, 28 U.S.C. § 1332. (Doc. 1.) In the 28 operative complaint, Plaintiff, a truck driver, alleges that Defendant negligently failed to secure 1 properly pallets of cardboard in the trailer he was towing. (Doc. 1-2.) He pleads that when he 2 opened the trailer, the pallets fell out and knocked him to the ground, causing him to sustain a 3 traumatic brain injury. (Id.) 4 In response to interrogatories, Plaintiff attributed the following injuries to the incident: 5 Loss of consciousness, concussion, traumatic brain injury, post-concussion syndrome, seizures, memory problems, anger problems, depression, paranoia, 6 nightmares, personality changes, headaches, neck pain, left shoulder pain, left elbow 7 pain, right hip pain, damage to teeth, right arm pain, dizziness, vertigo, tinnitus, [and] loss of sense of smell. 8 9 (Doc. 51-2, Declaration of Kevin K. Cholakian (“Cholakian Decl.”) ¶ 2, Ex. A, Interrogatory No. 10 4.) Plaintiff has received medical treatment for his alleged injuries as recently as June 2021. (See 11 id., Ex. B.) 12 On August 2, 2021, in response to the parties’ cross-motions seeking modification of the 13 case schedule, the Court enlarged the expert and motion deadlines by approximately 45 days. (See 14 Doc. 47.) The Court noted that such enlargement would “allow for Defendant to designate a rebuttal 15 expert(s) based on information learned during discovery . . . and to seek a medical examination of 16 Plaintiff.” (Id.) Currently, the rebuttal expert disclosure and expert discovery deadlines are August 17 23 and September 7, 2021, respectively. (See id.) 18 Following the Court’s modification of the case schedule, defense counsel sent an email to 19 Plaintiff’s counsel, Ms. Russell, inquiring if Plaintiff would be willing to stipulate to an independent 20 medical examination by neurologist Harvey Lawrence Edmonds, M.D. (Doc. 51-2, Cholakian Decl. 21 ¶ 6, Ex. D.) On August 6, 2021, Plaintiff’s counsel, Mr. Watters, spoke with defense counsel, who 22 indicated that Plaintiff would not agree to the examination. (See id. ¶ 7, Ex. E.) 23 Defendant filed the instant motion on August 12, 2021. 24 II. DISCUSSION 25 A. Motion for an Order Permitting Examination of Plaintiff 26 Pursuant to Federal Rule of Civil Procedure 35, Defendant seeks an independent medical 27 examination of Plaintiff on September 1, 2021, at 11:00 a.m. by Dr. Edmonds in Fresno, California. 28 The examination will relate to Plaintiff’s alleged traumatic brain injury, including related complaints 1 and symptoms. 2 In relevant part, Rule 35(a) provides: 3 (1) In General. The court where the action is pending may order a party whose mental or physical condition–including blood group–is in controversy to submit to 4 a physical or mental examination by a suitably licensed or certified examiner. 5 Such order “(A) may be made only on motion for good cause and on notice to all parties and the 6 person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the 7 examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2)(A)-(B). 8 The “in controversy” and “good cause” requirements of Rule 35 “. . . are not met by mere 9 conclusory allegations of the pleadings—nor by mere relevance to the case—but require an 10 affirmative showing by the movant that each condition as to which the examination is sought is 11 really and genuinely in controversy and that good cause exists for ordering each particular 12 examination.” Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). “Of course, there are situations 13 where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence 14 action who asserts mental or physical injury . . . places that mental or physical injury clearly in 15 controversy and provides the defendant with good cause for an examination to determine the 16 existence and extent of such asserted injury.” Id. at 119. 