United States District Court, D. Colorado
ORDER ON DISCOVERY MOTIONS
Nina Y. Wang United States Magistrate Judge.
This matter comes before the court on the Motion For Fed.R.Civ.P. 35 Examination of Plaintiff (“Motion for Rule 35 Examination”) [#38] filed by Defendant KC Woods Trucking, Inc. (“KC Woods”) on July 8, 2015, and Plaintiff’s Motion to Compel Production of the Unredacted Medical Examination Report Contained in the Driver Qualification File Previously Produced by Defendants (“Plaintiff’s Motion to Compel”) [#42] filed by Plaintiff Paul Wegner (“Plaintiff” or “Mr. Wegner”) on July 9, 2015. These motions were referred to the undersigned Magistrate Judge pursuant to an Order of Reference dated June 26, 2014 [#11], a Reassignment dated February 10, 2015[#17], and memoranda dated July 8, 2015 and July 9 [#43], respectively. Having now considered the motions and their responses, the applicable case law, and the docket, the court hereby GRANTS Defendant KC Woods Motion for Rule 35 Examination and GRANTS Plaintiff’s Motion to Compel.
This case arises from an automobile collision involving Mr. Wegner and a 2007 Freightliner Tractor owned by Defendant KC Woods driven by Defendant Dale Dahlquist (“Defendant Dahlquist” or “Mr. Dahlquist”). [#3]. On or about October 21, 2013, Mr. Wegner was driving his 2011 Subaru Legacy when Mr. Dahlquist attempted to change lanes, causing the trailed attached to the 2007 Freightliner Tractor to collide with Mr. Wegner’s vehicle. [Id. at ¶ 5]. Mr. Wegner asserts three claims against Defendants: (1) negligence against Mr. Dahlquist; (2) negligence per se against Mr. Dahlquist; and (3) respondeat superior against KC Woods Trucking. [Id. at 3-4]. In the Scheduling Order, Plaintiff claimed damages for, inter alia, future loss of earnings and impairment of earning capacity, physical impairment, and disability. [#16 at 4]. Mr. Wegner did not, however, identify any specific calculation or bases for such relief, simply characterizing his damages as “[i]mpairment of earning capacity, physical impairment and disability, to be determined according to proof and/or retained expert evaluations.” [Id.]
The Parties have engaged in discovery involving a number of issues, including Mr. Wegner’s medical condition, the repercussions to his earning capacity, and Mr. Dahlquist’s qualifications as a tractor-trailer driver. On the first issue, Plaintiff has disclosed Helen M. Woodard, a Rehabilitation Counsel, as one of his experts, in which she indicated that Mr. Wegner “was interviewed by telephone and a personal contact is planned for the future.” [#38-4 at 1]. In her report, Ms. Woodard recites an extensive history from Mr. Wegner, including but not limited to facts about Mr. Wegner’s education, employment history, and medical history. [#38-4 at 1-14]. In doing so, it includes information clearly provided by Mr. Wegner, rather than through written records. See, e.g. [#38-4 at 1-2 (History), 14 (Current Status)].
As to Mr. Dahlquist’s driving qualifications, Mr. Dahlquist testified at deposition that he had no health issues that affected his ability to drive the tractor-trailer. [#42-4 at 43:14-16]. Plaintiff seeks additional information contained in Mr. Dahlquist’s Driver Qualification File and Application, namely, an unredacted version of his Medical Examination Report. While Defendants have produced a redacted copy of Mr. Dahlquist’s Medical Examination Report, Plaintiff argues that the Medical Examination Report is not protected by the Physician-Patient privilege, and without the unredacted report, Plaintiff cannot determine whether Mr. Dahlquist’s testimony regarding his health conditions is accurate or whether Defendant KC Woods had knowledge that Defendant Dahlquist was not medically qualified to operate the tractor-trailer, notwithstanding the Medical Examiner’s ultimate determination. [#42 at 6-7].
The court now turns to the issues at hand.
I. Rule 35 Examination
Mr. Wegner’s principal objection to a Rule 35 examination by KC Woods is that there is no good cause to subject Plaintiff to “what is essentially an unsupervised deposition by a Defendant’s Vocational Rehabilitation Expert because Defendant’s expert already has all the information necessary to assess the Plaintiff’s vocational capacity.” [#45 at 2]. Mr. Wegner further argues that “Rule 35 is not implicated where a Defendant ‘seeks a mere vocational assessment not connected with a physical or mental examination’” [id. at 2] and relies upon Storms v. Lowe’s Home Centers, Inc., 211 F.R.D. 296 (W.D. Va. 2002) and Yarosevich v. Toyota, et al., No. 05-cv-182-JD, 2008 WL 2329331 (D.N.H. June 5, 2008) to support its proposition that a Rule 35 examination is “not implicated.”
As an initial matter, the court respectfully disagrees with Plaintiff’s argument that Rule 35 is “not implicated” by Mr. Wegner’s use of a vocational rehabilitation expert to support his demand for future loss of earnings and impairment of earning capacity, physical impairment, and disability. Rule 35 provides that a court 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. Fed.R.Civ.P. 35(a)(1). The Storms court observed that it “has not been able to find a case in which a court holds that a vocational assessment does not fall within the Rule's definition of a ‘physical or mental examination.’” Storms, 211 F.R.D. at 297. The more appropriate inquiry is whether, under Rule 35 and the specific facts of this case, KC Woods has established good cause to warrant a limited examination. Id. I find that it has.
There can be no dispute that Mr. Wegner has put in controversy his vocational abilities not only through his demand for future loss of earnings and impairment of earning capacity, physical impairment, and disability, but also by specifically indicating that his impairment of earning capacity, physical impairment and disability will “be determined according to proof and/or retained expert evaluations” – not just through testimony of fact witnesses. [#16 at 4]. To do so, Plaintiff offers a vocational expert, Ms. Woodward, who has been permitted direct access to Mr. Wegner through a telephone interview and a contemplated “personal contact.”Ms. Woodward’s assessment of Mr. Wegner’s condition was therefore, not simply limited to written information, but also was ascertained through an interview of Plaintiff.
KC Woods simply asks for the same opportunity, and I find such request is reasonable so that its vocational expert may challenge, in her report or at trial, the testimony and opinions of Ms. Woodward. Mr. Wegner has not identified any basis to establish that such examination will be harmful to him. In addition, Plaintiff’s concern about an “unsupervised deposition” is misplaced. Presumably, Mr. Wegner will tell the truth, regardless of whether he is under oath and being “supervised” by counsel, and KC Woods will instruct Ms. Burns to refrain from asking about advice provided by Plaintiff’s counsel to Mr. Wegner. A deposition under Rule 30 would afford Plaintiff no greater protection, as objections in deposition (unless based on privilege) do not prevent an examination from proceeding, and must be stated concisely in a non-argumentative fashion. Fed.R.Civ.P. 30(c)(2).
Therefore, the court will allow an examination of Plaintiff by Defendant KC Woods’ vocational rehabilitation expert, limited to two hours, to ...