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Dillon v. Auto-Owners Insurance Co.

United States District Court, D. Colorado

October 6, 2014

ROBIN DILLON, Plaintiff(s),
v.
AUTO-OWNERS INSURANCE COMPANY, Defendant(s)

ORDER REGARDING DEFENDANT'S MOTION FOR ORDER COMPELLING INDEPENDENT MEDICAL EXAMINATIONS AND REQUEST FOR MODIFICATION OF SCHEDULING ORDER (DOCKET NO. 13)

MICHAEL J. WATANABE, Magistarte Judge.

This matter is before the court on Defendant's Motion for Order Compelling Independent Medical Examinations and Request for Modifications of Scheduling Order (docket no. 13). The court has reviewed the subject motion (docket no. 13), the response (docket no. 15), and the Reply (docket no. 16). In addition, the court has taken judicial notice of the court's file and has considered applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law, and order.

In the subject motion (docket no. 13), Defendant seeks an Order from this court directing Plaintiff to undergo Fed.R.Civ.P. 35 examinations ("IME"). In particular, Defendant requests that Plaintiff undergo IMEs with Dr. Hal Wortzel, M.D., a board certified neurologist and psychiatrist; Dr. Stephen Kalat, Ph.D, a neuropsychologist; and Dr. Rachel Basse, M.D., a physiatrist. Defendant argues that it needs these three IMEs in order to evaluate Plaintiff's claim for UIM benefits, including her claim that she sustained the alleged serious injuries in the July 1, 2009, auto accident and that she has incurred past and future medical expenses and other damages related to these alleged injuries. Furthermore, Defendant argues that Plaintiff's refusal to undergo these IMEs violates the Plaintiff's obligations under the subject UIM Policy.

FINDING OF FACT AND CONCLUSIONS OF LAW

The court finds:

1. That I have jurisdiction over the subject matter and over the parties to this lawsuit;
2. That venue is proper in the state and District of Colorado;
3. That each party has been given a fair and adequate opportunity to be heard;
4. That Plaintiff claims in this case that she suffered depression and anxiety as a result of the July 1, 2009, auto accident and that she also suffered cognitive and neurological defects as a result of sustaining an alleged traumatic brain injury from the auto accident. Plaintiff has endorsed Dr. Robert Kurtz, a psychiatrist, to testify regarding Plaintiff's psychiatric condition. In addition, Plaintiff has been treated by Dr. Cohen, a neurologist, for neurological injuries she attributes to the auto accident, and by Dr. Hinman, a primary care doctor. Both of these doctors will testify that Plaintiff sustained a concussion as a result of the auto accident. Furthermore, Plaintiff has been treated by Dr. Lemmon, a neuropsychologist, and it is clear that Plaintiff's neuropsychological issues have been at issue in this case even before this case was filed in this court. Lastly, Plaintiff claims that she sustained musculoskeletal injuries as a result of the auto accident, and she has endorsed experts to testify that the auto accident caused these injuries. See Exhibit 1, attached to Reply (docket no. 16);
5. That causation of Plaintiff's alleged mental and physical injuries, as outlined in more detail above, are clearly at issue in this case. A major dispute in this case is whether the alleged injuries, as cited above in more detail, were caused by the July 1, 2009, auto accident. The primary theory of the case by the Defendant is that Plaintiff's alleged injuries are not causally related to the July 1, 2009, auto accident. Also, the issue of apportionment is clearly in controversy in this case;
6. A scheduling order "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). To determine whether good cause exists, the court must consider: "(1) whether trial is imminent; (2) whether the request to reopen or extend discovery is opposed; (3) whether the non-moving party would be prejudiced; (4) whether the moving party was diligent in obtaining discovery within the guidelines established by the Court; (5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the Court; and (6) the likelihood that the discovery will lead to relevant evidence." Benton v. Avedon Eng'g, Inc., No. 10-cv-01899-RBJ-KLM, 2013 WL 1751886, *1 (D. Colo. Apr. 23, 2013) (citing Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)). "With regard to the fourth factor, the Tenth Circuit has explained that [d]emonstrating good cause under [Rule 16(b)(4)] requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.'" Id . (quoting Strope v. Collins, 315 F.Appx. 57, 61 (10th Cir. 2009)) (other quotations omitted);
7. That the Final Pretrial Conference is not set until March 30, 2015. See docket no. 10;
8 That the Trial Preparation Conference is not set until August 28, 2015, and the Jury Trial is not set until September 21, 2015. See docket no. 10;
9. That any modification to the Rule 16 Scheduling Order (docket no. 11) will not prejudice the Plaintiff and will not burden the court's trial ...

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