17 Defendant asserts that Plaintiff has placed his physical and mental condition in controversy 18 because his claim arises from personal injuries sustained in the accident, including an alleged 19 traumatic brain injury, as evidenced by the complaint and Plaintiff’s responses to discovery. (Doc. 20 51-1 at 5.) Defendant states that an earlier examination would have been premature, as Plaintiff’s 21 June 2021 medical records show that his treatment and condition are “evolving.” (Id.) Defendant 22 contends that, as a rebuttal expert, Dr. Edmonds must conduct an examination of Plaintiff to provide 23 an “independent basis for his opinion and medical conclusions,” including his opinion on the 24 accuracy of data relied on by Plaintiff’s experts. (Id.) Defendant states that the examination “will 25 consist of all necessary and customary activities required to make such a determination, including 26 but not limited to medical history, history of the accident in question, physical examination, and 27 neurological examination,” and that “[n]o questions will be asked by Dr. Edmonds beyond those 28 necessary to ascertain Plaintiff’s medical condition, as it related to his claims in this lawsuit.” (Doc. 1 51-1 at 6.) Defendant notes that Dr. Edmonds is licensed and certified to conduct the examination. 2 (Id. at 5.) 3 Plaintiff does not contend that if Defendant had requested the medical exam earlier, it would 4 have been improper or not supported by good cause. Rather, his opposition focuses entirely on the 5 alleged untimeliness of the examination after the expert disclosure deadline and lack of diligence 6 by Defendant, citing Wormuth v. Lammersville Union Sch. Dist., No. 2:15-cv-1572-KJM-EFB 2017 7 WL 3537257 (E.D. Cal. 2017). 8 Based on the all the facts and arguments presented, the Court finds good cause to order the 9 independent mental examination of Plaintiff to be conducted by Dr. Edmonds. Review of the 10 complaint and Plaintiff’s discovery responses shows that Plaintiff alleges a traumatic brain injury 11 and related symptoms. (See Doc. 1-2; Doc. 51-2, Cholakian Decl. ¶ 2, Ex. A, Interrogatory No. 4). 12 He has therefore placed that injury in controversy and provided Defendant with good cause for an 13 examination to determine the existence and extent of the alleged injury. 14 Wormuth, which required an expert's Rule 35 mental examination report to be produced at 15 time of expert's designation, is not controlling. As more recently observed, “courts within the 16 Eastern District of California have previously held that a Rule 35 examination is properly part of 17 expert discovery.” See Dionicio Martinez v. Cty. of Fresno, No. 1:18cv00793LJOBAM, 2019 WL 18 6117739, at *3 (E.D. Cal. Nov. 18, 2019) (citing Narayan v. Compass Grp. USA, Inc., No. 2:17-cv- 19 00999-MCE-CKD, 2019 WL 265109, at *3 (E.D. Cal. Jan. 18, 2019) (determining that a Rule 35 20 medical examination may occur as part of expert discovery and noting that courts in this district 21 have held that such an examination is properly part of expert discovery)). As both the motion and 22 the examination occur prior to the current close of expert discovery, they are not untimely. Nor 23 does the Court find an “unacceptable lack of diligence” by Defendant. See Wormuth, 2017 WL 24 3537257, at *4. Plaintiff’s recent treatment records from June 2021 show that his condition is 25 developing, thereby justifying waiting to seek an examination. (See Doc. 51-2, Cholakian Decl. ¶ 26 3, Ex. B.) 27 The Court shall therefore order Plaintiff to appear for a medical examination by Harvey 28 Lawrence Edmonds, M.D., on September 1, 2021, at 11:00 a.m., at 728 East Bullard Avenue, Suite 1 104, Fresno, California, 93710. The examination shall encompass only those aspects considered 2 necessary and customary by Dr. Edmonds for evaluating the physical and mental condition of 3 Plaintiff as it pertains to his traumatic brain injury and related complaints and symptoms, as they 4 relate to his negligence claim. See Fed. R. Civ. P. 35(a)(2)(B) (an order requiring an exam “must 5 specify the time, place, manner, conditions, and scope of the examination, as well as the person or 6 persons who will perform it.”)1 7 B. Request to Modify Scheduling Order 8 Defendant seeks, once again, to modify the case schedule to extend the current rebuttal 9 expert witness disclosure deadline and expert discovery deadlines. (Doc. 51-1 at 6–7.) Defendant 10 asserts that an enlargement of the rebuttal expert disclosure deadline from August 23 to September 11 28, 2021 is needed to allow Dr. Edmonds to review Plaintiff’s medical data and to examine Plaintiff. 