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Waller v. Lovingier

United States District Court, D. Colorado

March 22, 2016

ANTHONY WALLER, Plaintiff,
v.
BRADY LOVINGIER, in his individual capacity, [1]Defendant.

ORDER

Nina Y. Wang United States Magistrate Judge

This matter comes before the court on Defendant Brady Lovingier’s (“Defendant”) Motion to Compel Fed.R.Civ.P. 35 Examination (“Motion for an IME”) [#151, filed Mar. 10, 2016] and Defendant Brady Lovingier’s Second Motion to Modify the Scheduling Order Regarding Rebuttal Expert Disclosures (“Second Motion for Extension of Rebuttal Expert Deadline”) [#155, filed Mar. 21, 2016]. These motions were referred to the undersigned Magistrate Judge pursuant to the Order of Reference dated July 30, 2014 [#5], the Reassignment dated February 10, 2015 [#84], and the Memoranda dated March 11, 2016 [#152] and March 21, 2016 [#156]. The court has reviewed the Parties’ briefing, including Plaintiff’s Response in Opposition to Defendant Brady Lovingier’s Motion to Compel Fed.R.Civ.P. 35 Examination [#154], the entire docket, and the applicable case law. For the reasons set forth herein, this court hereby: (1) DENIES AS MOOT Defendant Brady Lovingier’s (“Defendant”) Motion to Compel Fed.R.Civ.P. 35 Examination [#151]; and (2) GRANTS Defendant Brady Lovingier’s Second Motion to Modify the Scheduling Order Regarding Rebuttal Expert Disclosures [#155].

BACKGROUND

The court recently recounted the procedural history of this case in its Order dated March 8, 2016. [#149]. The court repeats the previously-recited procedural history in this Order only to the extent necessary and pertinent to the present motions.

On August 14, 2015, Plaintiff filed a Motion for Extension of Time to Designate Affirmative Experts and to Extend Discovery Deadlines. [#114]. In that Motion, Plaintiff sought an additional 120 days to designate affirmative experts after Senior Judge Daniel ruled on a pending Recommendation and Objection to that Recommendation and any remaining Defendants filed their answers. [Id.]. On August 21, 2015, this court granted Plaintiff’s request to extend the expert deadline, setting the following deadlines: the affirmative expert deadline was set for December 17, 2015; the rebuttal expert deadline was set for January 15, 2016; and the discovery deadline was set for February 15, 2016. [#116]. Senior Judge Daniel issued his Order adopting the Recommendation on September 11, 2015 [#117], and as a result, the Parties ultimately had almost 120 days from the court’s order to designate affirmative experts.

The Parties propounded affirmative expert reports on February 1, 2016. [#140-1]. At that time, Plaintiff disclosed a report from Bennett I. Machanic, M.D. [Id. at 8]. In that report, Dr. Machanic opined that “The mental status is what is truly striking in spontaneous conversation suddenly without warning he begins crying and has actual tears. This occurs on multiple occasions and indeed very consistent not only with depression but also pseudobulbar affect disorder.”[2] [Id. at 11]. Defendant contends, and Plaintiff has provided no evidence to dispute, that Mr. Waller’s medical records produced prior to February 1, 2016 do not contain a diagnosis for pseudobulbar affect disorder. [#140 at ¶ 5, #143].

On February 19, 2016, prior to the deadline for exchanging rebuttal expert reports, Defendant moved the court for a modification of the Scheduling Order to extend the rebuttal expert deadline from March 1, 2016 to April 8, 2016 to allow for the designation of an expert “with experience in pseudobulbar affect disorder to review the file and complete an evaluation to determine if the medical history, neurologic injury and prior psychiatric history supports the diagnosis or if there are differential diagnosis issues that require evaluation.” [Id. at 3]. Defendant also indicated that its expert, Dr. Hal S. Wortzel, intended to perform an independent medical examination of Plaintiff. [#140 at ¶ 6]. Plaintiff objected to the extension as prejudicial because: (1) it would extend the pretrial dates in this matter; (2) Defendant was diligent in pursuing an expert disclosure during the required time frame; and (3) Defendant did not properly seek an independent medical examination.

On March 8, 2016, this court issued an Order granting in part Plaintiff’s motion for modification of the Scheduling Order regarding the deadline for rebuttal expert disclosures. See [#149]. The court granted an extension of the rebuttal expert deadline from March 1, 2016 to April 8, 2016, solely for the purpose of allowing Defendant’s expert, Dr. Wortzel, to rebut the expert opinions of Plaintiff’s expert, Dr. Bennett I. Machanic. However, the court found that Defendant would be required to submit a separate motion that met the requirements of Fed.R.Civ.P. 35 to the extent that Defendant would like its expert to perform an independent medical examination (“IME”) of Plaintiff. See [#149 at 10]. The court directed Defendant to file any such motion on or before March 10, 2016.

Currently pending before the court Defendant’s Motion for an IME performed by Dr. Wortzel [#151, filed Mar. 10, 2016] and Defendant Brady Lovingier’s Second Motion to Modify the Scheduling Order Regarding Rebuttal Expert Disclosures (“Second Motion for Extension of Rebuttal Expert Deadline”) [#155, filed Mar. 21, 2016].

ANALYSIS

I. Defendant’s Motion for an IME by Dr. Wortzel

On March 10, 2016, Defendant filed a Motion for an IME requesting, pursuant to Fed.R.Civ.P. 35, that the court enter an order permitting Defendant’s expert, Dr. Hal Wortzel, to perform an approximately three-hour long neuropsychiatric examination on Plaintiff Anthony Waller on March 25, 2016. [#151 at 1-2]. Defendant represented that this examination was necessary to rebut the opinion of Plaintiff’s expert, Dr. Bennett Machinac, that Plaintiff has developed a neurologic disorder described as pseudobulbar affect disorder. See [#151 at 2-3]. Plaintiff filed a response in opposition to the First Motion for an IME on March 17, 2016. [#154]. Plaintiff argued that the court should deny the motion because based on the examination, the rebuttal expert will provide differential diagnosis that are, in essence, new opinions that are improper as rebuttal opinions and instead should have been included in Defendant’s affirmative expert disclosures. [#154 at 2]. Plaintiff also argued that Defendant’s requested IME has a much broader scope than would be necessary if Defendant’s expert’s IME is for sole purpose of rebutting Plaintiff’s expert’s opinion on pseudobulbar affect disorder. [#154 at 6].

As reflected in Defendant’s March 21, 2016 Second Motion for Extension of Rebuttal Expert Deadline [#155], after Defendants filed the Motion for an IME to allow Dr. Wortzel to examine Mr. Waller, Dr. Wortzel identified a potential conflict that prevents him from acting as an expert in this case. See [id. at 3]. Accordingly, because Dr. Wortzel will not be providing an expert report for ...


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