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Waller v. Lovingier

United States District Court, D. Colorado

April 12, 2016

BRADY LOVINGIER, in his individual capacity, [1] Defendant.


Nina Y. Wang United States Magistrate Judge

This matter comes before the court on Defendant Brady Lovingier’s (“Defendant”) Second Motion to Compel Fed.R.Civ.P. 35 Examination (“Motion for an IME”) [#159, filed Mar. 29, 2016]. This motion was 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 Memorandum dated March 30, 2016 [#160]. The court has reviewed the Parties’ briefing, including Plaintiff’s Response in Opposition to Defendant Brady Lovingier’s Second Motion to Compel Fed.R.Civ.P. 35 Examination [#166], the entire docket, and the applicable case law. For the reasons set forth herein, the court rules as follows.


The court recently recounted the procedural history of this case in its Orders dated March 8, 2016 [#149] and March 22, 2016 [#157]. The court repeats the previously-recited procedural history in this Order only to the extent necessary and pertinent to the present motions.

The present Motion for an IME follows a series of motions between the parties pertaining to an issue Defendant argues was raised for the first time in the designation of Plaintiff’s affirmative expert. In particular, Defendant argues that Plaintiff’s expert opined for the first time in his report that Mr. Waller suffers from pseudobulbar affect disorder.

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 Plaintiff’s “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, making it necessary for Defendant’s medical expert to perform an independent medical examination (“IME”) in order to rebut this opinion.[3] [#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. Defendant then filed a Motion to Compel Fed.R.Civ.P. Examination on March 10, 2016, requesting that Dr. Wortzel be permitted to perform the IME on Mr. Waller on March 25, 2016. [#151].

On March 21, 2016, Defendant filed a Second Motion for Extension of Rebuttal Expert Deadline. [#155]. In this motion, Defendant represented that Dr. Wortzel had identified a potential conflict that precludes him from serving as an expert in the present case. See [#155 at 3]. In particular, Dr. Wortzel stated that it is clear that Mr. Waller is a veteran receiving treatment at the Denver Veteran’s Administration (“VA”), and that due to the nature of his symptoms, diagnoses, and/or complaints, there is a substantial likelihood that he would be referred to one of the services that Dr. Wortzel directs. [Id.]. Mr. Wortzel explained that due to the sub-specialty and niche nature of the work and services he provides, he was concerned that there would not be any other providers at the VA who could render similar services to Mr. Waller. [Id.]. Due to Dr. Wortzel’s perceived conflict of interest, Defendant identified a second expert, Dr. Stephen Moe, who could perform the proposed IME on Plaintiff.

On March 22, 2016, this court entered an Order denying the first Motion to Compel an IME by Dr. Wortzel as moot and granting Defendant’s Motion to Modify the Scheduling Order Regarding Rebuttal Expert Disclosures. [#157 at 7]. In the Order, the court directed Defendant to file a second motion for an IME directed specifically to the IME which Defendants request that Dr. Moe perform. [Id.]. Plaintiff objected to the March 22 Order, and the presiding judge, the Honorable Wiley Y. Daniel, overruled that objection on April 7, 2016. [#167]. This second motion for an IME pertaining to Dr. Moe’s proposed examination is currently pending before the court. See [#159, filed Mar. 29, 2016].


Defendant requests that the court enter an order permitting Dr. Stephen Moe to perform a neuropsychiatric examination on Mr. Waller. See [#159 at 5]. Mr. Waller opposes this request for an IME, arguing that there has been no showing that a Rule 35 examination is necessary to rebut Plaintiff’s expert Dr. Machanic’s opinions and Defendant has not established good cause. See [#166 at 2].

Rule 35 of the Federal Rules of Civil Procedure provides that a court may order an independent medical examination of a party where the party’s mental or physical condition “is in controversy.” Fed.R.Civ.P. 35. Rule 35 requires an affirmative showing by the moving party that each condition as to which the examination is sought is really and genuinely in controversy and good cause exists for ordering each particular examination. See Schlangenhauf v. Holder, 379 U.S. 104, 118 (1964). “Good cause” indicates that the showing is more than mere relevance, and is not merely a formality. Id. Rather, the court weighs the need for information against the individual’s right to privacy. Id. The decision to grant or deny a Rule 35 examination is committed to the sound discretion of the court. See Simpson v. Univ. of Colorado, 220 F.R.D. 354, 362 (D. Colo. 2004). Because the “in controversy” and the “good cause” requirements often implicate the same factors, the court may consider both issues together. Id. “While Rule 35 should be construed liberally in favor of granting discovery, its application is left to the sound discretion of the court.” Id. (internal citations omitted). See Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 322 (N.D.Ga. 2000) (noting that the “factors reviewed in determining ‘good cause’ often merge with those requirements necessary to find that a plaintiff’s mental condition is ‘in controversy’”). Mr. Waller has alleged specific psychiatric conditions and Plaintiff’s expert, Dr. Machanic, issued an expert report in which he found that Mr. Waller has developed a neurologic disorder described as pseudobulbar affect disorder. See [#140-1 at 11]. The court finds good cause for the proposed IME, as Defendant has met his burden to show that it is necessary to rebut the opinion of Plaintiff’s expert. See Eckman v. Univ. of Rhode Island, 160 F.R.D. 431, 434 (D.R.I. 1995). Moreover, the record reflects that Dr. Machanic’s opinion is based on his own examination of Mr. Waller, which took place on January 28, 2016. See [#140-1 at 8].

Mr. Waller argues that Defendant has not shown good cause for the proposed IME because of Defendant’s delay in seeking this examination. See [#166 at 5]. This court disagrees. To the contrary, as the court has already found, this IME was necessitated by Mr. Waller’s own failure to disclose this medical condition during discovery until designation of his affirmative expert. Since that time, Defendant retained an expert to perform this examination, but that expert subsequently identified a conflict of interest, necessitating the hiring of a second expert. Nor is the court convinced by Mr. Waller’s argument that Defendant should have retained a different expert who hypothetically could have performed an IME at an earlier date. Mr. Waller makes no attempt to identify any such expert who would have been both qualified and had the schedule availability to do so. Nor does the court find on the record before it that Defendant ...

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