12 (Id. at 6.) Defendant does not explain why the expert discovery deadline should be enlarged from 13 September 7 to October 15, 2021, but presumably it is to allow Plaintiff time to conduct discovery 14 related to Dr. Edmonds. Plaintiff’s position is that there is no good cause to allow Defendant to 15 designate a rebuttal expert. 16 Given defense counsel’s representation that September 1, 2021, is the earliest the 17 independent medical examination can be performed, the Court agrees that an enlargement of time 18 is warranted—but not to the extend requested by the Defendant. Presumably Dr. Edmonds has or is 19 in the process of reviewing Plaintiff’s medical data and the discovery in the case, as he has already 20 been retained as a rebuttal expert and counsel has already been coordinating the transmission of that 21 information in advance of the current deadline of August 23, 2021. (See Doc. 51-2, Cholakian Decl. 22 ¶ 5, Ex. C; Doc. 57 at 5.) Moreover, adopting Defendant’s proposed deadlines creates an 23 unworkable schedule, whereby the dispositive motion deadline predates expert disclosures and 24 discovery. Plaintiff’s objection to Defendant’s designation of a rebuttal expert is also moot, as the 25 Court has already permitted both sides to do so by previously continuing the deadline. (See Doc. 26 47.) 27 28 1 If Plaintiff is unavailable on this date, the parties are encouraged to agree to a similar workable date through meet and 1 Considering each party’s position, the Court finds that extending the rebuttal witness 2 disclosure deadline by two weeks to September 7, 2021, and extending the expert discovery 3 deadline by one week to September 13, 2021, will give Dr. Edmonds time to incorporate the 4 findings of his September 1, 2021 examination of Plaintiff into his report and to conduct any 5 discovery concerning it. More importantly, these modifications will maintain the integrity of the 6 remainder of the schedule, which was recently extended over Plaintiff’s objection. 7 III. CONCLUSION AND ORDER 8 For the reasons stated above, it IS HEREBY ORDERED that: 9 1. Defendant’s motion for an order permitting the examination of Plaintiff Jose 10 Haddock (Doc. 51) is GRANTED; 11 2. Plaintiff Jose Haddock shall be required to appear for an independent medical 12 examination before Harvey Lawrence Edmonds, M.D., to perform an examination 13 as necessary to evaluate the condition of Plaintiff as it pertains to his traumatic brain 14 injury and related complaints and symptoms, as they relate to his negligence claim, 15 on September 1, 2021, at 11:00 a.m., at 728 East Bullard Avenue, Suite 104, Fresno, 16 California, 93710, or on a similar date and time agreed to through meet and confer 17 of counsel; and 18 3. Defendant’s request to modify the case schedule (Doc. 51) is GRANTED IN PART. 19 The case schedule (Doc. 47) is MODIFIED as follows: 20 Matter Current Date Continued Date 21 Non-Expert Discovery July 22, 2021 No change 22 Rebuttal Expert Witnesses August 23, 2021 September 7, 2021 Disclosure 23 Expert Witness Discovery September 7, 2021 September 13, 2021 Non-Dispositive Motion September 13, 2021 No change 24 Filing Deadline 25 Hearing for Non-Dispositive October 20, 2021 No change Motions 26 Dispositive Motion Filing September 13, 2021 No change Deadline 27 Hearing for Dispositive November 3, 2021 No change Motions 28 1 Trial March 22, 2022 at 8:30 a.m. No change 2 3 4 IT IS SO ORDERED. 5 Dated: August 17, 2021 /s/ Sheila K. Oberto . 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28