United States District Court, D. Colorado
KIM L. BRYANT, and KIMBERLY D. BRYANT, Plaintiffs,
DILLON REAL ESTATE COMPANY, INC., MINI MART, INC., and THE KROGER COMPANY, INC., Defendants.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants' Motion for Rule 35 Exam
[filed July 24, 2019; ECF 48]. The Court heard the
motion on July 24, 2019 and ruled on all issues raised except
two: first, whether the examiner must produce a copy of his
complete file to the Plaintiffs, including notes and draft
reports, at the time he issues his final report and, second,
whether the examiner must provide copies of the last sixty
reports he issued involving the same condition(s) as
Plaintiff Kim Bryant (“Kim”). As to these last
issues, the Court will grant in part and deny in
part Defendants' motion.
initiated this action on November 23, 2017 in the District
Court for the County of Boulder, Colorado, and Defendants
answered at the same time they removed the action to this
Court on February 26, 2018. In essence, Plaintiffs allege
that Defendants owned and were responsible for the conditions
at a “Loaf ‘N Jug” convenience store, at
which Kim slipped on ice and sustained physical and mental
injuries. See Compl. ¶¶ 8-17. In addition
to other forms of relief, Plaintiffs seek recovery for
injuries including “to [Kim's] head, neck, shoulder
and back, along with mental and emotional stress, grief,
inconvenience, loss damages for emotional distress,
humiliation, loss of enjoyment of life, and other pain and
suffering on all claims allowed by law.” Id.
at ¶ 28.
this motion, Defendants seek an independent psychiatric
examination (“IPE”) of Kim, who suffers ongoing
cognitive, psychological, and emotional problems from a
traumatic brain injury he allegedly sustained from the slip
and fall. Mot. 2. Defendants contend that Gary Gutterman,
M.D. is “qualified to assess Plaintiff's alleged
injuries, his current condition, and his need for future
treatment.” Id. at 5-6. Plaintiffs counter
that Dr. Gutterman “has a reputation as a biased
physician that routinely provides retained medical
examination reports to help Defendants and insurers attempt
to reduce the value of claims asserted against them.”
Pls. Br., ECF 52. In light of such “bias, ”
Plaintiffs argue that certain conditions (identified above)
should be imposed on the IPE to ensure as
“independent” an exam as possible. Id.
Defendants assert that Plaintiffs fail to demonstrate good
cause for the requested conditions. The Court will address
each condition in turn.
of the Federal Rules of Civil Procedure permits the court to
order a party to submit to an independent examination by a
suitably licensed or certified examiner when the party's
“mental or physical condition ... is in
controversy” and where the moving party has shown
“good cause” for the requested examination. The
court “must specify the time, place, manner,
conditions, and scope of the examination, as well as the
person or persons who will perform it.” See
Fed. R. Civ. P. 35(a)(2)(B). While Rule 35 should be
construed liberally in favor of granting discovery, its
application is left to the sound discretion of the court.
Simpson v. Univ. of Colo., 220 F.R.D. 354, 362 (D.
Colo. 2004) (citing Eckman v. Univ. of R.I., 160
F.R.D. 431, 433 (D.R.I. 1995)).
plaintiff in a negligence action who asserts mental or
physical injury ... places that mental or physical injury
clearly in controversy and provides the defendant with good
cause for an examination to determine the existence and
extent of such asserted injury.” Schlagenhauf v.
Holder, 379 U.S. 104, 119 (1964). Where a plaintiff
claims ongoing mental harm, the plaintiff has placed his or
her mental state in controversy. Duncan v. Upjohn
Co., 155 F.R.D. 23, 25 (D. Conn. 1994) (citing
Tomlin v. Holecek, 150 F.R.D. 628, 630 (D. Minn.
1993) (the “in controversy” and “good
cause” requirements of Rule 35 are merged when a
plaintiff claims an ongoing mental injury in a negligence
whether Defendants have shown good cause for the examination
is not at issue since, at the hearing, the Court found good
cause for Defendants to seek an IPE of Kim and for Plaintiffs
to place certain conditions on the IPE. At issue here is
whether the Plaintiffs can demonstrate good cause for the
remaining conditions they seek to place on the examination.
Whether Examiner Must Provide Complete File Including
Notes and Draft Reports
assert that they “seek production of all reports,
notes, drafts, and other materials from Dr. Gutterman's
file in conjunction with his Fed.R.Civ.P. 35 examination of
[Kim].” Br. 5, ECF 52. Defendants argue that Plaintiffs
have failed to demonstrate good cause for this request
because “allegations of bias and prejudice are not
sufficient for the imposition of FRCP 35 conditions”
and because draft expert reports are protected from
disclosure by Fed.R.Civ.P. 26(b)(4)(B). Defendants assert
they have retained Dr. Gutterman as a “rebuttal expert.
Thus, he is a FRCP 26(a)(2)(B) expert whose reports and
communications fall within the purview of FRCP
26(b(4)(B).” Br. 7, ECF 51. Citing the unpublished
opinions of two courts outside the Tenth Circuit, Plaintiffs
counter that they are entitled to Dr. Gutterman's draft
reports pursuant to Rule 35(b). Under the plain language of
the rules, and guided by the applicable advisory committee
notes, the Court finds Plaintiffs are not entitled to
production of Dr. Gutterman's notes and draft reports.
to the extent that Plaintiffs rely on Dr. Gutterman's
apparent “bias” as a retained expert for
demonstrating good cause, such concern is insufficient to
convince the Court to choose a different examiner.
Simpson, 220 F.R.D. at 363 (citing Looney v.
Nat'l R.R. Passenger Corp., 142 F.R.D. 264, 266 (D.
Mass. 1992) (generally, objections based upon the potential
bias or prejudice of the chosen physician will be left for
trial and cross-examination))
the Court finds that the production of Dr. Gutterman's
report is governed by rules other than, and in addition to,
Fed.R.Civ.P. 35. Rule 35(b) provides that “[t]he party
who moved for the examination must, on request, deliver to
the requester a copy of the examiner's report.”
Fed.R.Civ.P. 35(b)(1). “The examiner's report must
be in writing and must set out in detail the examiner's
findings, including diagnoses, conclusions, and the results
of any tests.” Fed.R.Civ.P. 35(b)(2). Nothing in this
rule, including the committee notes, specifies that the
examiner must produce anything other than his final report in
accordance with Rule 35(b)(2) and “like reports of all
earlier examinations of the same condition.”
examiner is retained as an expert pursuant to Rule 26(a)(2),
the examiner is also subject to Rule 26(b)(4) governing
“trial preparation [regarding] experts.” Rule
26(b)(4)(B) governs the “Trial-Preparation Protection
for Draft Reports or Disclosures” and provides that
“Rules 26(b)(3)(A) and (B) protect drafts of any report
or disclosure required under Rule 26(a)(2), ...